cestranscript

8/14/2019 cestranscript

http://slidepdf.com/reader/full/cestranscript 1/91

1

*******************************************1

ADMINISTRATIVE HEARING2

NOVEMBER 4, 20093

IN RE: CES Environmental Services, Inc.4

*******************************************5

An Administrative Hearing was held on the 4th day6

of November, 2009, from 2:19 p.m. to 4:20 p.m., before

Julie M. Silhan, Certified Shorthand Reporter in and7

for the State of Texas, reported by stenographic means,

at the offices of City Hall Annex, 900 Bagby, Room 242,8

Houston, Texas.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



2

INDEX1

PAGE2

Appearances........................................33

WALID Z. SAMARNEH4

Examination by Mr. Camara....................545

Examination by Ms. Price.....................736

Examination by Mr. Morse.....................767

Further Examination by Ms. Price.............878

Closing Arguments by Mr. Camara...................889

Closing Arguments by Ms. Price....................8810

Reporter's Certificate............................9111

12

13

14

15

16

17

18

19

20

21

22

23

24

25



3

APPEARANCES1

2

HEARING OFFICER:3

Mr. Ebrahim Nassiri, P.E.

Assistant Director4

COH Public Works & Engineering611 Walker, 15th Floor5

Houston, Texas 77002

Telephone: 713/837-73786

Fax: 713/837-7084

7

COUNSEL FOR APPELLANT, CES ENVIRONMENTAL SERVICES, INC.:8

Mr. K.A.D. Camara

Mr. Kent Radford9

Mr. Tim Nyberg

Camara & Sibley10

2339 University Boulevard


Telephone: 713/893-7973

12

Mr. Robert E. (Robin) Morse, III

Crain, Caton & James13

1401 McKinney Street, 17th Floor


Telephone: 713/752-8611

Fax 713/658-192115

16

COUNSEL FOR CITY OF HOUSTON:

Ms. Ceil Price17

Mr. James P. Cargas

City of Houston, Legal Department18

900 Bagby, 3rd Floor


Telephone: 832/393-6255

Fax: 832/393-625920

21

ALSO PRESENT:

Mr. Walid Z. Samarneh - COH Public Works22Ms. Tracy B. Calabrese - COH Legal Department

Ms. Candice de la Garza - COH Legal Department23

Mr. Don Cheatham - COH Legal Department

Mr. Larry Schenk - COH Legal Department24

25



4

HEARING OFFICER: Thank y'all for coming.1

Good afternoon to y'all. My name is Ebrahim Nassiri and2

I've been appointed by the Director of the Department of3

Public Works and Engineering to oversee this hearing.4

And my position, I'm assistant director in the5

department. And this hearing is in response to6

Mr. Camara's request of November 2nd, 2009, on behalf of7

his client CSE. Right?8

MR. CAMARA: CES Environmental Services,9

Inc.10

HEARING OFFICER: To appeal the City's11

termination of the waste water service to your facility.12

I will receive any information that you might provide13

later on regarding the case. And this hearing is at 90014

Bagby, Second Floor, Conference Room 242. And today is15

November 4th, 2009, and it is 2:18 p.m.16

We are kind of behind, but hopefully we17

can proceed as we go along and faster that we can go18

back to our job. Anyway, first, I will ask the19

applicant or his rep to confirm the notice of this20

hearing that was received. Is that right?21

MR. CAMARA: Yes, we agreed to this22

hearing.23

HEARING OFFICER: And second, I will hear24

from the Department of Public Works and Engineering's25



5

witness regarding the reason for the termination of the1

waste water service, later on. And the applicant may2

ask questions of the City's rep and the applicant may3

make a statement and present evidence and City's rep4

will have opportunity to ask questions.5

This is an administrative hearing and6

will be conducted informally. This is not a legal court7

or such a setting and without strict rules of judicial8

procedure and evidence. I will hear all the relevant9

testimony as long as it appears to be reasonably10

connected with the case.11

I may exclude any evidence that I think12

is not anything to do with the case. I might stop that.13

And I will determine whether evidence is admissible and14

I may take official notice of any documentations in the15

applicant's industrial waste file.16

MR. CAMARA: May I ask a question about17

the scope of the hearing, sir?18

HEARING OFFICER: May you ask what?19

MR. CAMARA: A question about the scope20

of the hearing.21

HEARING OFFICER: Let me finish this one22

and I'm sure you're going to have opportunity to ask the23

questions.24

MR. CAMARA: Yes, sir.25



6

HEARING OFFICER: I think the base is to1

hear from both sides and the reason of the denying your2

discharge permit. That will be the basis for this3

hearing.4

MR. CAMARA: Yes, sir.5

HEARING OFFICER: Okay. And based on my6

involvement, I have no prior knowledge of this case. So7

I will listen and hopefully record the evidence,8

exhibits that is needed. And once we are finished with9

the hearing, I will provide the response to the records.10

MR. CAMARA: Thank you, sir.11

HEARING OFFICER: All right. Let's go12

ahead and we have a court reporter here. She's13

recording our testimony, our remarks. And I'm saying to14

you the applicant or your rep, please state your name15

and mailing address for the record.16

MR. CAMARA: My name is Kiwi Camara. I'm17

with the law firm of Camara & Sibley. We represent CES18

Environmental Services, Incorporated. CES can be19

reached through our law firm at 2339 University20

Boulevard, Houston, Texas, 77005.21

HEARING OFFICER: What's your22

relationship with the company?23

MR. CAMARA: I represent them. I'm a24

lawyer and I represent CES. And with me are Robin25



7

Morris of the law firm of Crain, Caton & James,1

Mr. Radford -- Kent Radford from my firm and Timothy2

Nyberg from my firm.3

HEARING OFFICER: Again, you received the4

notice of this hearing yesterday I believe.5

MR. CAMARA: Well, we agreed to this6

hearing by phone and it was scheduled by mutual7

agreement.8

HEARING OFFICER: All right. Do y'all9

have any witness for this hearing?10

MR. CAMARA: We don't. We intend to11

present procedural objections to this hearing. We12

believe that it's unconstitutional under 42 United13

States Code, Section 1983, which is why I wanted to ask14

you whether that defense would be within the scope of15

this hearing or not. But I can elaborate on that now or16

when we have the opportunity.17

HEARING OFFICER: I think when I get18

opportunity to hear that, if there's a relationship with19

the case, probably I will allow it.20

MR. CAMARA: Okay. Thank you.21

HEARING OFFICER: And any rep from the22

Public Works & Engineering?23

MS. PRICE: My name is Ceil Price. I'm24

Senior Assistant City Attorney for the City of Houston.25



8

I represent the City of Houston in this matter.1

Specifically, I represent the director of Public Works2

and Engineering.3

I would like with the permission of the4

hearing officer to make a brief opening statement, and5

then present the City's case, which will be primarily by6

documents. And I've brought a set of documents for the7

hearing officer and the court reporter as well for CES.8

And with your permission, I will -- and before I begin,9

I think it would be useful to introduce the other10

parties representing the City.11

This is James Cargas, also senior12

assistant City attorney, and Mr. Walid Samarneh who is a13

managing engineering in the Department of Public Works14

and Engineering and Wastewater Operations. Mr. Samarneh15

will be available if you have any questions.16

MR. CAMARA: Ms. Price, would you mind17

sharing the exhibits with us now?18

MS. PRICE: Absolutely. No problem19

whatsoever.20

MR. CAMARA: Thank you.21

MS. PRICE: What I'd first like to mark22

is the affidavit of Clyde Smith, and that will be No. 1.23

And what I would like to do is make my opening24

statement. I'm going to read into the evidence the25



9

affidavit, and then I can go through these documents so1

that you can kind of -- I hate to just dump the whole2

load of them on you, but none of them should be3

surprising to you.4

MR. CAMARA: We'd actually like to have5

them now, if you don't mind, and we'll just go through6

them while you're speaking.7

MS. PRICE: Okay.8

MR. CAMARA: Thank you very much, ma'am.9

HEARING OFFICER: That's entirely one set10

exhibit; is that right?11

MS. PRICE: No. This is a complete set,12

so we'll walk through them so that they each have an13

exhibit number. I think that will be most helpful.14

My opening statement is just to remind15

the parties present that the program under which CES16

operates is not a new program. Congressmen did the17

Federal Water Pollution Control Act in 1972, nearly 4018

years ago. It created the NPDS system, National19

Pollutant Discharge Elimination System, which prohibited20

discharges from point sources unless there's a permit.21

NPDS is codified at 33 USC 1342.22

Specifically, Section B of that section allows states to23

regulate the NPDS permit under certain very specific24

conditions.25



10

City of Houston operates 39 wastewater1

treatment plants and more than 400 lift stations2

pursuant to permits that are delegated to TCEQ from the3

EPA. There are some small elements of some of the4

permits on some of the locations that are still5

controlled by EPA, but the vast majority of the City's6

permits are issued by TCEQ.7

Industrial users of the publicly-owned8

treatment works are allowed to discharge their waste to9

the POTW through the provisions of 33 USC 1342(b)8,10

which says that the administrator of EPA shall approve11

that program -- that state program unless he determines12

that adequate authority does not exist to ensure that13

any permit for a discharge from a publicly-owned14

treatment works includes conditions to require the15

identification in terms of character and volume of16

pollutants of any significant source, introducing17

pollutants subject to pretreatment standards under18

Section 1317(b) of this title into such works, and a19

program to assure compliance with such pretreatment20

standards by each source.21

The statute goes on, but the relevant22

part is that Congress has noted that one of the most23

important parts of the program is identification of what24

the pollutants are that are coming from an industrial25



11

users. City of Houston's permits that we have from TCEQ1

and from EPA require us to have a pretreatment program.2

Article 5 of Chapter 47 is that program. And to that3

end, the documents that I have brought with me and would4

like to introduce support the implementation of that5

program sufficient to ensure that the City's own6

wastewater treatment plants are in turn in compliance7

with their own permits.8

Exhibit No. 1 is the affidavit of Clyde9

Smith. And with your indulgence, I'll read it into the10

record. It's fairly brief. I will not read into the11

record all of the other documents I've brought with me,12

but I will walk through them and identify them by, you13

know, sort of their general name.14

MR. CAMARA: We appreciate that.15

MS. PRICE: Yeah, we'll be here forever.16

And the hearing officer has already indicated --17

MR. CAMARA: That he needs to return to18

his job.19

MS. PRICE: -- that he needs to expedite20

this hearing.21

Mr. Smith has stated that as follows:22

No. 1, I, Clyde Smith, am over the age of 21 years of23

age, of sound mind and capable of making this affidavit.24

No. 2, I am employed by the City of25



12

Houston Department of Public Works and Engineering as an1

Environmental Investigator V and am personally2

acquainted with the facts stated herein.3

No. 3, CES Environmental Services, Inc.4

is a waste management and disposal facility which must5

operate by permit issued by the City of Houston. The6

City of Houston has been monitoring this facility for7

repeated environmental violations.8

No. 4, CES has two industrial waste9

permits for discharges of industrial waste to the City's10

sewer. Permit No. 9558 was issued for discharges from a11

centralized waste treatment operation. And Permit 680612

is for a tank wash or truck wash operation.13

No. 5, Permit No. 9558 was reissued in14

December of 2008. It expires in December of 2010. The15

permit was amended in September of 2009 to remove the16

requirement for daily in-house sampling and testing of17

phenol. January 2009, the permit was amended to include18

a Total Toxic Organic Endorsement, TTO, and removing19

Endorsement P with its phenol discharge limit.20

In December 2008, the permit was renewed21

and reissued. Previously the permit was amended in22

July 2007, May 2007 and January 2007 to conform to CES's23

evolving operations as part of our routine review and24

permit management.25



13

Permit No. 6806 was reissued January 20091

and expires January of 2011. Previously, that permit2

was amended in October 2007, July 2007 to conform to3

CES's evolving operation as part as our routine review4

and permit management.5

Paragraph 7, Between January of 2007,6

January 2009 several amendments were made to CES's7

permits adding or removing different permit endorsements8

or requirements.9

Paragraph 8, the facility has sample10

points for monitoring discharges from the facility.11

Sample Point No. 2 listed on Permit 9558 requires CES to12

notify the City of Houston that it has water to be13

sampled and requires CES to maintain a notification and14

discharge record on site using a discharge log.15

Paragraph 9, based on information that we16

received and personal conversations with Clint Hopkins,17

director of processing of CES, we believed that the18

City's wastewater system was at risk from Sample Point19

No. 1 discharge. As a result the City terminated CES's20

sewer access because of CES's refusal to seal Sample21

Point No. 1 which has no meter and no security.22

Paragraph 10, CES is also noncompliant23

with copper, zinc, TTO and categorical limits for its24

daily maximum limits of some other organics.25



14

Paragraph 11, on October 6th, 2009,1

compliance meeting was held at CES.2

Paragraph 12, on October 7th, 2009, I had3

a phone conversation with Clint Hopkins regarding4

wastewater that is taken from the tank wash facilities5

to the CWT facility.6

Paragraph 13, on October 13th, 2009, a7

follow-up letter was sent to CES requesting they seal8

Sample Point No. 1, which is the sample point listed on9

Industrial Waste Permit No. 6806.10

Paragraph 14, on October 15th, 2009, CES11

requested an extension to seal Sample Point No. 1 and to12

perform self-monitoring for TTO.13

Paragraph 15, on October 20th, 2009, City14

denied their request for an extension.15

Paragraph 16, of October 28th, 2009, a16

field verification report was issued stating that there17

were no plans to repipe at CES Walid Samarneh and I18

spoke to Clint Hopkins who informed us that he had not19

received any instructions to seal Sample Point No. 1.20

Paragraph 17, on October 7th, 2009, the21

City issued an administrative order requiring a22

corrective action report and four days of sampling for23

TTO compliance at Sample Point No. 5. This order was24

based on three violations of TTO on July 21st,25



15

July 23rd, and September 2nd, 2009.1

Paragraph 18, on October 23rd, 2009, CES2

informed the City that their sampling equipment was not3

functioning at Sample Point No. 5.4

Paragraph No. 19, on October 28th, Walid5

Samarneh and I visited CES and confirmed that no action6

had been taken to comply with the outstanding7

October 5th, 2009, and October 13th, 2009 orders. We8

did not find any piping in place and no plans could be9

produced showing plans were being made. Sample point10

No. 1 had not been sealed.11

Paragraph 20, on October 30th, 2009, CES12

informed the City that their sampling equipment at13

Sample Point No. 5 was still not functioning. CES also14

informed the City that it would not be functioning until15

November 9th, 2009, at the earliest.16

Paragraph 21, additionally, CES has17

outstanding notice of violations which were issued, and18

included violations for illegal discharges.19

This document is entered into the record20

and is notarized. I would like to walk through the21

other documents that I would like to have introduced.22

And we're going to have to mark them differently.23

MR. CAMARA: If I might interject, I read24

in the Rules of Procedure -- I understand that we're not25



16

following the strict rules of evidence in this1

proceeding, but I would like on the record that we2

reserve all our rights to object to all evidence entered3

here as in violation of the rules of evidence should4

this matter ever been litigated in court.5

MS. PRICE: Exhibit 1 is the Industrial6

Wastewater Permit No. 9558, or a reasonable copy.7

MS. CALABRESE: Excuse me. You offered8

one as the affidavit, so that would have to be No. 2.9

MS. PRICE: Thank you.10

MS. CALABRESE: We're just trying to help11

keep the record straight.12

HEARING OFFICER: This is 2 according to13

this list?14

MS. PRICE: This is two, because one was15

the affidavit. Exhibit 3 would be Industrial Wastewater16

Permit No. 6806.17

MR. CAMARA: May I ask who the gentlemen18

are?19

MS. PRICE: If you would identify20

yourself for the court reporter.21

MR. CHEATHAM: I'm Don Cheatham. I'm a22

senior assistant City attorney with the City of Houston.23

MR. SCHENK: I'm Larry Schenk. I'm a24

senior assistant City attorney for the City of Houston.25



17

(Discussion off the record.)1

MS. PRICE: We're back on the record.2

This is Exhibit 4. Exhibit 5 is a letter from Clyde3

Smith to Prabhaker Thangudu of CES granting an extension4

of time for compliance with organics testing required by5

the September 10th, 2009, NOV. We're going to be here a6

long time if I do the summaries, but that's okay. We'll7

move along.8

Exhibit 6 is a letter dated October 5th,9

which is an administrative order. This is over the10

signature of Clyde Smith.11

Exhibit 7 is investigation report by12

Charles Graham and David Richards.13

Exhibit 8, also dated October 7th, this14

is an NOV requesting action -- an action report, testing15

of BNA, and other things.16

Exhibit 9 is a revised notice of17

violation dated October 26th.18

Exhibit 10, dated October 13th, is an19

administrative order requiring a number of activities20

from CES.21

Exhibit 11 is a printed copy of an e-mail22

that appears to be from Prabhaker Thangudu to Charles23

Graham dated October 30th.24

Exhibit 12 is a letter dated25



18

October 26th. This is a first notice requesting certain1

composite samples of certain pollutants.2


October 26th, from the City to CES.4

Exhibit 14 is dated October 28th, 2009,5

field verification report.6

Exhibit 15 is a memo to the file dated7

October 30th from Michael Marcotte the director of8

public works.9


October 31st, which is the termination letter to CES.11

Exhibit 17 is a letter dated November 2nd12

from Mr. Camara to Clyde Smith.13

And the last exhibit from the City is14

Exhibit 18 and it's a letter from myself to Mr. Camara15

dated November 3rd. I have no further exhibits at this16

time.17

HEARING OFFICER: All right. Thank you18

very much. I think we received enough exhibits.19

MR. RADFORD: For our recordkeeping20

purposes, the exhibit list is all in order; you just add21

one to get the correct exhibit number?22

MS. PRICE: Basically.23

MR. CAMARA: Should we proceed?24

HEARING OFFICER: Yeah, I think we can25



19

provide now that the City has presented their case and1

exhibits. Now it's your chance.2

MR. CAMARA: I hope you don't mind if I3

roam a little bit. I kind of feel trapped here.4

HEARING OFFICER: If you could stay close5

by here so we can --6

MR. CAMARA: Sure. First, I wanted to7

apologize just for all the shuffling around of papers8

that we had going on. We got the evidence that the City9

is relying on only after walking into the room. I think10

you heard our discussion with Ms. Price. We've had no11

opportunity to review it except just now.12

I think there's been a little bit of a13

misleading picture created by the City about what the14

purpose is of this hearing. So the City can use its15

emergency powers under Ordinance 47-208(f) to shut down16

wastewater service to CES without notice or any kind of17

prior hearing.18

The City is only allowed to shut down19

wastewater service without notice or a hearing if the20

director, Mr. Marcotte, finds that there is an eminent21

danger of harm to either City employees or members of22

the public, or that there's a likelihood that the City's23

plant will be in violation of its state or federal24

permits.25



20

There is another way that the City can go1

about terminating wastewater service, and that's by2

giving ten days notice and then having a hearing where3

we have an opportunity to see the City's allegations,4

collect our evidence in an orderly fashion, and present5

it to a hearing officer like yourself. Meanwhile, the6

plant can continue to operate for those ten days and for7

however long it takes to have the hearing.8

So this is not an ordinary termination9

hearing where the City gets to say that we violated a10

permit or that we're discharging in excess of an11

amendment to a permit or anything like that. The only12

way the City can properly prevail at this hearing is if13

it shows that it can satisfy the emergency conditions14

under 47-208(f), which again, are eminent physical harm15

to a City employee or a member of the public, or that16

the City is being placed in jeopardy of violating its17

state or federal permits.18

And we would submit that none of the19

argument or evidence that the City has just presented20

comes anywhere near satisfying that emergency standard.21

What they've shown you is some evidence, half the22

picture, that we have violated some permit conditions.23

But even if you believe everything24

they've said, even if you believe that we violated25



21

various permit conditions -- we don't think we have, but1

even if you believe it, that is not enough to qualify2

for a shutdown without notice or prior hearing. It's3

not enough to qualify for an emergency shutdown.4

So we think and would submit that the5

City has violated not only municipal ordinances in6

trying to shut us down, but has denied us a7

constitutional right known as procedural due process.8

That right says that when the government,9

whether the federal government, state government or a10

municipal government, takes away a right, like our11

permit right, it's got to give us prior notice and a12

hearing so that we can offer evidence that we haven't,13

in fact, violated those permits. If the government acts14

without offering such prior notice or a hearing, then15

it's violated our right under the 14th Amendment of the16

United States Constitution.17

There is also a statute -- 42 United18

States Code, Section 1983 -- that makes it a violation19

of federal law for a state or municipal officer to20

deprive someone of their constitutional rights acting21

under color of state law, which we contend is exactly22

what has happened here.23

So that right -- I don't -- feel free to24

cut me off if I'm boring you with the legal arguments,25



22

but that right has been explicated in a long series of1

decisions by the United States Supreme Court and the2

Court of Appeals for the Fifth Circuit, which is the3

court of appeals that has jurisdiction over states,4

including Texas.5

Those cases -- Goldberg versus Kelly,6

Fuentes versus Shevin, the list goes on and on -- say7

that only in the starkest emergency circumstances can a8

state or a municipal government deprive a party, like9

CES, of a right without prior notice and a hearing.10

So how can they do it? They can do it if11

they give us notice and a hearing. And what kind of12

notice and hearing, that's a close question. That's for13

judges to the decide depending on the importance of the14

right, the size of the threat, and the quality of the15

evidence. So it may be that ten days notice and a16

hearing like this would suffice or it may not be.17

But what is perfectly clear under the18

cases in the Constitution is that no notice and no19

hearing at all do not satisfy those procedural due20

process standards. And if you ask yourself why, it21

makes perfect sense.22

CES is a waste management and treatment23

facility. We receive shipments from businesses all24

throughout the area, including some very famous25



23

businesses, major oil companies like Kinder Morgan,1

companies like Best Buy, companies like Anheuser Busch.2

We treat their waste and we're one of the quit limited3

set of plants with this capability in the Houston area.4

If we're shut down, those customers have5

to make arrangements to truck their waste elsewhere or6

shut down their own industrial processes. So this is7

not about the emergency no-notice shutdown of CES. This8

is about emergency shutdown of a vital service that's9

provided to companies operating in the Houston area.10

And again, if they gave us ten days11

notice, we could have told our customers, "Look, we need12

to reroute these shipments, or we need to delay them, or13

we need to take material that's already on site that we14

would treat and make arrangements to put it somewhere15

else."16

Instead, when the City comes on17

Halloween, on Saturday morning at a time when I believe18

actually the City knew that the two principals of CES19

were out of town -- one out of the country and one I20

believe on the east coast on a religious retreat -- they21

sent officials to come without notice, shut down the22

facility on a weekend, and gave us no time to make those23

kinds of alternative arrangements to contact our24

customers, to handle the possible shutdown in some kind25



24

of orderly fashion.1

And can they do that? Yes. But only2

under two limited conditions; the conditions set out in3

47-208(f) where there's a threat of eminent harm to a4

member of the public or City employee, or where there's5

a likelihood that the City will violation its own6

permits. And nothing that they have offered today7

suggests that any of that is true.8

Let me also explain another right the9

City has violated is the right to engage in10

cross-examination of witnesses. And cross-examination11

is where I get to see who it is they're relying on to12

prove their case and cross-examine them, and that is the13

foundation of the American system of getting things out14

through adversary hearings like this.15

So let's see who they relied on. Because16

Mr. Samarneh is here to answer questions and I17

appreciate your being here and I will ask you some18

questions. But Mr. Samarneh is not the person they're19

relying on.20

The first person they're relying on is21

Mr. Marcotte, who is the director of the Public Works22

and Engineering Department to the City of Houston. And23

as I was explaining to you, Section 47-208(f) is24

triggered only when Mr. Marcotte certifies that there's25



25

that risk of eminent harm. And I don't know what1

exhibit this is. Do you? The memorandum.2

MS. PRICE: It is 15.3

MR. CAMARA: So Exhibit 15 which they4

game you is a memorandum from Mr. Marcotte that purports5

to make that finding. But if you look at it, it doesn't6

say that Mr. Marcotte himself is engaged in the7

investigation. It says that he's relied on a briefing8

by Ms. Susan Bandy, deputy director of the resource9

management division, and Mr. Jun Chang, deputy director10

of the public utility division, neither of whom is here.11

So I cannot hear from them about what the12

evidence was that they took to Mr. Marcotte to get him13

to issue this certification. I can't ask them about14

where they got that evidence. I can't ask them about15

what questions Mr. Marcotte asked.16

In other words, I have no way of17

exploring at this hearing whether these findings were18

justified or whether, as I think is quite possibly the19

case, Mr. Marcotte was presented with a letter and20

signed. I have no way of doing that because of their21

denial of our right to cross-examination and our right22

to see the basis of the findings.23

Secondly, if you look at the letter, it24

doesn't say why Mr. Marcotte thinks that there's an25



26

immediate danger to the physical health of a City1

employee or of a member of the public, and he doesn't2

say why the City's permit parameters be violated.3

That is, it just takes the text of a4

statute, rewords it a little and regurgitates it in the5

letter. It's the kind of form denial that you get from6

your cell phone company when they're fighting with you7

about a bill or you get from a bank. But it gives you8

no idea what's actually going through Mr. Marcotte's9

mind, if anything is going through it, and it gives us10

no idea of what the basis is for those conclusions.11

For example, if Mr. Marcotte had said12

that CES had been caught releasing a certain chemical13

and that chemical might have caused harm to people, and14

that was the basis for his determine, if he had told us15

that we could have come here with an expert chemist to16

tell you either, no, we're not discharging that chemical17

or, no, when that chemical is discharged it doesn't have18

those effects, or whatever our response would be.19

But because Mr. Marcotte has fully failed20

to state the basis for his findings, we have no way of21

doing that. So we come here, we get the evidence today,22

we see the memo for the first time, we cannot question23

the people who are listed in it or Mr. Marcotte, who24

supposedly heard them. And even the memorandum itself,25



27

even if you belief it, does not explain the basis for1

making the necessary emergency findings under 47-208(f).2

Next, the affidavit --3

MS. PRICE: I would like to interject at4

this point that Mr. Marcotte is available -- or shall5

way say would have been available had we started on6

time, but he has a meeting that began at 3:00 o'clock7

with the mayor. But if you want to ask him questions,8

he will make himself available.9

MR. CAMARA: I would like to. I would10

like on the record actually to request to question today11

Ms. Susan Bandy, Mr. Jun Chang, Mr. Michael Marcotte,12

Mr. Clyde Smith, and anyone else on whom Susan Bandy,13

Jun Chang, Michael Marcotte have relied on in making14

this determination. I believe that's my client's15

constitutional right.16

MS. PRICE: Well, Mr. Camara, I know that17

you're making an extremely persuasive argument on the18

constitutional basis --19

MR. CAMARA: Thank you.20

MS. PRICE: -- of the rights that you21

believe that are owed to your client. But the scope of22

this hearing, as I think our hearing officer stated, is23

the termination of service.24

MR. CAMARA: Yes. And I'm arguing --25



28

MS. PRICE: And your constitutional1

claims are more properly brought either in federal court2

or in state court. This is an informal administrative3

hearing.4

MR. CAMARA: I'll be happy to do that if5

you prefer. Would that be the appropriate procedure?6

HEARING OFFICER: I believe so.7

MR. CAMARA: Thank you. That actually is8

the record I was trying to make, so thank you. I'll now9

address the merit. So you understand that we have these10

constitutional objections and we're not able to raise11

them here, so I just wanted to make you aware of them,12

but I'll talk about the merits, too.13

And the merits are where it's important14

that I be able to cross-exam these people. It's hard15

for me to answer allegations in a letter that doesn't16

explain what it is I'm trying to answer where I can't17

question the people I need to question.18

Now, second, if you look at the affidavit19

of Clyde Smith --20

HEARING OFFICER: I've been informed that21

if you have requested any witnesses to be here prior to22

this meeting?23

MR. CAMARA: I haven't, no. And I'll24

tell you why I haven't, actually. I haven't requested25



29

these witnesses to be here because the City of Houston1

has not given us these documents until we got here.2

They've sent some of the notices of violation earlier,3

but this memorandum, Exhibit 15 by Mr. Michael Marcotte,4

we haven't seen this until we got here.5

So again, we don't know what the basis6

for this is and we didn't know until we read it that7

Ms. Susan Bandy and Mr. Jun Chang were the people who8

had briefed Mr. Marcotte. And I think you know how the9

bureaucracy works here. It's unlikely that Mr. Marcotte10

himself did the investigation. It was probably these11

people who briefed him.12

And I had no way of asking to see those13

people because I didn't get this in time, which again14

explains the kind of Kafkaesque quality of this hearing15

where a company is summoned in to answer allegations16

that have not been shown to it on three days notice17

after its entire business has been shut down on18

Halloween weekend. This is the problem with this19

hearing.20

HEARING OFFICER: Because of Halloween21

weekend?22

MR. CAMARA: Because of Halloween weekend23

and he Kafkaesque nature of the hearing. And again, you24

know, they can do this with ten days notice. So you25



30

could rule, for example, that they just need to give us1

ten days notice -- turn it on, give us ten days notice2

and have a real hearing where I know the evidence, I can3

question them, so on and so forth.4

Let's go on and explore the evidence.5

MS. PRICE: Well, you haven't presented6

any evidence yet. So far you've made --7

MR. CAMARA: I'm about to explore it.8

MS. PRICE: -- some statements and --9

MR. CAMARA: Well, it's informal. I10

don't have to follow the rules of evidence.11

MS. PRICE: That's correct. So as you've12

stated that you did not get prior notice, in fact you --13

your client did get prior notice.14

MR. CAMARA: Did we get notice of15

Mr. Marcotte's findings?16

MS. PRICE: You got notice of the17

termination.18

MR. CAMARA: Yes, but we did not receive19

Exhibit 15, did we?20

MR. CARGAS: And where is that required21

by statute ordinance?22

MR. CAMARA: I'm just asking, was it sent23

to us?24

MS. PRICE: No.25



31

MR. CAMARA: It wasn't sent to us. And1

were we ever told that Ms. Susan Bandy or Mr. Jun Chang2

were the people on whom Mr. Marcotte had relied?3

MS. PRICE: No.4

MR. CAMARA: That's all I'm saying. I'm5

not saying --6

MR. CARGAS: You were told that the7

director had made a determination.8

MR. CAMARA: Right, but I hadn't been9

told --10

MR. CARGAS: Go on the City's website and11

you can find the name of the director.12

MS. PRICE: Right.13

MR. CAMARA: Yes. Well, let me make14

clear what happened. The Ordinance 47-208(f) says the15

director must make this determination. So I can tell16

that by reading the ordinance. But did they give us17

this? No. You just heard their answer. They did not18

give us this.19

Did they tell us the director had relied20

on Ms. Susan Bandy or Mr. Jun Chang? No. They just21

told you that they did not tell us that. They told us22

that here in this room, and even this document does not23

explain the basis for the findings.24

They're going to try to tell you they've25



32

given us notice, but they haven't. They have not.1

They've sent notices of violation. They sent people2

down on Halloween weekend to terminate our service, but3

they did not ever send us this determination. If their4

position is simply that we must know the determination5

has been made because of the ordinance, yes.6

So I can explore the evidence or I can7

answer more questions, either way.8

MS. PRICE: Well, you haven't entered any9

evidence. I mean, so far the City has offered evidence.10

MR. CAMARA: I haven't.11

MS. PRICE: And I guess my question is,12

are you planning to introduce evidence or are you going13

to challenge the City's evidence?14

MR. CAMARA: Well, I'm not going to15

introduce evidence, because we're not following the16

rules of evidence.17

MS. PRICE: But I'm asking --18

MR. CAMARA: I'm going to describe19

evidence. I believe I've described some evidence and20

I'm going to challenge the City's evidence. But let me21

answer you straight up. The real answer is, I don't22

think the City's evidence satisfies 47-208(f), so I'm23

challenging the City's evidence. I'm going to say you24

guys haven't met your burden for an emergency shutdown.25



33

MS. PRICE: And I think that's --1

MR. CARGAS: Before we go, why don't you2

refute what the evidence he's misconstrued, then.3

MS. PRICE: Right. Because the letter --4

MR. CARGAS: And then you can misconstrue5

some more.6

MR. CAMARA: Sir, would it be more7

convenient if I completed my presentation and they8

respond? Or if we fight back and forth like this?9

HEARING OFFICER: Let me hear what10

they're talking about here in reference to this Exhibit11

15.12

MS. PRICE: Well, we really need to look13

at Exhibit 16.14

MR. CAMARA: What exhibit is that?15

MS. PRICE: That is the letter dated16

October 31 --17

MR. CARGAS: It's the termination notice.18

MS. PRICE: -- to Mr. Bowman. It's the19

termination notice. And the language -- and what I did20

not read into the record, and this might be an excellent21

time to do so. And I don't want to enter it as an22

exhibit, because it's the law, which is the language of23

47-208, Subsection F.24

And that language is, "If the director25



34

determines that a discharge from an industrial user1

causes, one, an immediate danger to the health of City2

employees or the public or, two, a likelihood that the3

City's treatment plant permit parameters, including4

sludge, will be violated, then the department may after5

prior notice immediately terminate water, wastewater6

service, and provide a hearing as described herein7

within three days of initial termination."8

The letter dated October 31st, which has9

been previously marked as Exhibit 16, indicates that it10

was received at 11:00 o'clock on the 31st of11

October 2009 --12

MR. CARGAS: By Steve Strickler.13

MS. PRICE: -- by Steve Strickler.14

MR. CAMARA: Yes. It was handed to15

Mr. Strickler on Halloween at 11:00 on Saturday.16

MS. PRICE: Well, I think -- well, that's17

absolutely correct.18

MR. CAMARA: I'm sorry. I don't mean to19

interrupt.20

MR. CARGAS: So just in terms of did your21

client get prior notice, yes, they did. This is prior22

notice. Did they get the determination from the23

director? Yes, they did get the determination from the24

director. It's in the notice letter.25



35

MS. PRICE: The second paragraph of the1

letter, which is in evidence, is that it states that the2

director has made a determination that discharge from3

your facility causes immediate danger to the health of4

City employees or the public, or a likelihood that the5

City's treatment plant permit parameters will be6

violated. You are hereby notified that your wastewater7

service will be discontinued on the above-referenced8

date for failure to comply with the City's wastewater9

pretreatment program.10

And that date, again, is on the 31st,11

although it is my understanding that service was not12

terminated until the following day, Sunday.13

MR. CAMARA: It started that day and then14

finished the next day.15

MS. PRICE: Yeah, the 1st of November.16

MR. CAMARA: Had to dig up the road17

apparently. So if we can look at Exhibit 16 -- do you18

have it in front of you?19

HEARING OFFICER: Yes, I do.20

MR. CAMARA: If you look at paragraph21

two, that's what they've been talking about. It's22

sentence two, starts over on the right-hand side. It23

says, "Further, the Director of Public Works has made a24

determination that discharge from your facility causes25



36

an immediate danger to the health of City employees or1

the public or a likelihood that the City's treatment2

plant permit parameters have been violated."3

So, yeah, that's a copy and paste from4

the statute. That's what the statute says he has to5

make a determination about. What they didn't give us is6

what it is he thinks is dangerous or what it is he7

thinks violates the parameter. They didn't give us the8

basis for that finding.9

So what they're asking us to do is come10

in here blind and argue against something where we have11

no idea what it says. I'm not disputing that we12

received this letter. What I'm disputing is whether13

this letter is sufficient. And then, when they say that14

they gave us --15

MR. RADFORD: Let me interject also. If16

you take a close look at the letter, it says that17

they've made a determination of one thing or they made a18

determination of another thing or they made a19

determination of the third thing. Even on the face of20

the letter, you can't tell what the City's determination21

is. It simply is a cut and paste. There's no -- and I22

would argue that there's not a single bit of notice23

there. We don't know why to this day the City shut us24

down under the emergency power of 47-208(f).25



37

MR. CAMARA: By the way, for the1

record -- go ahead.2

HEARING OFFICER: I was going to say that3

based on this letter, it is evident that enough notices4

were submitted in the past in violation of discharge5

parameters.6

MR. CAMARA: No, Your Honor. And this is7

why we would think not. So it's true they sent us lots8

of notices of violation, and we're working with them to9

fix those. For example, one of them required testing10

this Monday, Tuesday, Wednesday, and Thursday. But11

that's not a proper basis for shutting us down.12

If they want to shut us down for those13

notices of violation, they have to give us ten days14

notice and a chance to respond. They're not acting15

under that section. That section is 47-208(a), I think.16

They're acting under the emergency power of 208(f),17

which requires eminent harm to someone.18

And they could have told us. They could19

have said, you know, Chemical X is causing harm and we20

would have solved the problem. Or if we couldn't solve21

the problem, we would have voluntarily shut down and we22

would have given notice to our customers, we would have23

made arrangements for the waste on site.24

So they're not shutting us down because25



38

of a violation. That's what they tried to confuse you1

about when they talked about all these violations.2

That's not the scope of this hearing. The scope of this3

hearing is whether the emergency power was satisfied.4

I'd also like to make another5

objection --6

MR. CARGAS: Sir, if I could ask a few7

questions.8

HEARING OFFICER: Please.9

MR. CARGAS: Is your client sampling10

equipment working for Sample Point No. 5.11

MR. CAMARA: Yes. Actually, it just got12

started I think five minutes ago fixed.13

MR. CARGAS: Was it working last week14

when this was shut down?15

MR. CAMARA: No. It was down.16

MR. CARGAS: And for how long had it been17

down?18

MR. CAMARA: I believe two weeks, but I19

could be wrong.20

MR. CARGAS: And that sampling equipment21

was down for at least two week, I suspect it was down22

longer. What basis do you have to know what it is23

you're discharging into the City's system?24

MR. CAMARA: We know what we're25



39

processing. We know the results of those processes.1

We've been engaged in the same processes for many, many2

months. There's been no change in what we're doing.3

There are lots of sampling records for those processes4

from all the times during which the sampling point was5

operational.6

MR. CARGAS: So the same --7

MR. CAMARA: The sampling point was8

defective. We got notice of the defect from them and9

we've corrected that problem. It's operational as of10

today. And I told them that off the record. They're11

trying to bring this little thing in right now, but I12

told them it's working.13

MR. CARGAS: So the same sampling process14

that produced these other notice of violations is the15

same process that's continuing. You are unable for most16

of October to do any sampling and to tell us what it is17

you're putting into our system.18

Your client has informed us not of what19

they're putting into our system when we asked them to20

test it. Your client did not get independent laboratory21

analysis. Your client did not get a new sampling piece22

in place. They just said we can't -- our sampler is not23

working and, oh, maybe by November 9 at the earliest we24

might be able to get it fixed. Is that correct?25



40

MR. CAMARA: I'm sorry. I forgot your1

name.2

MR. CARGAS: Jim Cargas.3

MR. CAMARA: So Mr. Cargas is saying that4

we didn't do any laboratory testing and we didn't get5

the sampler fixed. Well, we got the sampler fixed6

today, we've been over that.7

And you know when we were supposed to do8

the laboratory testing. We were supposed to do it9

Monday, Tuesday, Wednesday, Thursday of this week. So10

why didn't we do the laboratory testing that we had11

agreed to, these notices of violation? Because they12

shut us down. So there's no surprise that we haven't13

done that laboratory testing --14

MR. CARGAS: There wasn't other15

laboratory testing to --16

MR. CAMARA: -- and this, again, is an17

example of how they're trying to twist this hearing. It18

isn't about the notices of violation. It's not what19

this is about. They could have acted to terminate our20

permit because we have these notices of violation. They21

could have done that.22

They could have done it under 47-208(a)23

with ten days notice so I can gather my evidence,24

present witnesses, see what they're talking about, have25



41

this happen in an orderly fashion, tell my customers1

arrange for storage. But they didn't do that.2

They acted under 47-208(f). So the3

question is not whether we violated these notices,4

whether they have some dispute about the sampling point.5

The question is can they prove that there is eminent6

harm to a person or to a City employee or whether7

there's a likelihood that the plant parameters would be8

violated.9

I'd like to move on to the affidavits,10

actually, because I think we're circling around here.11

Would that be okay?12

HEARING OFFICER: Any objection?13

MR. CAMARA: Moving on.14

MS. PRICE: Yeah.15

MR. CAMARA: I would like to make one,16

actually, other objection. I understand that the17

procedures for this meeting have you, sir -- we very18

much respect your time and I don't want this to be any19

attack on you, but you are being advised today about20

procedures by City attorneys and you've noticed21

throughout this hearing those City attorneys have been22

consulting with those City attorneys.23

So this is not a hearing where,24

respectfully, there is a judge who is not associated25



42

with them. This is a hearing in front of a City1

employee who's being advised by the very lawyers that2

I'm arguing against. So I'd just like that recorded.3

Now, the affidavit of Clyde Smith. So4

this is their principle piece of evidence. They read it5

into the record. They made a big deal out of it and6

they walked through it.7

Nowhere in the affidavit of Clyde Smith8

does it say that toxins are being released which are9

going to harm a member of the public or which are going10

to harm a City employee or which are going to place the11

plant in violation of its state or federal permits.12

Doesn't say it. The one witness whose affidavit they've13

given you cannot say the things they're trying to prove14

under 47-208(f).15

And if you look at this -- if you look at16

paragraph nine, that's on page two here, says, "Based on17

information that we received in conversations with Clint18

Hopkins, a director of processing of CES, we believe19

that the City's wastewater system was at risk from20

Sample Point No. 1 discharge."21

Now, that's the closest they come. It22

doesn't say it's going to be in violation at permits.23

It says it's at risk. No one knows really what that24

means. But notice, it's says, "Based on information25



43

that we received and conversations with Clint Hopkins."1

So Clyde is not here. I can't ask him2

what that information was. I can't find out what it is.3

They don't tell us here. They just say based on4

information received. So again, this is another example5

they tell you the conclusion, but they don't tell you6

how they got there, so there's no way to refute the7

evidence in front of them.8

Well, I'm going to wind up my9

presentation, because I think it's just more of the10

same. We could go through all those documents, and I11

will if you'd like me to, but the documents show12

permits, permit conditions, notices of violation, and13

then negotiation between the City and Prabhaker14

Thangudu, who's a CES employee who's in charge of15

dealing with the wastewater division.16

And they show some progress in those17

negotiations. For example, they show that Monday,18

Tuesday, Wednesday, Thursday this week we were supposed19

to do the laboratory testing. One of them sets out a20

three-month compliance program. Some of them state21

arguments by us, like, we don't think this modification22

is valid or we don't think this requirement is really23

necessary.24

There's that kind of ordinary back and25



44

forth that you'd have between a regulated entity like us1

and regulators like them, and some notices of2

violations. Not denying that. All I'm saying is that3

those notices of violations, those are outside the scope4

of this hearing.5

This hearing is about 47-208(f), whether6

there's eminent harm to a person or City employee or a7

likelihood that the City's plant is going to be put in8

violation of state of federal law. And they simply9

haven't shown that.10

I would like to depose Mr. Samarneh on11

the record. And again, I repeat my request to depose12

all these other people. I don't know if any of them13

will be available. I can pause now and get comments or14

I can question Mr. Samarneh, whichever you would prefer.15

HEARING OFFICER: Do y'all have anything16

to counter?17

MR. CAMARA: The other thing I'd point18

out, there are no rules of evidence here, so I can19

introduce what I couldn't ordinarily introduce.20

We had settlement negotiations with these21

guys this morning before we came here, and they said22

that if we agreed to shut down Sample Point 1 -- let me23

take a step pack.24

Our facility has two sample points,25



45

Sample Point 1 and Sample Point 5. Sample Point 5 is1

the waste treatment facility. That's where stuff comes2

in from Anheuser, we process it. And then, once it's3

clean, we take the solids, put them in a landfill; take4

the oils, reclaim them; take the waters and send them to5

the sewer.6

Then there's a separate facility which is7

a tank wash. So the tankers that come in carrying the8

stuff, after they're used, whether they're ours or other9

people's, we clean them in the tank wash and discharge10

that water into the sewer. So that's -- tank wash is11

one, main facility is five.12

What they're really after is No. 1. And13

so this morning, we had settlement negotiations with14

Ms. Price. And she said that if we were willing to15

agree to shut down No. 1, the tank wash thing, then they16

could agree to go forward on No. 5 if we repaired the17

sampling point. So that wasn't very clear.18

We had settlement negotiations and she19

said if we agreed to shut down No. 1, don't contest it,20

and then on No. 5, fix the sampling point, then the City21

would restore service to No. 5.22

Now, ask yourself, if they're really23

claiming that there's eminent harm to people's health24

and welfare or that the City's plant is likely to be25



46

shut down, would they have engaged in those settlement1

negotiations? Simply not.2

They would have shut us down. They would3

have attempted to prove their case. The very fact that4

they're willing to negotiate over this stuff indicates5

that it is not qualified under the emergency shutdown6

condition.7

MS. PRICE: I would like to point out8

that in fact CES is shut down based on a determination9

by the director that --10

HEARING OFFICER: At this time.11

MS. PRICE: At this time they are shut12

down.13

MR. CAMARA: Yeah. They cut us off on14

Saturday.15

MS. PRICE: They're physically -- City16

representatives went out Sunday morning and physically17

disconnected the pipe between Sample Point No. 1 and18

the --19

MR. CAMARA: Sewer.20

MS. PRICE: -- the sewer -- the21

connection to the main line of the sewer on Wayland.22

MR. CAMARA: Turned off the power to the23

lift system on part five.24

MS. PRICE: Correct. So they are25



47

physically shut down.1

MR. CAMARA: And they were willing to2

negotiate starting up.3

MS. PRICE: And as Mr. Camara points out,4

there have been settlement negotiations between CES and5

the City that were instigated by CES. And it has been6

the position of the City that -- and continues to be the7

position of the City that we have a permit process in8

place and industrial users are allowed to use our system9

so long as they comply with federal, state and local10

regulations.11

And I will submit to you again,12

Mr. Hearing Officer, that the primary intent of Congress13

in setting up the system was requiring industrial users14

to notify and give information to the control authority,15

the publicly-owned treatment works, and it is relevant16

what contaminants they are sending to us.17

But the fact that an industrial user does18

not know and cannot know, because it does not have any19

sampling equipment that's working, would certainly be20

one of the factors that a director would consider in21

making a determination whether there is a likelihood22

that a treatment plant's parameters would be violated.23

So it is the -- I do not want you to be24

left with the impression that the City is interested in25



48

any -- we're interested in a variety of elements of1

CES's operations. There are a variety of elements of2

discharge parameters that apparently are somewhat3

routinely being violated. And I don't know the reason4

for that, but may be operational equipment, it may be --5

we know that we've got at least one piece of equipment6

that's broken.7

But I think that for Mr. Camara to say8

that we've got a piece of equipment that five minutes9

after the hearing began is now working is sufficient to10

overcome the director's determination, which is made in11

part on his exercise of engineering judgment, that will12

be one of the elements that you need to consider in13

determining whether the City has met its burden as set14

forth in the ordinance, which is part of the overarching15

permit system established by Congress.16

MR. NYBERG: The issue is the City has17

presented no evidence that there was any change in18

operations at CES during the two or three-week period of19

a broken sample machine, if that's in fact what actually20

happened. So that's being alleged that there was this21

broken sample point or non-working sample point.22

This entire industry is regulated based23

on, you know, the predictive ability of sampling and24

statistics. Unless there's evidence that there's -- and25



49

I believe CES would be willing to state that there was,1

in fact, no change in operation during that period.2

Unless the City has evidence, then their claim appears3

to be that a broken sampling point is sufficient basis4

to invoke the emergency power, and I would submit that's5

absurd.6

MS. PRICE: I think we can respond to7

that.8

MR. CARGAS: So you're saying your client9

is -- his operations going through I believe Sample10

Point 1 is the truck wash, correct?11

MR. CAMARA: One is the tank wash, yes.12

MR. CARGAS: Okay. And that that tank13

wash now is shut down because of what the Department of14

Public Works --15

MR. CAMARA: We shut it down on Friday in16

response to your request that we shut it down, because17

we're going to contest the modification for permit that18

requires us to do TTO testing there. So I'll give you a19

little more background.20

MR. CARGAS: Let me follow this through.21

MR. CAMARA: Sure.22

MR. CARGAS: So because of the action23

taken, disconnection of the pipe on Sunday, November 1,24

that's the reason that you're truck wash is shut down --25



50

tank wash?1

MR. CAMARA: No. The reason our truck2

wash -- tank wash is shut down is because the City tried3

to impose an illegal modification to our contract --4

sorry -- to our permit. We then engaged in back and5

forth between Prabhaker Thangudu and Clyde Smith at the6

City over that modification.7

And then, in an attempt to work in good8

faith with regulators like yourself, we tagged out that9

building until such time as we could negotiate or10

litigate, if necessary, whether or not that modification11

was appropriate.12

We shut it down on Friday because you13

folks sent us a threatening letter earlier that week14

saying that if we didn't shut it down on Friday you15

would come down and shut off No. 1, which is the tank16

wash, which is a limited part of our business. That had17

nothing to do, of course, with No. 5, which is the18

sampling point of the waste treatment happens.19

MR. CARGAS: Let's focus on No. 1. So if20

the City reconnects --21

MR. CAMARA: No. 5.22

MR. CARGAS: -- Sample Point No. 1, then23

your tank wash would be up and running and that all24

would be good?25



51

MR. CAMARA: Well, we still have this1

fight about whether your permit modification is good or2

not. So I think at this point, because you guys have3

shown this tendency to come down and shut down various4

other things, what we would do is sue you for5

declaratory judgment so we could get a neutral judge to6

decide whether you're right about the modification --7

MR. CARGAS: Which is what the parameters8

are.9

MR. CAMARA: -- or whether we're right10

about the modification. We wouldn't want the City to11

just act unilaterally on Halloween.12

MR. CARGAS: I would like to enter into13

evidence -- and I guess this would be Exhibit No. 19.14

This is a letter dated October 27th from the Houston15

fire marshal shutting down your tank wash because it16

done not comply with electrical requirements which17

should have been in place July 17. The fire marshal18

granted several extensions, and by October, decided not19

to grant anymore extensions.20

And I will note also that at this tank21

wash building on July 7, a CES employees was killed in22

one of the most awful ways through an explosion and a23

fire where he was thrown into the ground from a catwalk24

and was burned about over 80 percent of his body.25



52

So electrical issues in this building are1

a very serious issue. CES has refused to make the2

repairs with a licensed electrician, as required by the3

fire marshal. And because of that, that's why the tank4

wash is shut down right now, because of the fire5

marshal, not because of what Public Works has done.6

And I would offer you that perhaps their7

prize of not being able to do business with the tank8

wash because of what Public Works did are misleading,9

sir.10

MR. CAMARA: Sir, CES has shut down the11

tank wash pursuant to that order as well as a12

disagreement with them on Friday before they ever came13

on Saturday. There was an unfortunate death at that14

facility. It's in litigation right now. We think we15

had nothing to do with that death. We think it was an16

unfortunate accident. And, you know, we're working with17

regulators to solve it.18

The family of that decedent has sued us19

and that's in the courts the way those things normally20

are. We regret it, but it is not -- again, I repeat, it21

is not the basis for the shutdown which is at issue here22

today. The shutdown that's at issue here today is23

whether 47-208(f) has been satisfied.24

And all this talk about the fire marshal,25



53

about the prior notices of violation, that I would1

respectfully submit is an attempt to distract you from2

the narrow issue which is at issue today. They can shut3

us down for those other things. They can at least try4

to, but they have to do it with notice and a hearing --5

ten days notice and a hearing here where we have an6

opportunity to marshal evidence. That's the narrow7

point that I'm making.8

MR. MORSE: Mr. Camara, I hate to see9

apples and oranges mixed myself, in the sense that the10

death Mr. Cargas has referred to on July 7, as I11

understand the facts, had nothing to do with electrical12

situations in buildings. The gentleman was cleaning out13

a tanker truck himself, violated company safety rules,14

and basically set off that explosion through some type15

of spark related to his own activity.16

It had nothing to do with the electrical17

condition of the building, much less anything to do with18

the wastewater treatment system. So we really are going19

far afield and mixing apples and oranges about what20

happened on July 7. I just wanted to state that for the21

record.22

MR. CAMARA: We're going there, because23

there's no been evidence. Anyway, I think I am -- well,24

I do want to depose these people, but I'm not sure if25



54

we're boring you. I just don't want to keep you longer1

if you don't find it helpful.2

HEARING OFFICER: Go ahead and make your3

point.4

MR. CAMARA: I've made my argument. I5

just want to get some information for the litigation6

from Mr. Samarneh.7

(Short break.)8

MR. CAMARA: I'd just like to have it on9

the record I intend to use this testimony in court, so I10

don't want to impede your ability to cross-examine him.11

So please feel free to do so. And off we go.12

WALID Z. SAMARNEH,13

having been first duly sworn, testified as follows:14

EXAMINATION15

BY MR. CAMARA:16

Q. Have there been any violations recently of the17

City's plant permit?18

A. Yes, there has.19

Q. And what violations were there?20

A. The ammonia violation.21

Q. And when was that violation?22

A. The last one we had is the total for23

September. September '09.24

Q. September '09. Were there any violations in25



55

October?1

A. I haven't seen any.2

Q. Would you be aware of any such violations if3

they existed?4

A. Yes. Would brought to my attention once we5

get both analysis and results back.6

Q. So it's safe to say that if you're not aware7

of any violations in October, there weren't any8

violations in October?9

A. I cannot say that, because I haven't seen the10

final monthly report.11

Q. When do you get the final monthly report?12

A. About within a few days.13

Q. So no one could know if there are any14

violations in October, because the report hasn't been15

generated?16

A. Well, what we see before we see a violation,17

what we see, we see daily reports on ammonia violations18

or ammonia peaks.19

Q. And none of those ammonia peaks in October has20

been a violation?21

A. There have been ammonia peaks in October,22

which could be potentially a violation -- result in a23

monthly average violation.24

Q. I see. So the permits says you have to have a25



56

monthly average for ammonia?1

A. The permit has daily maximum and has a monthly2

average.3

Q. Have you exceeded the daily maximum in October4

for ammonia?5

A. I cannot answer that.6

Q. But you don't remember if you've ever done7

that?8

A. Correct.9

Q. And you would know, right? Because you guys10

take violations seriously.11

A. Absolutely.12

Q. So the last violation was in September. Have13

you seen any daily violations in November?14

A. No. We just started November.15

Q. And we're talking about the Sims Bayou south16

plant?17

A. We're talking about the Sims Bayou facilities.18

Q. Both south and north?19

A. Yes.20

Q. And those are the only facilities to which CES21

discharges?22

A. CES discharges, yes, to Sims Bayou south and23

north. The plants are -- you can divert flows from24

south to north and so on.25



57

Q. And when we talk about these violations --1

A. When we talk about violations we talk about2

Sims Bayou north.3

Q. Okay. What about Sims Bayou south? Have4

there been any violations in October?5

A. I'm not aware of any at this time.6

Q. And again, you would see the daily reports?7

A. Right.8

Q. So you would know whether there were any9

violations and you haven't seen any violations, correct?10

A. Correct.11

Q. And were there any violations at Sims Bayou12

south in September?13

A. I don't think so.14

Q. Okay. Let's focus, then, on the ammonia15

violations. You said there was ammonia violation in16

September. What was the ammonia violation? You just17

exceeded the monthly limit?18

A. Yes.19

Q. And there are daily --20

A. And that because when you have peaks, as I21

mentioned, even though you do not exceed a daily22

maximum, but you can exceed the monthly average because23

of those peaks.24

MR. CAMARA: And here I just want to25



58

explain for the Hearing Officer, the reason I'm asking1

these questions is because, again, if you remember2

47-208(f), one of the grounds is if we cause them to be3

in a plant violation. That's why I'm doing this.4

Q. (By Mr. Camara) Do you know what caused the5

ammonia violations? Do you know what caused the6

ammonia violations?7

A. Usually if you have interference with the8

treatment system.9

Q. Okay.10

A. Now, remember, wastewater treatment plants are11

designed to treatment domestic wastewater, not12

industrial waste water. So we rely on you and your13

client to treat that water to a level where we can treat14

it.15

MR. CAMARA: Can we have the record16

reflect that immediately before this answer, the witness17

consulted with City attorney Ms. Ceil Price, and that18

the words the witness used are almost literally the19

words that Ms. Price used to me on a phone call earlier20

today.21

A. For the record, he's absolutely wrong.22

Q. (By Mr. Camara) Okay. Anyway, so an ammonia23

violation would happen if the bugs at the plant were24

interfered with by some waste?25



59

A. Correct.1

Q. And have the bugs at the plant been interfered2

with? Have you tested for that directly? Do you know3

if the bugs at the plant are dying?4

A. When you lose nitrifiers, that's when you --5

when you lose nitrifiers, when the nitrifiers are not6

doing their job, then that's when you have ammonia7

violations.8

Q. Okay. And what's a nitrifier?9

A. It's a bug.10

Q. And that's the bug that cleans up the waste,11

just to put this in terms that the jury --12

A. That's one of the bugs in the mix of things.13

Q. What other bugs are there?14

A. Well, different. I'm not going to specify15

each one of them, but there's bugs in there that do16

different things.17

Q. But the one that the ammonia takes out are the18

nitrifiers, correct? Okay. And have you been able19

to -- so what kinds of waste would kill off the20

nitrifier bug?21

A. Most likely toxic waste.22

Q. Is there any particular kind of toxic or23

chemical waste that would kill off those bugs?24

A. At times, if you remember when we -- the25



60

phenol issues we have with CES.1

Q. Right, back in --2

A. We have plenty of violations because that3

phenol, so phenol is one of those.4

Q. Are there others besides phenol or is phenol5

the only thing that kills off nitrates (sic)? I don't6

really know that word. What is the word for the bug?7

A. Nitrifiers.8

Q. Nitrifiers?9

THE REPORTER: Can you spell it for me?10

MS. PRICE: I'm guessing it's11

N-I-T-R-I-F-I-E-R-S.12

Q. (By Mr. Camara) Do you know what -- so what13

industrial waste would kill off nitrifiers?14

A. I cannot say.15

Q. You can't tell me? You don't know?16

A. No. You know, a variety or combination.17

Q. Do you know any of the ones that would kill18

off nitrifiers?19

A. A named one, phenol.20

Q. Do you know any others?21

A. Well, I'm sure there's -- the BNA list is from22

here to there, so I'm sure these are in the regulations23

and there's limits on them for a reason.24

Q. There are many, many chemicals that would kill25



61

nitrifiers?1

A. Correct.2

Q. And more than 100 you would say?3

A. Possibly. You have to look at the BNA list.4

Q. So you haven't been able to determine which5

chemicals are killing off nitrifiers at the plant; is6

that correct?7

A. Not -- well, we do analyze for the influents8

coming to the plant.9

Q. Have you been able to identify which chemical10

waste are killing off the nitrifiers?11

A. No, but you see a combination of chemicals12

coming into the plant.13

Q. Sure. I understand that you do influent14

testing.15

A. The answer to your question is, no, I cannot16

determine that.17

Q. Okay. So since you don't know what's killing18

off the nitrifiers, you certainly cannot conclude that19

it's CES that's somehow killing off the nitrifiers,20

right?21

A. I can tell you it is industrial waste that is22

killing the --23

Q. Now, CES is not the only plant that feeds24

into --25



62

A. I agree with you, correct.1

Q. In fact, about how many plants feed in?2

A. How many industrial plants?3

Q. Yeah, plants feed into Sims north and south?4

A. I cannot tell you that.5

Q. More than ten?6

A. Probably not.7

Q. More than five?8

A. I can't tell you exactly, but we can get you9

that number.10

Q. Okay. Do you know whether CES represents a11

large or a small part of the inflow? Is it more than12

half? It's less than half, right?13

A. I mean, you know what CES discharge daily.14

Q. I actually don't. I don't know what portion15

that is of what comes in at Sims. Do you know?16

A. No.17

Q. So you don't know what's killing the nitrates18

(sic) because it could be a big list of anything --19

A. Let me go back.20

Q. Sure.21

A. The Sims Bayou north, the flow varies between22

4 to 10 million gallons per day.23

Q. Okay.24

A. So I think of a given day when your client25



63

discharges close to a million gallons or a half million,1

then you can see what the percentage is.2

Q. Sure. So it's somewhere between, like, a3

sixteenth and a fourth on a very high day.4

A. Right.5

Q. But the rest of it is made up by discharges6

from other sources and you can't determine which7

chemical is killing off the nitrates (sic) and you8

certainly can't trace that chemical to CES since you9

don't know what it is.10

So let me ask a different set of questions.11

Are you aware of any discharge at CES that poses an12

eminent threat to human life or to the welfare of a City13

employee?14

A. I can tell you when an operator calls me and15

say, "My ammonia is going out the roof or peaking," and16

as those employees work around the plant, they17

experience watery eyes or burning in the eyes or you can18

smell that chemical smell. So that's the feedback I get19

from operation folks.20

Q. Right. These are employees at the Sims City21

plant?22

A. Correct.23

Q. They're complaining of watery eyes and other24

problems because of high ammonia?25



64

A. No, not high ammonia.1

Q. Because of what?2

A. Because of some chemical that's coming into3

the plant.4

Q. Okay. Because of chemicals that are coming5

into the plant, they complain of watery eyes.6

A. Correct.7

Q. Do they have other symptoms besides watery8

eyes?9

A. Sometimes burning, sometimes the smell. You10

can smell the difference between a wastewater treatment11

plant normally running and one that has a slug of12

pollutants coming in that's not supposed to be there.13

Q. So employees at the Sims plant have complained14

to you about watery eyes and a bad smell; is that15

correct?16

A. That's one of the symptoms we see when17

industrial waste come into the plant, yes.18

Q. Have they complained to you about any other19

symptoms besides a bad smell and runny eyes?20

A. Sometimes you cannot work around those21

conditions.22

Q. Sure. But the only complaints they've made23

are runny eyes and a bad smell; is that correct?24

A. Bad smell, correct.25



65

Q. Okay. And runny eyes and bad smell are1

caused, you say, by pollutants coming into the plant?2

A. And burning eyes, yes.3

Q. Burning eyes, okay. And those two symptoms4

are caused by pollutants coming into the plant; is that5

right?6

A. I would venture to say when you have7

non-domestic wastewater coming into the plant -- because8

we have 39 plants and we know what we get when we have9

non -- when we have domestic and nondomestic wastewater10

coming to the plant.11

Q. So you know that it's industrial waste that's12

causing the burning eyes and the bad smell, right?13

A. According to them, yes.14

Q. Yes, according to the --15

A. Operation staff.16

Q. Okay. And do you know anything more specific17

than that? Do you know which industrial wastes would18

cause burning eyes or bad smell?19

A. No.20

Q. Okay. And since you don't know which21

industrial waste, you certainly can't say that there are22

industrial waste coming from CES, can you?23

A. No. There is a service area that CES is24

contributor to.25



66

Q. Right. So you know that it's industrial1

waste --2

A. So your client is contributing to whatever we3

have.4

Q. Sure. The industrial waste is coming from a5

group of providers, not just CES?6

A. Correct.7

Q. And you know that it's something in that8

industrial waste that causes the burning and the bad9

odor, but you don't know what. And so you certainly --10

A. Given your client is the one with the11

violations and not the others.12

Q. Right. So the basis for your conclusion that13

CES is causing burning eyes and an odor is that we have14

some prior violations?15

A. I would suggest to you that you go to the16

corner of Wayland and Gray and pop up the manhole and17

see what your client is discharging. Or go to Sample18

Point No. 5 and pop up the manhole and look inside the19

Sample No. 5 and see what client is discharging. Then20

maybe you understand what we're talking about.21

Q. Let me dive into that some more, because I've22

actually -- I have seen some of the stuff they23

discharge. What's the difference between CES's -- well,24

do you know which other discharges discharge into Sims25



67

north and south? Can you name one of them?1

A. Probably Oxid is one.2

Q. Is Marichem one?3

A. I'm not sure.4

Q. The one you named is Oxid?5

A. Oxid.6

Q. Do you know any others?7

A. No.8

Q. What's the difference between the waste that9

Oxid generates and the waste that CES generates?10

A. You take all kind of waste, you wash all kind11

of tank trucks that has been hauling multiple chemicals.12

Q. Right.13

A. I think even CES themselves don't know14

sometimes.15

Q. We do, actually. We have this thing called a16

Waste Data Information Sheet that tells us what it is17

and what procedures to follow.18

A. I've been to the lab and I've seen.19

MS. PRICE: At some point we're getting20

somewhat far afield.21

MR. CAMARA: Sure. The hearing officer22

is free the cut me off at any time.23

MS. PRICE: Exactly. And I would suggest24

that if you would like to get more information about25



68

plant operations, that we would be happy to provide an1

operator or a manager at the Sims plant.2

MR. CAMARA: Let me just -- I appreciate3

that.4

MS. PRICE: And if that is what the5

question is, because I think --6

MR. CAMARA: I would like to get that7

person, but the point of my questioning here is to go to8

the eminent harm to City employees. Remember, those are9

the three things. And I think I've shown that they10

haven't shown eminent physical harm to City employees.11

The other thing I point out is, again,12

notice in my questioning here, I've dug out some links,13

right? These people who complain about the burning eyes14

and what not. And I didn't find that out until right15

now. And then I'm told there are these operators who16

can tell me about it, but I didn't find that out until17

right now.18

And then there's the suggestion that we19

continue the hearing or have another time when I can20

question these people. Meanwhile, my client's plant is21

shut down. Our business is shut down. There are more22

than 70 employees there who are going to have to be23

terminated if our business can't operate. There are24

people who are sending waste to us every day who can't25



69

continue to do it. There are wastes on site that can't1

be processed, other arrangements have to be made, and2

I'm told that I need to wait while we get the correct3

people in here.4

That's why there's a notice period, the5

way you're supposed to do this. You give notice, you6

wait ten days, everyone marshals their evidence.7

Meanwhile, operations continue until they can prove8

their case. They don't get to do this where I come in9

here and I have to disprove the case on the fly, even10

though, frankly, I've done that.11

HEARING OFFICER: I think you made your12

point regarding the violations and giving you the13

opportunity ten days no notice to provide the evidence.14

MR. CAMARA: Well, I don't want to take15

up more -- go ahead.16

HEARING OFFICER: And my suggestion would17

be if additional information or evidence is required, in18

addition to employees who are complaining about those19

symptoms. And also, the other industrial waste who are20

contributing to the system, if they can be identified21

for further, you know, discussion.22

MR. CAMARA: I'd like to do that, but I23

would ask, Your Honor, to basically require them to go24

through that process where they give us notice, but let25



70

us operate. Because that's going to take some time,1

right? I have to depose these people. I have to depose2

the operations managers. I have to depose people at3

these other plants to see whether it's their waste4

that's causing it. Meanwhile, we should get to operate,5

right?6

Then we can have a real hearing where I7

have my witnesses, I know what's going on; they have8

their witnesses; we've deposed them out of court; we9

give an orderly presentation to a federal judge or to a10

hearing officer like you; and then a decision is made.11

What I'm asking you to do is just to say12

that the emergency shutdown was inappropriate. And if13

you've listened to the testimony of their only witness,14

he says with respect to plant violations, can he say15

that CES caused those ammonia violations? No. Can he16

say that CES caused the burning in the eyes and the17

odor? No.18

Frankly, it's not clear to me that19

burning in the eyes and an odor is a sufficient kind of20

harm to shut someone down. That seems to me the sort of21

thing that happens at waste management plants. But even22

if it is a sufficient harm, he cannot say today that23

it's us who caused it, and that means that they can't24

satisfy their burden under 47-208.25



71

I don't want to take more of your time,1

so I'll stop for now. I will say that I would like the2

right to depose all these other people, but I think on3

the evidence that's been presented by the City today4

it's clear that an emergency shutdown is not5

appropriate. Thank you, Your Honor.6

MR. NYBERG: Kiwi, before you give up the7

witness, maybe want to bring up one point --8

MR. CAMARA: Sure.9

MR. NYBERG: -- for you to consider. I10

don't think we have to -- we haven't had time to bring11

in an experts, so in one sense we really are kind of12

throwing ourselves out there. But we do have what the13

City has proposed are the violations and maybe it's a14

fair presumption that we're not violating the permit15

that the chemicals would not be causing the symptoms.16

We know there's four of them. Robin has17

the list and it may be worthwhile looking -- getting a18

little testimony on whether the specific chemicals that19

have been cited by the City as in violation of the20

permit, whether they could at all be related to the21

issues that you're saying created a sense of harm at the22

plant. I know I have right here copper and zinc, so23

those would be the first two.24

Q. (By Mr. Camara) Does copper in the plant25



72

cause burning of the eyes?1

A. I'm not sure.2

Q. Does copper cause a bad odor?3

A. It depends on what form it comes in. I'm not4

sure.5

Q. Does zinc cause burning of the eyes?6

A. Are you talking about the excessive violation7

of zinc in your permit?8

Q. Yeah, you cited us for --9

A. Yeah, because you're exceeding your permit.10

Q. Yeah. Does zinc, that you say we exceeded the11

permit by, does that cause burning of the eyes?12

A. Well, I'm not an expert on that, so I cannot13

answer your question.14

MR. CAMARA: What were the other things.15

MR. NYBERG: Robin has the list.16

Q. (By Mr. Camara) Does trichlorophenol cause17

burning of the eyes? You don't know?18

A. No.19

Q. No, it doesn't or, no, you don't know?20

A. I don't know the answer.21

Q. Does o-cresol cause burning of the eyes?22

A. Again, I don't know the answer.23

Q. Does p-cresol cause burning of the eyes?24

A. Are these the things cited in your effluent?25



73

Q. Yeah. September 10 NOV.1

A. So these are these?2

Q. What's that?3

A. These are violations of your permit, correct?4

Q. No. These are alleged violations of our5

permit.6

A. Okay.7

Q. So does p-cresol cause burning of the eyes, do8

you know?9

A. I don't know the answer to that.10

MR. CAMARA: So the specific things they11

cited us for, their witness can't say whether those12

cause physical symptoms in any way. I've laid out my13

argument, so I'm done. Thank you very much for your14

time, Mr. Samarneh.15

HEARING OFFICER: Cross-exam.16

EXAMINATION17

BY MS. PRICE:18

Q. I would like to ask Mr. Samarneh if he is19

trained as a toxicologist.20

A. No, I'm not.21

Q. Are you trained in industrial hygiene?22

A. No, I'm not.23

Q. Are you a medical professional?24

A. No.25



74

Q. Are you a professional engineer registered in1

the State of Texas?2

A. Yes, I am.3

Q. Do you know what the procedure is at the Sims4

Bayou, either north or south plant, if an operator5

experiences physical discomfort during the course of6

their day? Do you know what the procedure is to report7

that physical discomfort?8

A. No, I don't.9

Q. Do you know whether there may be another10

department, for example, human resources, that there may11

in fact be other protocols that you're unaware of?12

A. Could be.13

Q. We did not get into the report exactly what14

Mr. Samarneh's responsibilities are. And would you15

share those with us for the record?16

A. For the record, my area of responsibility is17

the regulatory compliance for all the wastewater18

treatment plants. And also, I oversee the wastewater19

laboratory and the industrial pretreatment program.20

Q. How long have you been employed at the City?21

A. Three and a half years.22

Q. Have you engaged in any conversations with23

regulators either from TCEQ or the Environmental24

Protection Agency concerning violations at any of the25



75

City's wastewater treatment plants?1

A. Yes, I have. I am the liaison between2

wastewater operation and the regulatory agencies.3

Q. Do you know whether the City has had violation4

at any of its plants?5

A. Yes, I do.6

Q. Do you know whether we are -- whether the7

City -- let me rephrase that.8

Do you know whether either Almeda Sims, Sims9

north or Sims south are currently experiencing either10

excursions or in violation of any of the terms of our11

permits?12

A. As I mentioned, we had the violation at Sims13

Bayou north in September. September '09.14

Q. Are you in any kind of discussion with -- is15

that a TCEQ permit or EPA permit?16

A. That's a dual permit.17

Q. Are you in any kind of conversations with TCEQ18

regional or headquarter staff on how the City proposes19

to resolve those violations?20

A. The procedure is whenever we have an effluent21

violation, a noncompliance notification has to be22

submitted to the state. And we usually investigate what23

causes these violations and we submit a notification to24

the state explaining to them what might be the cause and25



76

what kind of remedy we're undertaking to fix the1

problem.2

Q. Do you know how many industrial customers are3

upstream of CES's discharge point?4

A. No, I do not.5

Q. How many industrial customers -- and I think6

Mr. Camara may have asked this question. You don't know7

how many industrial users we have discharging into that8

plant?9

A. But that's easy to find.10

Q. Okay. We just don't know today.11

MS. PRICE: I don't have any further12

questions.13

MR. CAMARA: I think Robin had a few.14

MR. MORSE: Just to clarify, if I may.15

HEARING OFFICER: Yes, please.16

MR. MORSE: For the record, I'm Robin17

Morse.18

EXAMINATION19

BY MR. MORSE:20

Q. You indicated Mr. Samarneh that when you have21

a violation like you said you had in September for22

ammonia, the procedure is to investigate the cause of23

that upset, correct?24

A. Correct.25



77

Q. Did you do so with regard to the September1

issue for ammonia?2

A. Actually, September has several peaks, as I3

mentioned to Mr. Camara, of ammonia. And usually what4

we do is we pull an influent sample and try to analyze5

what's coming with the influent. However, what happens6

usually is when a slug come in or pollutant, by the time7

you analyze it, it's already gone through and you see8

the effect at the effluent side of the process. So9

unless, you know, you have prior knowledge of what's10

coming in, there's no way you can prevent it.11

Q. But the standard procedure is to at least take12

a sample of the influent to see if you can identify it13

as an ongoing influent problem?14

A. Correct. We usually -- especially for this15

plant, we keep an influent sample for the previous two16

or three days. So just in case we experience something,17

we can go back and take a look, see what hit the plant.18

Q. When you say this plant, you're talking about19

the Sims plant?20

A. Correct.21

Q. Okay. So, in fact, you take regular samples22

in case you do have a problem. Did you do so in23

September?24

A. I believe we may have some.25



78

Q. And did you identify the nature of the1

chemical upset?2

A. I haven't seen the reports, but -- I haven't3

seen the analysis yet.4

Q. Okay. But that's something that would have5

been available to the City prior to the time that CES6

was shut down. In other words, you had that data7

available back in September?8

A. What we do is we keep these influent samples9

preserved and we pull them out in case we see an issue10

that we need investigate.11

Q. But you knew you had a problem in September?12

A. As I said, you've seen peaks, but not13

necessarily violating the daily maximum limit, but those14

peaks add up to an average monthly violation.15

Q. You have a 30-day average?16

A. Correct.17

Q. Both pounds and concentration?18

A. Correct.19

Q. Do you know which --20

A. Concentration.21

Q. Just concentration. So the pounds limits were22

in compliance throughout that time period?23

A. Correct.24

Q. And in fact, isn't it true for the Sims Bayou25



79

plant for the last three plus years, you've been in1

compliance with your pounds per days limits for ammonia2

nitrogen?3

A. Yeah, but you can look it up and see how many4

times I've been in violation of my daily maximum and5

monthly average, and you can count those if you want to.6

They are public record.7

Q. In terms of pounds per day, you're saying --8

A. I'm saying concentrations -- monthly daily9

average concentrations.10

Q. Okay. And is it true, sir, that prior to this11

September issue that you've identified, that was a12

concentration problem?13

A. Correct.14

Q. That dating all the way back to a year ago15

that the City was in compliance with its concentration16

limits as well for ammonia nitrogen?17

A. A year ago meaning what?18

Q. October of '08. You may not know.19

MS. PRICE: He -- yeah.20

Q. (By Mr. Morse) Are you familiar with the --21

MR. CAMARA: Would you answer actually,22

just for the record, if you don't know.23

HEARING OFFICER: Are you looking for24

that answer?25



80

A. I'm just looking. Just give me a minute.1

Would you please restate your question?2

Q. (By Mr. Morse) Yes, sir. Isn't it true that3

at least up until this issue you identified in4

September of '09, that for the prior year all the way5

back to October of '08, that as far as what is6

reporting to the state and on through -- gets in --7

there's an EPA database, is there not, that you can8

check on plants and how they're doing under the NPDS9

program?10

A. I'm sure there is one, but we have --11

Q. Are you familiar with the EPA Echo database12

where you can go in and look at certain permits and look13

at their parameters and their permits and see whether or14

not they're meeting their requirements on a monthly15

basis over a period of time?16

A. I haven't been to that particular website.17

Q. Well, isn't one of the points of making18

discharge monitoring reports, that that information19

would be available to the regulators both at the state20

and federal level and to the general public?21

A. Correct. We do submit noncompliances and DMRs22

on a monthly basis, so they have that information.23

Q. Well, I guess my question is to you -- and24

I've gone in and tried to pull that data concerning the25



81

Sims plant. And I'll represent to you, and if you think1

I'm wrong, you can state on the record. But I represent2

to you that I don't see anything in the way of ammonia3

nitrogen problems dating back to October of '08.4

A. Is that convenient --5

Q. Or concentration.6

A. Is that a convenient date to pick?7

Q. Well, I'll be happy to share the data that I8

have in front of me.9

A. Maybe you want to go back a little farther.10

Q. We can go back, but my point is the City has11

made a determination that there was some eminent threat12

that had developed recently, apparently, that had to --13

or resulted in the decision to cut off service without a14

ten-day hearing. Made that decision, right? And isn't15

it true that that was made because of the sampling16

problem as opposed to any actual impact or upset at the17

plant?18

MS. PRICE: If you know.19

Q. (By Mr. Morse) If you know.20

A. I do not know.21

Q. And the City has the ability to collect22

samples on its own immediately outside the CES facility23

and has done so in the past, has it not?24

A. Are you talking Sample 1 or 5?25



82

Q. Either or both.1

A. Sample 5, correct. We have a sampling point2

that we can sample on our own.3

Q. And when you suspected or you experienced this4

problem --5

A. However, Sample No. 1 is inside CES facility6

and we cannot -- that sampling point, we have to gain7

access to CES to get to it.8

Q. And you can get that access upon request?9

A. Correct.10

Q. And you can also sample in a downhole manhole11

between the point of discharge and the Sims plant12

farther downstream if you want?13

A. There's a manhole right at the corner Wayland14

and Gray. But also, I think that connect to some other15

flow coming in, so I don't know how representative the16

sample is.17

Q. And when this ammonia issue came up in18

September, did the City try and collect samples in or19

around the CES plant to determine whether there was20

anything in the CES effluent that was contributing to21

that ammonia issue?22

A. Let me be honest with you. Whenever we have23

an issue, we do not pick on one certain company. I24

mean, I do not pick CES to go and sample. I look at the25



83

area -- the service area as to who could potentially1

impact the plant.2

Q. But you chose to shut down CES.3

A. I didn't choose to shut down CES. CES chose4

not to comply with the directives.5

Q. And again, the directive had to -- if you look6

at the exhibits, the October correspondence, that was7

because of the failure to get the sampler in working8

order on Sampling Point No. 5?9

A. Let's go back. I mean, you've got to look at10

your internal operation between your truck washing and11

your CWT, okay. When you start mixing and matching12

between two permits, two different categories, then13

that's a concern for everybody.14

Q. That may be a concern, but I haven't seen any15

evidence today that that's happened at CES.16

A. Well, actually, CES employees informed me in17

my presence that they take water from the truck wash and18

profile and manifest it into the CWT facility, and that19

can't be done.20

Q. Why is that?21

A. Because you have to -- CWT has different regs22

and you have to have it manifested, you have to know23

what you're putting into one place. Most of that water24

is used for equalization. So you're taking water from25



84

the truck wash into CWT and profile without any1

analysis.2

MR. CAMARA: Who told you that?3

A. One of your employees.4

MR. CAMARA: Who?5

A. Clint Hopkins.6

MR. CAMARA: When?7

A. When I visited that --8

MR. CAMARA: On Saturday?9

A. No, no, no.10

MR. CAMARA: Sorry. When?11

A. September -- it's one of our notes.12

Q. (By Mr. Morse) Are you aware of any13

problem -- you mentioned September and ammonia. The14

other parameters in the plant, they were in compliance.15

It was only the ammonia limit that you had a problem16

with?17

A. Correct.18

Q. And in October, do you know whether you had19

any unusual spikes or violations in October?20

A. The facility gets samples on a daily basis and21

there's a daily report that comes up, so I cannot recall22

that every day what's the ammonia level, whether there's23

spikes in the ammonia.24

Q. I guess the question I basically had was25



85

whether you had an ammonia problem right up until the1

time that service was discontinued or cut off on2

Halloween, which is at the end of the full month of3

October, after -- more than 30 days after the ammonia4

issue that you testified to in September.5

A. Again, I'm not sure how many spikes I have,6

which may not be a violation, so I cannot have that7

information handy.8

Q. And is it true, sir, that you did not rule out9

that other industrial sources in the system had some10

contributory effect on whatever the issue was in11

September? City hadn't made that determination at this12

point, is that a fair statement?13

A. As I said, we usually look at the influent to14

the plant, so that not could be -- could be reason from15

different places.16

Q. And the relative concentrations that we're17

talking at CES, I think they were cresol and another18

chemical mentioned in the September 10 letter, which is19

Exhibit 4. Do you know what the approximate20

concentrations at CES were?21

A. No, sir, I don't.22

Q. The September 10 letter, Exhibit 4, do you23

have that in front of you, sir?24

A. Yeah, I see it.25



86

Q. So we have 2, 4, 6 trichlorophenol at 0.981

milligrams per liter, that's less than a part per2

million. A milligram per liter is a part per million?3

A. Correct.4

Q. So approximately one part per million. And5

then we have o-cresol at 0.609 parts per million or6

milligrams per liter and p-cresol at 1.179 milligrams7

per liter. Did I read that correctly?8

A. Correct.9

Q. Do you have any idea what those10

concentrations -- how they would dilute in the system11

before they got all the way to the Sims plant, or what12

you would expect to show up as it combined with other13

waste flows in the system?14

A. These are your discharge. These are15

concentration --16

Q. As laid out in the NOV of September 10.17

A. Correct. These are your exceedance of your18

own permit. What does this have to do with the Sims19

Bayou?20

Q. That's what the alleged concentrations were.21

My question -- again, it gets back to whether these22

types of concentrations would be causative as far as23

creating upset or harm to the City's Sims' plants.24

A. I cannot answer that question. However, you25



87

have a permit and you have limits that it's supposed to1

meet. I mean, that's part of your permit requirement2

and that's part of your contract with the City, so --3

Q. I understand that. But would you agree that4

not every permit exceedance amounts to an eminent and5

substantial hazard?6

A. I cannot answer that question.7

Q. And would you say that many of your industrial8

customers have occasional exceedances?9

A. Possibly.10

Q. And do you know in the last year, aside from11

CES, have you cut off service to other industrial12

services -- or sources, I'm sorry.13

A. I don't know.14

MR. CAMARA: I think we're done.15

HEARING OFFICER: Done?16

MR. CAMARA: Yes.17

HEARING OFFICER: Any question for the18

witness?19

MS. PRICE: One -- a couple.20

FURTHER EXAMINATION21

BY MS. PRICE:22

Q. I think there was a line of questions about23

how many other industrial users there are that -- and I24

believe that you stated that you didn't know the precise25



88

number.1

A. But we can get that.2

Q. Right. My question for you is, do you know3

whether there are other industrial users that discharge4

to the Sims plants that have outstanding NOVs? How many5

of them there may be, I don't know.6

MR. CAMARA: Do you know?7

A. I would venture to say none, but I don't know8

the answer. The correct answer would be I don't know,9

to be 100 percent sure. But that information is10

available and we can get that information.11

MR. CAMARA: So, again, just our closing12

statement just very briefly, again, is that under13

47-208(f) they haven't shown the two things they can14

show, eminent harm to a person or City employee, or that15

it's going to violate the plant's permit conditions.16

And that we think is the test here.17

Everything else can be litigated after proper notice18

where everyone has a chance to develop the evidence and19

where the plant continues to operate and service its20

customers and employees.21

MS. PRICE: And the closing statement22

from the City is that the City does believe that it has23

met this burden. We acknowledge that it is an24

extraordinary remedy, that there is the ordinary 20825



89

procedure, which you find in 208(a), which luckily1

doesn't happen very often.2

But I will concede I have seen at least3

one termination letter and I was involved in that4

hearing, but unfortunately, that did also involve your5

client. But it may also be true that there are other6

industrial users that get NOVs, and I am confident that7

there are, but this is an extraordinary remedy.8

And the director is not required to wait9

until a plant is dead, till a plant has actual upset10

conditions, or till the plant already has permit11

violations. He's allowed to prevent injury. Getting12

back to the overarching requirement of the Clean Water13

Act, is that there are parameters that are put in place14

for the industrial users to allow them to use the City's15

publicly-owned treatment works.16

There is always an option for an17

industrial user to get its own NPDS or TPDS permit18

directly from the state and not use our system. But19

because as a convenience -- as a business convenience to20

the many industries that operate in the City of Houston,21

we have very strict permit limits and vigorous22

enforcement procedure to assure our permit-issuing23

agencies, TCEQ and EPA, that we are using best24

engineering judgment to maintain the compliance of our25



90

plant and to protect human health and the environment.1

And thank you very much, Mr. Nassiri, for2

serving as our hearing officer.3

MR. CAMARA: Thank you very much, sir.4

HEARING OFFICER: Thank you for coming.5

And if there are no further questions, I will close this6

hearing at --7

MR. CAMARA: May we ask when we might8

expect a decision?9

HEARING OFFICER: I was going to say the10

time and then I was going to say that. At 4:18, isn't11

it? Yes. I will provide you a written decision on this12

one in a timely manner.13

MR. CAMARA: Could I ask -- I don't mean14

to rush you. It's just that, again, we have this waste15

that we have to store at the plant and customers to16

tell. Do you have any idea of whether it might be a17

day, a week, longer?18

HEARING OFFICER: I would probably say 4819

hours.20

MR. CAMARA: Okay. Thank you very much,21

sir.22

HEARING OFFICER: All right. Thank you23

very much.24

(Proceedings concluded at 4:20 p.m.)25



91

THE STATE OF TEXAS :1

2

3

I, Julie M. Silhan, Certified Shorthand Reporter4

in and for the State of Texas, do hereby certify that5

the above and foregoing statements as set forth in6

typewriting is a full, true, and correct transcript of7

the proceedings had at the time of taking said8

proceedings.9

I further certify that I am neither attorney nor10

counsel for, related to, nor employed by any of the11

parties to the action in which this hearing was taken.12

Further, I am not a relative or employee of any13

attorney of record in this cause, nor do I have a14

financial interest in the action.15

GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this16

the 5th day of November , 2009.17

18

19

Julie M. Silhan - Texas CSR 6507

Expiration Date: 12/31/0920

7838 Hillmont


cestranscript

Documents

Transcript of cestranscript