Environmentalists seek to join sewage lawsuit

Bayou City Waterkeeper, the Houston nonprofit organization whose threat to sue the City of Baytown over wastewater overflow discharges prompted a federal and state lawsuit against the city, filed a motion to intervene in the lawsuit.

The intervention is not opposed by either the plaintiffs or the city, the organization’s attorney said.

“This is an important first step to address well-known sewage pollution in Baytown and Galveston Bay, and we intend to stay involved,” Bayou City Waterkeeper legal director Kristen Schlemmer said. “As intervenors in this process, we’ll work to give communities a real voice in shaping a just solution.”

The motion also asks the court to “award BCWK its costs, including reasonable attorney fees and expert witness fees.”

The legal issue is violations of the Clean Water Act that occur during rain events when stormwater runoff enters the city’s sanitary sewer system, causing it to overflow with a mixture of stormwater and untreated sewage.

That mixture then enters surrounding bays and bayous, either directly or through the storm drainage system.

The lawsuit claims that the city has released untreated wastewater more than 800 times since April of 2017, citing reports made by the city to the Texas Commission on Environmental Quality.

Since 2013, Baytown has been part of a 10-year Sanitary Sewer Overflow Initiative agreement with the environmental quality commission, which requires work upgrading its aging wastewater system.

In a press release responding to the lawsuit, Public Works and Engineering Director Frank Simoneaux said the city has devoted more than $83 million to system upgrades in the past 10 years and is negotiating a new agreement with the environmental quality commission.

In the lawsuit filed on behalf of the Environmental Protection Agency and the environmental quality commission, they ask the court to issue a permanent injunction ordering the city to correct deficiencies in the system and to assess civil penalties for violations.

Baytown has a wastewater collection system consisting of more than 460 miles of sewer mains, 85 lift stations and four treatment plants, according to data in the text of the lawsuit.

On its website, Waterkeeper says, “Baytown as a whole faces disproportionately large burdens of nearly every type of pollution measures. Baytown’s low-income populations of color particularly endure a larger burden of pollution.”

A map of wastewater discharges indicates that most are concentrated in the older parts of the city.

What happens next?

In an email response to The Baytown Sun, Schlemmer said she could only speak generally, as the case is in its early stages.

“In most cases of this nature, the focus ends up on creating a consent decree, which is a negotiated settlement that must be approved and overseen by a federal judge over several years,” she said.

In the city’s press release responding to the lawsuit, spokesman Jason Calder said, “The ultimate resolution of the negotiations is expected to be formalized in a Consent Decree that will be lodged and entered by a judge at some time in the future, after public review and comment.”

He said similar consent decrees have been ordered for other Texas cities, including Dallas, San Antonio, Corpus Christi, Houston and Tyler.

Tyler’s consent decree from 2017 provides some indication of what might be in store. Tyler is a bit larger than Baytown with about 104,000 population. It has a more extensive collection system, (about 600 miles, according to the EPA website with consent decree information) but fewer lift stations (22). Its alleged violations were also overflows.

It was ordered to conduct and extensive inspection of facilities and repair defects found and create ongoing cleaning, maintenance and operations improvements. It was given 10 years for full compliance. There was also a $563,000 civil penalty.

“In terms of the form of the consent decree, Tyler’s offers one example of a recently negotiated consent decree,” Schlemmer said. “The form likely will be similar, in terms of the subjects covered, but each consent decree must be customized to the particular vulnerabilities and problems of each sanitary sewer system.

“So while the Tyler consent decree can give you a sense of what these can look like, the final result should be more responsive to Baytown’s particular sewer problems,” she said.

 Procedurally, she said the next step is for Baytown to respond to the lawsuit, either with an answer or with a motion to dismiss.

Calder said the city does not have any additional response at this time.

A spokesman for the environmental quality commission declined comment on pending litigation.