Rhodia, Inc. v. Harris County

• Decision Date: 05 August 1971
• Docket Number: No. 15784,15784
• Citation: Rhodia, Inc. v. Harris County, 470 S.W.2d 415, 2 ERC 1905, 49 A.L.R.3d 1229 (Tex. Ct. App. 1971)
• Parties: , 49 A.L.R.3d 1229, 1 Envtl. L. Rep. 20,413 RHODIA, INC., Appellant, v. HARRIS COUNTY et al., Appellees. (1st Dist.)
• Court: Texas Civil Court of Appeals

Page 415

470 S.W.2d 415

2 ERC 1905, 49 A.L.R.3d 1229, 1

Envtl. L. Rep. 20,413

RHODIA, INC., Appellant, v. HARRIS COUNTY et al., Appellees.

No. 15784.

Court of Civil Appeals of Texas Houston (1st Dist.).

Aug. 5, 1971.

Baskin, Fakes & Stanton, Stanley D. Baskin, Pasadena, for appellant.

Joe Resweber, County Atty., Gus Drake, James R. Doxey, Asst. County Attys., Houston, Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Roger Tyler, Vince Taylor, Richard W. Chote, A. J. Gallerano, Asst. Attys. Gen., Austin, for appellees.

PEDEN, Justice.

Appeal from the granting of a temporary mandatory injunction against Rhodia, Inc., a chemical company which produces insecticides, weed killers and similar products containing arsenic.

Harris County brought this cause of action under the Texas Water Quality Act, Article 7621d--1, Vernon's Texas Civil Statutes, seeking temporary and permanent injunctions and civil penalties, charging that Rhodia was discharging wastes containing excessive arsenic into or adjacent to Vince Bayou, one of the public waters of Texas. The Texas Water Quality Board filed an intervention in which it also sought to have Rhodia enjoined from unauthorized discharges of wastes containing arsenic in violation of the Act.

The appellant does not complain of the trial court's having ordered, after a hearing, that Rhodia be temporarily enjoined from all activities at its plant which will produce arsenic laden water drainage into or adjacent to, the waters of Vince Bayou, a public body of water near the Rhodia plant. Rhodia's appeal is directed to the following mandatory provisions in the temporary injunction:

'Further, that the Defendant, Rhodia, Inc., is hereby ORDERED forthwith to:

'1. Repair in a good and workmanlike manner with tamped, arsenic free soil those breeches existing in the high ground separating Vince Bayou from the tidal flats adjacent to Defendant's property. Place such additional dikes as are necessary to prevent the the entry of water into such tidal flats at periods of high tide.

'2. Core that portion of property owned by Houston Lighting & Power Company to the North and East, immediately adjacent and contiguous to the land owned by the Defendant at intervals of 25 feet ot such a depth as is necessary to achieve arsenic free soil, filling the core holes with a solution of slaked lime. Remove all arsenically contaminated top soil and replace same with that by-product or waste product from cement manufacturing processes known as 'precipitator dust' to a depth of four inches. After which the arsenically contaminated soil removed from the Houston Lighting & Power Company property may be replaced on top of the aforesaid 'precipitator dust.'

'3. Core the perimeter of the Defendant's property on the South and West boundary at 50 intervals to a depth of one foot or until arsenic free soild is achieved.

'4. Core the East perimeter of Defendant's property from the Southern boundary line to the entrance leading to Defendant's plant site at intervals of 50 to a depth of one foot or until arsenic free soil is achieved.

'5. Core the remainder of the East boundary line and the North boundary line at intervals of 25 to a depth of 2 or until arsenic free soil is achieved.

'6. Core the portion of Defendant's property South of the Southern most building thereon at 50 intervals (not previously cored) to a depth of 1 or until arsenic free soil is achieved, being the South 150 of said property.

'7. Core, on a line not more than 4 from all concrete buildings, dikes and other operating areas on Defendant's property, at intervals of 25 to a depth of 2 or until arsenic free soil is achieved. On a line parallel to such line, not separated more than 25 from such line and further removed from said concrete buildings, dikes and other operating areas, core at intervals of 25 to a depth of 2 or until arsenic free soil is achieved.

'8. Remove the arsenically contaminated soil from the slag waste pile, located on the Northerly side of Defendant's property and the Southerly side of the adjoining property owned by Houston Lighting & Power Company, the evaporation pit area, located on Defendant's property, and the railroad spur line unloading area and place in a good and workmanlike manner on the previously prepared tidal flat areas described in #1 hereof.

'9. Fill all core holes with slaked lime solution.

'10. All core holes mentioned herein are to be 4 in diameter.

'11. Determine the source of the water surfacing in the artesian spring located ten feet North of the North end of the Defendant's railroad spur track.

'12. Cover replaced soil and all areas from which soil is removed with arsenic free compacted earth to a depth of natural ground level . The surface of these areas should be graded smooth in such a manner as to allow proper drainage and not cover any currently exposed transmission tower foundations or footings. These areas should be seeded thereafter with Bermuda grasses so as to avoid erosion.'

No findings of fact or conclusions of law were made in addition to those stated in the trial court's order.

At the hearing on the applications for temporary injunction, evidence was introduced that arsenic in excess of the concentration permitted by the 'Hazardous Metals Regulation' of the Texas Water Quality Board (one part per million) had been found in the tidal waters of Vince Bayou where natural drainage from the Rhodia plant would carry it and in the fluids being discharged from the Rhodia plant into the City of Pasadena sewer system. There was evidence that the arsenic found in the sewer system priginated in the operation of the plant and that it would also eventually reach Vince Bayou but that it would by then be less concentrated. There was also evidence that excessive concentrations of arsenic were found in Vince Bayou as a result of a recent purging of the plant's sprinkler system. However, it appeared from the evidence that one of the principle sources of arsenic in the bayou was that which had, it some time in the past, been deposited on the properties of both Rhodia and the adjacent property of Houston Lighting & Power Co. by operation of Rhodia's plant and was being washed into the bayou by rains and by high tides. Large concentrations of arsenic were found on and in the soil of Rhodia's plant and that of the property of Houston Lighting & Power Co.

Rhodia's corporate predecessor formerly had permission from the Texas Water Quality Board to dump certain of its wastes containing arsenic in a pit and a ditch on its own property, but it sought and obtained cancellation of its permits in 1969 because it had developed a recycling system for its wastes and no longer wished to dump them. It did not appear from the evidence that Rhodia is now knowingly depositing arsenic on the land or in the bayou.

In 1947 Rhodia's predecessor conveyed to Houston Lighting & Power Co. a 4.761 acre strip of land on the north and east sides of the Rhodia plant. Vince Bayou flows across the northeast part of both the Rhodia and the Houston Lighting & Power Co. tracts, and the evidence showed that after rains the natural drainage flow of surface water from parts of the Rhodia land was across the Houston Lighting & Power Co. tract into and adjacent to Vince Bayou.

Rhodia's single point of error is:

'The trial court abused its discretion in issuing a temporary mandatory injunction in that:

'A. It placed on appellant a burden greater than required for the protection of appellees.

'B. It granted all of the relief available to appellees on the trial on its merits.

'C. It granted equitable relief though appellees had an adequate remedy at law.

'D. It granted equitable relief which was in excess of that requested in the petitions and prayers.

'E. It required appellant to perform burdensome duties that were not described in appellee's petitions and prayers, violating the due process and equal protection clauses of the Texas and United States Constitution.'

In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953).

Although ordinarily a mandatory injunction will not be granted before final hearing, a trial court has the power to grant a mandatory injunction at a hearing for a temporary injunction where the circumstances justify it. Whether a temporary mandatory injunction will be granted is within the sound discretion of the trial court. The grant thereof will be denied, however, unless the right thereto is clear and compelling and a case of extreme...