Opinion issued September 24, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00104-CV ——————————— WHITE LION HOLDINGS, L.L.C., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 98th District Court Travis County, Texas Trial Court Case No. D-1-GV-13-001068
MEMORANDUM OPINION ON REHEARING
The trial court entered summary judgment for the State of Texas that White
Lion Holdings, L.L.C. violated the terms of a compliance plan issued by the Texas
Commission on Environmental Quality (TCEQ). White Lion appeals, arguing in
two issues that the trial court improperly denied its motion for continuance and that the summary-judgment evidence raised questions of material fact sufficient to
prevent summary judgment. We affirm. 1
Background
In 2006, the State initiated this lawsuit, alleging that White Lion violated a
waste-management compliance plan issued by TCEQ. The plan and a
contemporaneously-issued permit govern the monitoring, treatment, and
management of surface wastewater impoundments and a plume of contaminated
groundwater at a facility now owned by White Lion and formerly used for pipe
manufacturing in Rosenberg, Texas. During its operational life, the facility
generated hazardous wastewater that was treated on-site in a system that included
five surface impoundments. The prior owner of the facility, Vision Metals,
discovered that the impoundments were sources of groundwater contamination,
including elevated concentrations of cadmium, cobalt, lead, barium, chromium,
nickel, silver, zinc, iron, sulfate, and acidic compounds.
1 On April 9, 2015, we rendered our original opinion in this case. On May 26, 2015, White Lion filed three motions: a motion to supplement the record, a motion for rehearing, and a motion for rehearing en banc. It subsequently amended the motion for panel rehearing and the motion for rehearing en banc. We deny the motion to supplement the record and motion for panel rehearing, but withdraw our opinion and judgment of April 9, 2015, and issue this opinion and a new judgment in their stead. We dismiss the motion for rehearing en banc as moot. See, e.g., Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). 2 In 1988, the TCEQ’s predecessor, the Texas Natural Resources
Conservation Commission, issued Hazardous Waste Permit 50129-001 to Vision
Metals to govern the management, closure, and long-term care of the wastewater
impoundments. Contemporaneously, it issued to Vision Metals Compliance Plan
50129. The compliance plan has been modified several times since then.
White Lion acquired the facility in a bankruptcy sale in April 2004. At the
same sale, various third parties purchased machinery and equipment at the
property. According to White Lion, some of those third parties damaged the
facility while removing their property in the period from April 2004 through
August of that year. White Lion estimated the costs of repairs to exceed $1.4
million and initiated lawsuits to recover damages from the third parties.
Meanwhile, the existing permit and compliance plan were transferred to
White Lion. White Lion, however, did not provide the State with a required
“financial assurance” mechanism, such as a bond or irrevocable letter of credit,
guaranteeing its performance of its obligations under the permit and compliance
plan. It did, however, request an extension of time to provide such assurance.
White Lion also discussed with the United States Environmental Protection
Agency switching the site to a “plume management approach,” which would
simplify management of the site, but the EPA told White Lion that such an
approach was not feasible.
3 TCEQ gave White Lion an extension of time to address outstanding
compliance issues and submit an amendment to the compliance plan but did not
extend the time for White Lion to provide financial assurance. White Lion never
submitted any application to amend the compliance plan and never provided any
financial assurance.
In 2006, the State sued White Lion for violations of the compliance plan,
seeking civil penalties under the Water Code, unpaid hazardous waste facility fees,
an injunction to secure White Lion’s performance of its duties under the
compliance plan, and attorney’s fees. The State later amended its petition, naming
White Lion’s owner, Bernard Morello, as an additional defendant.
The case was set for trial in 2008, continued, set again in 2011, and
continued again. In August 2013, the State filed a motion for summary judgment.
White Lion responded, arguing in part that full compliance with the plan was
impossible, that it had complied to the extent possible, and that injunctive relief
was improper in the absence of a showing of a risk of irreparable injury. White
Lion also moved for a continuance to obtain an expert opinion on the costs and
feasibility of repairs to the site.
The trial court held a hearing at which it denied White Lion’s motion for
continuance and then granted the State’s motion for summary judgment. It entered
judgment that the State recover from White Lion (1) civil penalties of $325,600,
4 (2) unpaid hazardous waste facility fees of $129,464.15, (3) pre-judgment interest
on the unpaid hazardous waste facility fees, (4) attorney’s fees, (5) costs of court,
and (6) post-judgment interest.2 It also enjoined White Lion as follows: “White
Lion shall [immediately] comply with each limitation, requirement, and condition
of the Compliance Plan.” In the same order, the trial court severed the State’s case
against Morello, rendering the judgment against White Lion final. The State later
obtained summary judgment in the severed case against Morello.
In two issues, White Lion appeals, arguing, first, that the trial court erred in
denying White Lion’s motion for continuance and, second, that the trial court
improperly granted summary judgment because White Lion raised questions of
material fact. 3
Our Jurisdiction over this Appeal
On rehearing, White Lion argues for the first time that we lack jurisdiction
to hear this appeal. It argues that the State’s case against Morello was improperly
severed from the case against White Lion and that, under controlling authority, a 2 The original judgment incorrectly stated, under the heading “Post-Judgment Interest,” that “[t]he State shall recover pre-judgment interest on all amounts awarded in this judgment at the annual rate of 5.00%.” On the State’s motion, the trial court entered judgment nunc pro tunc correcting “pre-judgment” in that section to “post-judgment” and making other clerical corrections. 3 On January 7, 2014, the Texas Supreme Court ordered this appeal transferred from the Court of Appeals for the Third District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any conflict between the precedent of the Court of Appeals for the Third District and that of this Court on any relevant issues. See TEX. R. APP. P. 41.3. 5 judgment rendered after an improper severance is not an appealable, final
judgment. In support of this argument, White Lion has submitted to this Court
(1) the State’s motion for summary judgment against Morello, (2) Morello’s
response, (3) the final summary judgment against Morello, (4) Morello’s motion
for new trial, and (5) the “Trial Court Order, if any, denying Motion for New
Trial.” It asks that we grant leave to supplement the record to include these
documents and, having done so, hold that the severance was improper.
White Lion’s jurisdictional argument has three parts: (1) the State’s case
against Morello is based entirely on his status as the sole member of White Lion;
(2) the severance order is invalid because it (a) severs a single cause of action into
separate claims and (b) severs inextricably intertwined claims against different
parties; and (3) an invalid severance requires dismissal under the case law of the
Austin Court of Appeals where this appeal was originally filed.
We have jurisdiction only over final judgments “[u]nless there is a statute
specifically authorizing an interlocutory appeal.” Cherokee Water Co. v. Ross, 698
S.W.2d 363, 365 (Tex. 1985) (orig. proceeding) (per curiam); see Rusk State Hosp.
v. Black, 392 S.W.3d 88, 95 (Tex. 2012). “Jurisdiction over the subject matter of
an action may not be conferred or taken away by consent or waiver, and its
absence may be raised at any time.” Carroll v. Carroll, 304 S.W.3d 366, 367
6 (Tex. 2010) (per curiam) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993)).
Under Rule 41 of the Texas Rules of Civil Procedure, “[a]ny claim against a
party may be severed and proceeded with separately.” TEX. R. CIV. P. 41. “This
rule grants the trial court broad discretion in the matter of severance and
consolidation of causes.” Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793
S.W.2d 652, 658 (Tex. 1990) (citing McGuire v. Commercial Union Ins. Co. of
N.Y., 431 S.W.2d 347 (Tex. 1968)). “The trial court’s decision to grant a
severance will not be reversed unless it has abused its discretion.” Id. (citation
omitted). “A claim is properly severable if (1) the controversy involves more than
one cause of action, (2) the severed claim is one that would be the proper subject of
a lawsuit if independently asserted, and (3) the severed claim is not so interwoven
with the remaining action that they involve the same facts and issues.” Id.
(citations omitted).
The first step of White Lion’s argument is factually incorrect: the State’s
motion against Morello focuses on Morello’s actions and failures to act, as distinct
from White Lion’s actions and inactions. Among other theories, the State argues
that Morello is liable for penalties because (1) he purchased the site personally and
assigned it to White Lion, but did not himself comply with his own obligations
with respect to the site; (2) as a corporate officer, he can be held personally liable
7 for penalties under the Water Code; (3) he lacked the expertise to manage the site
and made no efforts to manage it until the State filed suit; and (4) he personally
took or failed to take actions that resulted in White Lion’s violation of the
compliance plan, such as removing the groundwater treatment system, throwing
away “monitoring well protective housing caps,” and directing White Lion not to
comply with the compliance plan in various ways.
The second step of White Lion’s argument is also flawed. The severance
order did not split one cause of action, but rather split two causes of action on the
same legal theory: one claim against each defendant. Nor did it split inextricably
intertwined claims. The claims against White Lion and those against Morello are
based on the Water Code, which imposes liability on any “person who causes,
suffers, allows, or permits a violation of a statute, rule, order, or permit relating to
any . . . matter within [TCEQ’s] jurisdiction to enforce.” TEX. WATER CODE. ANN.
§ 7.102 (West 2008). Statutes providing for liability of any “person” in violation
allow courts to render judgments against both corporate entities and their agents.
E.g., Miller v. Keyser, 90 S.W.3d 712, 715–18 (Tex. 2002) (because Deceptive
Trade Practices Act imposes liability on “any person” who violates it, both
companies and their agents can be held liable). The ways in which White Lion and
Morello allegedly violated the compliance plan are different. Moreover, to the
extent the facts supporting the State’s claims against White Lion are intertwined
8 with those supporting the claims against Morello, those facts are undisputed. No
party disputes, for example, that no monitoring is being performed at the site or
that the site’s remediation, monitoring, and control systems are offline, disabled,
dismantled, or missing entirely. In other words, the claims overlap only with
respect to facts that are conclusively established in the record, and there is no risk
that a severance would create inconsistent judgments.
In its motion for rehearing, White Lion also argues for the first time that the
severance violates the due process protections and prohibitions on excessive fines
in the United States and Texas Constitutions. It did not, however, preserve these
arguments by raising them in the trial court, nor did it raise them on appeal. “As a
rule, a claim, including a constitutional claim, must have been asserted in the trial
court in order to be raised on appeal.” Dreyer v. Greene, 871 S.W.2d 697, 698
(Tex. 1993). Both due-process and excessive-fines arguments can be waived.4 By
failing to preserve these arguments, White Lion has waived them. TEX. R. APP.
P. 33.1(a)(1).
4 E.g., In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (due process); Anderson v. McCormick, Nos. 01-12-00856-CV, 01-12-00857-CV, 2013 WL 5884931, at *3 (Tex. App.—Houston [1st Dist.] Oct. 31, 2013, no pet.) (mem. op.) (due process); Ratsavong v. Menevilay, 176 S.W.3d 661, 671 (Tex. App.—El Paso 2005, pet. denied) (due process); Konkel v. Otwell, 65 S.W.3d 183, 188 (Tex. App.— Eastland 2001, no pet.) (excessive fines); Armstrong v. Steppes Apartments, Ltd., 57 S.W.3d 37, 49 (Tex. App.—Fort Worth 2001, pet. denied) (both due process and excessive fines). 9 We hold that the trial court did not abuse its discretion by granting the
State’s conditional motion for severance. Because the severance was proper, we
need not reach the final step of White Lion’s argument: whether this Court, as the
transferee court of an appeal originally filed in the Austin Court of Appeals, can
exercise jurisdiction over a summary judgment that purports to be final but results
from an improper severance. Because the documents that White Lion has provided
from the State’s case against Morello are relevant only to its jurisdictional
arguments, we deny White Lion’s motion to supplement the record.
We have jurisdiction over this appeal. Accordingly, we proceed to the
merits.
Motion for Continuance
In its first issue, White Lion argues that the trial court erred in denying
White Lion’s motion for continuance. White Lion requested a continuance on two
occasions. First, in its response to the State’s motion for summary judgment, it
requested “that any hearing on [the motion] be reset for at least 90 days to give
[White Lion] time to consult with experts to determine what remedial action is
feasible.” In that response, it admitted that the facility’s mitigation and monitoring
systems had no electrical power and were not operational, arguing that
“[c]ompliance with the [Compliance] Plan has been rendered impractical and
commercially and economically [i]nfeasible by damages to the facility by third
10 parties.” White Lion then filed a motion for continuance, asking “that the court
reset the hearing [on] the State’s [motion for summary judgment] for 90 days . . . to
give [White Lion] time to confer with experts to determine the cost and feasibility
of restoring the existing remedial system and/or modifying the remedial system.”
According to White Lion, it “want[ed] to resolve this matter but need[ed] a
reasonable time to evaluate the situation.” In the motion, it acknowledged that it
needed “an extension to comply with TCEQ’s requests” and that, as of August
2013, White Lion “need[ed] to quickly come into full compliance with the existing
[compliance] plan.” The trial court denied the motion for continuance at the start
of the hearing on the motion for summary judgment.
A. Standard of review
We review a trial court’s ruling denying a motion for continuance for an
abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002); Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied). A trial court abuses its discretion when it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law. Marchand, 83 S.W.3d at 800. The trial court may order a continuance of a
summary judgment hearing if it appears “from the affidavits of a party opposing
the motion that he cannot for reasons stated present by affidavit facts essential to
justify his opposition.” TEX. R. CIV. P. 166a(g). In a first motion for continuance
11 based on the ground that testimony is needed, the affidavit supporting the motion
must (1) show that the testimony is material and (2) state that due diligence has
been used to procure the testimony, describing the diligence used and why it failed,
if known. TEX. R. CIV. P. 252. In determining whether there has been an abuse of
discretion, we view the evidence in the light most favorable to the trial court and
indulge every presumption in favor of the judgment. Hatteberg v. Hatteberg, 933
S.W.2d 522, 526 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing Parks v.
U.S. Home Corp., 652 S.W.2d 479, 485 (Tex. App.—Houston [1st Dist.] 1983,
writ dism’d)).
B. The trial court did not abuse its discretion
White Lion has not shown that the trial court abused its discretion by
denying the requested continuance. White Lion acquired the property in April
2004. TCEQ transferred the then-existing permit and compliance plan to White
Lion and issued a revised permit and compliance plan identifying White Lion as
the permittee and property owner in July 2004. The State initiated this suit in April
2006 and filed its motion for summary judgment in August 2013. White Lion thus
had possession of the property for over nine years and notice of the State’s claims
for more than seven years before the summary-judgment motion. But it admits
that it made no attempt to retain an environmental consultant during that period of
over nine years, waiting until just two weeks before the State filed its motion for
12 summary judgment to begin its search. White Lion makes no attempt in either its
motion for continuance or its appellate brief to explain why it could not have
retained an expert and obtained a report before that time.
Further, White Lion did not articulate in its motion for continuance why it
needed an expert’s opinion before the motion for summary judgment hearing. It
stated only that it wanted “time to confer with experts to determine the cost and
feasibility of restoring the existing remedial system and/or modifying the remedial
system.” But those were not issues before the trial court when it considered the
motion for summary judgment. That motion addressed only whether White Lion
had complied with the compliance plan and governing law and, if not, what civil
penalties, unpaid fees, and injunctive relief should be assessed against it. White
Lion’s evidence, if obtained, would have pertained to the cost of remediation, not
White Lion’s liability or the calculation of penalties or fees for its past
noncompliance. Indeed, White Lion made no attempt to connect the expert
opinions that it sought to any of the claims on which the State obtained summary
judgment.
We also note that the affidavit supporting the motion for continuance did
not describe the evidence that White Lion sought, show that the evidence is
material, state that due diligence has been used to procure the evidence, or describe
the diligence and why it failed, if known. TEX. R. CIV. P. 252.
13 Because White Lion failed to demonstrate that it needed a continuance to
obtain evidence essential to its defense, we hold that the trial court did not abuse its
discretion in denying the motion for continuance. Accordingly, we overrule White
Lion’s first issue.
Motion for Summary Judgment
In its second issue, White Lion argues that the trial court erred in granting
the State’s motion for summary judgment. White Lion contends that it
demonstrated the existence of genuine issues of material fact in five categories:
(1) whether its compliance was excused under the compliance plan’s force majeure
clause; (2) whether the State “misrepresented” to the trial court the financial
assurance requirements to which White Lion is subject; (3) whether the hazardous
waste permit fees awarded in the judgment were “legally valid”; (4) whether the
State provided sufficient evidence to obtain injunctive relief; and (5) whether the
State improperly sought judgment as to lands owned by White Lion but not subject
to the permit or compliance plan. We will address each argument in turn.
We review a trial court’s grant of summary judgment de novo. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). Rule of Civil Procedure 166a(c) provides that a movant is entitled to
summary judgment if the summary-judgment evidence establishes that “there is no
14 genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law on the issues expressly set out in the motion or in an answer or
any other response.” TEX. R. CIV. P. 166a(c); Am. Tobacco Co., Inc. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997). “Issues not expressly presented to the trial court
by written motion, answer or other response shall not be considered on appeal as
grounds for reversal.” TEX. R. CIV. P. 166a(c).
B. White Lion’s noncompliance was not excused
White Lion first argues that its failure to comply with the compliance plan
was excused under the plan’s force majeure clause, which provides that “non-
compliance with one or more of the provisions of this Compliance Plan may be
justified only to the extent and for the duration that non-compliance is caused by a
‘Force Majeure’ event . . . .” The compliance plan defines “Force Majeure” as “an
event that is caused by an Act of God, labor strike, or work stoppage, or other
circumstance beyond the Permittee’s control that could not have been prevented by
due diligence, and that makes substantial compliance with the applicable provision
or provisions of this Compliance Plan impossible.”
According to White Lion, the evidence that it submitted in response to the
State’s motion for summary judgment raised a fact issue as to whether the force
majeure clause applies due to actions taken by third parties that damaged the
facility. When it purchased the facility, other buyers purchased equipment located
15 at the facility, and the bankruptcy court required it to give those buyers access to
the facility to remove the machinery and equipment that they had purchased.
According to White Lion, some of those buyers caused significant damage to the
property, resulting in the virtual destruction of the electrical system and
disconnection of all electrical power. It estimates that repairing the electrical
system, which is necessary to operate corrective equipment, will cost at least
$500,000. White Lion has sought to recover damages from certain of the
equipment buyers and their contractors, with varying success. It argues that,
without such recoveries, the damages caused by these third parties made its
“compliance with the Compliance Plan . . . a physical impossibility when it
acquired the Property.” It also argues that compliance was “impractical and
commercially and economically infeasible.” Thus, according to White Lion, there
is a fact issue regarding whether its noncompliance was excused.
The State argues that White Lion did not preserve this argument for appeal
because it did not mention the force majeure clause or the concept of force majeure
in its response to the motion for summary judgment. The State is correct. White
Lion has waived its contractual force majeure argument on appeal. See TEX. R.
CIV. P. 166a(c); TEX. R. APP. P. 33.1(a). But White Lion’s response argued that
compliance was “rendered impractical and commercially and economically
16 [i]nfeasible by damages to the facility by third parties.” It has therefore preserved
a common-law excuse-by-impossibility argument.5
White Lion did not introduce any evidence that it could not control, mitigate,
or, after the fact, remediate the actions of third parties at the site, even though it
acknowledges that such actions ceased by August 2004, more than a decade before
the trial court entered summary judgment. While it attached to its response to the
motion for summary judgment pleadings from various lawsuits that it has filed
against third parties, none of those pleadings was verified or sworn. At most, those
documents demonstrate the nature of White Lion’s claims against those parties.
They do not demonstrate that the claims are true, much less that the cost of
repairing the damage caused by third parties rendered compliance with the
compliance plan impossible at any point in time. Nor did White Lion demonstrate
that it was unable to pay the costs of the necessary repairs.
We hold that White Lion failed to raise a fact issue with respect to whether
its noncompliance with the compliance plan was excused.
5 The State argues that no such excuse is possible because “White Lion’s defenses are limited to those set forth in the Compliance Plan and the Texas Water Code.” We need not address this argument because, even assuming that the economic impossibility defense is available, White Lion has failed to demonstrate that a fact issue exists regarding that defense. 17 C. White Lion admitted that it did not meet its financial assurance requirements
White Lion next contends that the State “misrepresented” facts to the trial
court, specifically that (1) White Lion was required to maintain $574,000 in
“financial assurance,” guaranteeing its performance of its obligations; (2) White
Lion never provided any financial assurance to the State; and (3) White Lion was
required to maintain financial assurance in the amount set by the original 1988
compliance plan, even though the costs of remaining post-closure work at the
facility were much lower.
As a threshold matter, we note that the State adduced evidence that White
Lion violated the compliance plan in numerous ways, not merely by failing to
provide financial assurance. “When the trial court does not specify the basis for its
summary judgment, the appealing party must show it is error to base it on any
ground asserted in the motion.” Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995). For the reasons below, we hold that the evidence supports the State’s
arguments in its motion for summary judgment regarding White Lion’s financial-
assurance obligations.
TCEQ is required to establish a compliance plan governing “compliance
monitoring and corrective action for facilities that store, process, or dispose of
hazardous waste in surface impoundments, waste piles, land treatment units, or
landfills . . . .” 30 TEX. ADMIN. CODE § 305.401(a) (West 2015). The owner or
18 operator of an affected site must perform the duties set forth in the compliance
plan. Id. § 335.166(2) (West 2015). He also must establish and maintain financial
assurance for the corrective actions to be taken. Id. § 335.167(d) (West 2015).
The State sent a request for admission under Rule of Civil Procedure 198.1,
asking White Lion to admit that the compliance plan “requires White Lion to
provide at least $574,000 in financial assurance for the Facility.” White Lion
admitted this to be true. White Lion also admitted, in response to another request
for admission, that it “has never obtained financial assurance for the Facility.”
White Lion argues, however, that the permit required a lesser amount of financial
assurance than that required by the compliance plan, the permit is the controlling
document, and the different amounts therefore raise a fact issue. But the
Administrative Code requires White Lion to comply with both the permit and the
compliance plan. E.g., 30 TEX. ADMIN. CODE §§ 335.166–.167. While the permit
incorporates the compliance plan as part of its terms, the plan is enforceable in its
own right. Id. White Lion admits that the compliance plan required $574,000 in
financial assurance, a requirement that it had not met.
White Lion also argues that the State “misrepresented” to the trial court that
the amount of financial assurance required by the compliance plan was $574,000,
the same amount set in the first compliance plan in 1988, when the actual
requirement is lower. It reasons that the amount required by the Administrative
19 Code is “an amount no less than the current cost estimate” for closure, post
closure, or corrective action. 30 TEX. ADMIN. CODE § 37.121 (West 2015).
According to White Lion, the “current cost estimate” is lower than the original
$574,000 figure due to changes at the facility over the years. In support, it relies
on an EPA report from 2003 that purportedly concluded, as White Lion
summarizes it, that “there was no imminent endangerment to public health and the
environment.”
But the report in question does not support such a conclusion. Rather, it
indicated that contamination from the facility was “high unlikely” to impact “the
drinking and agricultural water supply,” but also concluded that “the plume may
not be stable” and that the risk of additional exposures “is dependent on actions
taken to mitigate the plume,” including maintenance of the monitoring and
recovery wells on-site. The undisputed evidence shows that each such well has
been closed, destroyed, or abandoned. It also shows that the State correctly
represented to the trial court the amount of financial assurance required by the
compliance plan now in effect: $574,000. Moreover, contrary to White Lion’s
arguments, the “current cost estimate” is not simply the owner or operator’s
estimate of the costs associated with a waste site. Rather, that term is defined by
statute as “[t]he most recent estimates prepared in accordance with commission
requirements for the purpose of demonstrating financial assurance for closure, post
20 closure, or corrective action.” 30 TEX. ADMIN. CODE § 37.11(6) (West 2015). The
only manner in which either the amount of financial assurance required or the
current cost estimate could be decreased is upon a request by White Lion, subject
to approval by TCEQ. Id. § 37.151 (West 2015). White Lion has never made such
a request.
The record thus conclusively shows that the compliance plan requires
financial assurance of $574,000 and that White Lion “has never obtained financial
assurance for the Facility.”
White Lion also argues that it raised an issue of material fact regarding the
calculation of civil penalties for its violation of the financial assurance
requirements of the compliance plan. Specifically, it argues that Vision Metals
provided financial assurance, that it assigned that financial assurance to White
Lion, and that the financial assurance remained in effect until January 11, 2005.
Thus, it contends that it raised a fact issue as to whether civil penalties could apply
for any date before January 12, 2005.
We disagree. The evidence shows that Zurich North America, through its
agent, Steadfast Insurance Company, issued an insurance policy to Vision Metals
to satisfy the latter’s financial assurance requirements. In April 2004, Vision
Metals asked Zurich to assign its rights and obligations under that policy to White
Lion. The record contains no evidence, however, that Zurich or Steadfast accepted
21 this assignment.6 Critically, it also contains no evidence that anyone provided
evidence of such an assignment or attempted assignment to the State. Rather, the
evidence shows only that White Lion informed the State in August 2004 that “[t]he
financial assurance provided by [Vision Metals] will remain in effect with Zurich
North America Insurance (Policy No. PLC3572779-04) until January 11, 2005.”
TCEQ responded on September 20, 2004, as follows:
We understand that financial assurance for this permit and compliance plan currently is in effect through an insurance policy issued by Zurich North America Insurance to the previous facility owner, Visions Metals, Inc. However, as we stated in our August 27, 2004 letter to you, White Lion, as the new owner and operator, is required to establish financial assurance with[in] six months of the ownership change. To date, this has not been done.
There is thus no evidence that White Lion actually established financial
assurance—whether in the form of the Zurich policy or otherwise—and provided it
to the State. Rather, White Lion expressly admitted that it never obtained any
financial assurance for the facility.
The evidence conclusively established that White Lion assumed
responsibility under the compliance plan when it became the transferee of that plan
on July 23, 2004. The evidence also conclusively established that White Lion
never submitted any required water samples or reports as required by the plan and
6 The policy provides that it “may not be assigned to a successor owner or operator of any ‘waste facility’ without the consent of [Steadfast] which shall not be unreasonably withheld, delayed or denied.” 22 failed to prevent the destruction, removal, or abandonment of the recovery and
monitoring wells or to repair or replace the wells after they were destroyed,
removed, or abandoned. Thus, White Lion was in continuous violation of the plan
from that date through the date of the summary-judgment hearing on July 29, 2013,
a period of 3,294 days. See discussion in Section E, infra. The evidence also
conclusively showed that White Lion’s deadline for establishing financial
assurance was October 6, 2004. It had not established financial assurance by the
summary-judgment hearing, 3,218 days later, resulting in additional violations of
the plan. Under the Water Code, the civil penalty for violations of the compliance
plan shall be not less than $50 nor more than $25,000 for each violation, and
“[e]ach day of a continuing violation is a separate violation.” TEX. WATER CODE
ANN. § 7.102. The State stipulated to the minimum penalty for these violations of
$50 each. The trial court thus awarded $50 per violation for a total of 6,512
violations, or $325,600. The evidence raised no question as to the dates for which
the penalties should be imposed, and the trial court therefore did not err in its
imposition of penalties. 7
7 On rehearing, White Lion argues that it has raised fact issues regarding whether the State (1) “failed to mitigate its damages by failing to timely file a claim against the [prior owner’s] insurance policy” and (2) is estopped from recovering due to its own dilatory conduct. White Lion did not make either of these arguments in its brief on appeal. Accordingly, it has waived them. TEX. R. APP. P. 33.1(a). Even to the extent that these arguments might have been implied in White Lion’s briefing, they have no merit. This is not a case for damages, but for civil penalties, 23 D. The trial court properly awarded the State unpaid hazardous waste facility fees
According to White Lion, it never received a bill from TCEQ for permit fees
for the years 2009 through 2013, nor did TCEQ make a demand for such fees until
the State filed its motion for summary judgment. White Lion also argues that the
permit expired in 2009. It concludes that these facts raise “fact questions as to
whether these hazardous waste permit fees are legally valid, and in particular any
fees accruing after the Permit expired in 2009.”
White Lion does not attempt to explain why its obligation to pay hazardous
waste facility permit fees, a statutory obligation imposed by Section 361.135 of the
Health and Safety Code, could be contingent on receipt of an invoice or bill of any
kind. See TEX. HEALTH & SAFETY CODE ANN. § 361.135 (West 2010). It did not
raise this argument in response to the motion for summary judgment, but asserted
it for the first time in its motion for new trial. Because White Lion did not timely
make this argument to the trial court in opposing the motion for summary
in part for White Lion’s own failure to obtain an insurance policy as required by statute. See 30 TEX. ADMIN. CODE § 335.167(d) (West 2015). White Lion does not and cannot demonstrate that the State had any obligation to “mitigate” its recovery of penalties for White Lion’s noncompliance. Further, the circumstances of this case do not “clearly demand” application of the doctrine of estoppel to the State “to prevent manifest injustice,” given White Lion’s decade-long failure to comply with its obligations despite notices of violation and the filing of this lawsuit. See Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 170 (Tex. 2013). 24 judgment, it has waived it. TEX. R. CIV. P. 166a(c); see also TEX. R. APP.
P. 33.1(a).
White Lion also made no argument related to the permit’s 2009 expiration in
response to the motion for summary judgment. Rather, it raises those arguments
for the first time on appeal. We therefore hold that it has waived any argument
based on the expiration of the permit.
E. The trial court did not abuse its discretion in issuing a permanent injunction
White Lion contends that the trial court abused its discretion in entering a
permanent injunction because it failed to consider all of the summary judgment
evidence. Although White Lion does not specify which evidence it alleges that the
trial court ignored, the essence of its argument is that it “never violated or
threatened to violate the Permit or Compliance Plan and, in fact . . . did everything
in its power to comply, despite other circumstances beyond [its] control that could
not be prevented by due diligence.” It also argues that the EPA and a contractor
hired by White Lion both determined that the contamination on the property is
decreasing; therefore, according to White Lion, the trial court should not have
granted an injunction.
Texas Water Code Section 7.032 gives TCEQ the right to enforce its rules
and permits by seeking an “injunction or other appropriate remedy.” TEX. WATER
CODE ANN. § 7.032(a) (West 2008). When a statute provides for injunctive relief,
25 “the statute’s express language supersedes the common law injunctive relief
elements such as imminent harm or irreparable injury and lack of an adequate
remedy at law.” West v. State, 212 S.W.3d 513, 519 (Tex. App.—Austin 2006, no
pet.); see also Rio Grande Oil Co. v. State, 539 S.W.2d 917, 921 (Tex. Civ. App.—
Houston [1st Dist.] 1976, writ ref’d n.r.e.) (State need only meet statutory
provisions of Securities Act and is not required to otherwise show probable injury);
Gulf Holding Corp. v. Brazoria Cnty., 497 S.W.2d 614, 619 (Tex. Civ. App.—
Houston [14th Dist.] 1973, writ ref’d n.r.e.) (State need not prove irreparable injury
to be entitled to injunction under Open Beach Act). Thus, “[w]hen it is determined
that a statute is being violated, it is the province and duty of the district court to
restrain it, and the doctrine of balancing of equities does not apply.” Gulf Holding
Corp., 497 S.W.2d at 619.
The record demonstrates conclusively that White Lion never fully complied
with the compliance plan. In addition to its failure to provide the required financial
assurance, the evidence demonstrates conclusively other violations. For example,
the compliance plan required White Lion to install and maintain a groundwater
monitoring and “corrective action” system with specific components, including
various types of wells; sample, recover, and treat groundwater; and file various
reports regarding White Lion’s compliance with the plan and the status of the site.
But the affidavit of TCEQ employee Elijah Gandee shows that, by July 2013, the
26 “corrective action recovery and monitoring wells had been removed from the
Property without authorization and/or had been improperly abandoned.” The
groundwater recovery and monitoring system had also been destroyed or removed,
the wells had been plugged and abandoned without required approvals, and one
well head had been cut off, leaving an open hole. White Lion failed to submit any
of the reports required by the plan. It never took any required samples or
maintained any required records. The evidence thus conclusively disproves that
White Lion raised any fact issue as to whether it violated the compliance plan.
The EPA report has no bearing on White Lion’s violations of the plan. The
“post-judgment inspection” report prepared by White Lion’s consultant was not
part of the summary-judgment record. Any argument based on that report is
waived. TEX. R. CIV. P. 166a(c).
We hold that the trial court did not err in entering a permanent injunction
requiring White Lion to comply with the compliance plan.
F. The summary judgment order was not overbroad
Finally, White Lion argues that the trial court erred by granting injunctive
relief affecting land not subject to the compliance plan. This argument is based on
a faulty premise.
The trial court’s summary judgment order was a modified form of the
proposed order submitted by the State. Both the proposed order and the order
27 entered by the trial court included a definition of the term “Property” as including a
total of approximately 172.19 acres. The trial court, however, struck all portions of
the proposed order that referenced the term “Property,” other than the definition.
The only injunctive relief that the trial court granted was to require White Lion to
“comply with each limitation, requirement, and condition of the Compliance Plan.”
Thus, nothing in the judgment, other than the unused definition of “Property,”
mentions or affects land not covered by the compliance plan.
Because White Lion has failed to demonstrate that any issue of material fact
precluded summary judgment, we hold that the trial court did not err in granting
summary judgment to the State.
Conclusion
We deny all pending motions and affirm the judgment of the trial court.
Harvey Brown Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.