Professional Documents
Culture Documents
Lynne Finley
District Clerk
Collin County, Texas
By Erica Armenta Deputy
401-01204-2017 Envelope ID: 15801981
CAUSE NO. ___________________
_____________________________________________________________________________
COMES NOW Hooshang Kordy, Harold Kieke, Ailun Qian and Stephan Schmidt (herein
Crescent Creek Residents or Plaintiffs) by and through their undersigned counsel, and hereby
file this Original Petition against the City of Plano, Texas (City of Plano or Defendant), and
I.
INTRODUCTION
1. Plaintiffs complain, inter alia, of polluting events caused by the conduct and
activities of the City of Plano. Defendants releases, emissions, and discharges caused and
continue to cause Plaintiffs and their property to be exposed to hazardous gases, chemicals, and
industrial/hazardous wastes, which caused damages including but not limited to the following:
health, impairment of physical health, exacerbation of physical health and/or preexisting health
conditions, harm from assault on Plaintiffs senses, nausea, loss of peace of mind, emotional
Plaintiffs property; constructive eviction of Plaintiffs from Plaintiffs property; loss of Plaintiffs
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quality of life; and other damages. Plaintiffs hereby bring suit against the City of Plano and for
causes of action would show unto this honorable Court the following:
II.
DISCOVERY PLAN
2. This case shall be conducted under a Level 3 scheduling order as outlined in the
III.
PARTIES
7. Defendant City of Plano, Texas is a municipality in the State of Texas and may be
served by serving its City Secretary, Ms. Lisa Henderson, at 1520 K Ave., Suite 300, Plano, Texas
75074.
IV.
JURISDICTION AND VENUE
8. Venue is proper in Collin County, Texas pursuant to the Texas Civil Practice &
Remedies Code because the properties at issue are each located in Collin County, Texas and
because the conduct giving rise to this suit arose, all or in significant part, in Collin County, Texas.
See TEX. CIV. PRAC. & REM. CODE 15.002(a)(1) and 15.011. Plaintiffs seek damages in excess
V.
FACTUAL BACKGROUND
9. The City of Plano together with the North Texas Municipal Water District provides
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wastewater treatment services within its jurisdiction. Specifically, the City of Plano together with
the North Texas Municipal Water District owns and operates a wastewater treatment facility and
is the owner and/or operator of the associated sanitary sewer pipe and conveyance system
underlying portions or all of the City of Plano, Texas, all such parts of which constitute a publicly-
owned treatment work or POTW as defined in 40 C.F.R. 122.2 (collectively the Sanitary
Sewer System).
10. The City of Plano together with the North Texas Municipal Water District is
authorized to operate the wastewater treatment facility pursuant to a federal National Pollutant
Discharge Elimination System Permit (CWA Permit) issued under Section 402 of the CWA, 33
U.S.C. 1342. In connection with such authorization, the City of Plano together with the North
Texas Municipal Water District is required, among other things, to administer a pretreatment
11. The CWA Permit imposes certain conditions, including without limitation:
Permit Conditions 2.b. The permittee has a duty to comply with all conditions
of the permit. Failure to comply with any permit condition constitutes a violation
of the permit and the Texas Water Code or the Texas Health and Safety Code, and
is grounds for enforcement action, for permit amendment, revocation, or
suspension, or for denial of a permit renewal application or an application for a
permit for another facility.
Permit Conditions 2.d. The permittee shall take all reasonable steps to minimize
or prevent any discharge or sludge use or disposal or other permit violation that has
a reasonable likelihood of adversely affecting human health or the environment.
Operational Requirements 1. The permittee shall at all times ensure that the
facility and all of its systems of collection, treatment, and disposal are properly
operated and maintained. (emphasis added)
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Sludge Provisions. The permittee is authorized to dispose of sludge only at a
Texas Commission on Environmental Quality (TCEQ) authorized land application
site or co-disposal landfill.
12. All of the CWA Permit conditions, including those referenced above, constitute
1365(f)(6).1
13. Available public records document that the City of Plano has a long history of
complaints and incidents concerning sewage problems, sewage overflows, illicit discharges of
14. For instance, on February 7, 2012, a sanitary sewer overflow occurred in the Hidden
Meadows of Los Rios neighborhood at a manhole in Bob Woodruff Park on 18th Street in Plano,
Texas causing untreated sewage to enter the nearby Rowlett Creek.2 In addition to the release of
untreated sewage, bits of toilet paper, baby wipes and feminine hygiene products could also be
seen strewn around the manholes enclosure and along a nearby chain link fence. According to
nearby residents, the manhole overflows two to three times each year and many worry what the
wastewater is doing to the environment. City officials admitted that the City is having a hard time
finding a solution to the problem. It is unclear whether the City of Plano timely notified the Texas
Commission on Environmental Quality within 24 hours of the incident as required under the CWA
permit.
15. On June 13, 2016, another sanitary sewer overflowed near a lift station located at
7103 McKamy Trail in Plano, Texas.3 The sanitary sewer overflow included 144,000 gallons of
1
For purposes of citizen suit authority, effluent standard or limitation under [the CWA] includes a permit or
condition thereof issued under section [502 of the CWA] 33 U.S.C. 1365(f)(6).
2
http://www.dallasnews.com/news/plano/2012/02/07/sewage-overflow-at-plano-park-causes-a-stink-after-
rainstorms
3
http://starlocalmedia.com/planocourier/sanitary-sewer-overflow-near-indian-creek-in-plano/article_5817c1a4-
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untreated water from a manhole located approximately 600 feet from Indian Creek north of
Windhaven Parkway, Plano, Texas. The overflow made its way into Indian Creek approximately
five miles north of its confluence with the Elm Fork of the Trinity River. Field monitoring indicates
a negative impact to water quality for approximately 400 yards downstream. It was determined
that the release was caused in part due to aging infrastructure and increase system capacity in the
16. The Crescent Creek Residents have also been subjected to similar sanitary sewer
overflow events. Recently, a sanitary sewer overflowed in this area which caused raw sewage to
be discharged onto the Crescent Creek Residents properties. In addition, the overflow resulted
in raw sewage overflowing not only from the manhole, but also from a toilet in one of the Crescent
Creek Residents homes. The City of Plano did not assist the resident in cleaning up the raw
sewage that overflowed into his house. It is unclear whether the City of Plano timely reported
17. In addition, it is well documented that the Crescent Creek Residents have also been
exposed to air toxins, including hydrogen sulfide and methane, from the Sanitary Sewer System
in the past. City officials have acknowledged that air toxins were coming from its Sanitary Sewer
System and hired an engineering firm to try to determine a solution. It was later determined that
the air toxins were coming from an old underground sewer line that runs along nearby Russell
Creek. City officials admitted that the odor was unacceptable and tried to find a solution rather
than the Band-Aid approach that they had utilized in the past.
18. Unfortunately, the problem has not resolved. Recently, the Crescent Creek
Residents again complained about the rotten egg smell from the Sanitary Sewer System.4 Based
2f4f-11e6-995c-cfc1ccadb99d.html
4
http://dfw.cbslocal.com/2017/01/30/i-team-plano-testing-air-for-hazardous-gas-as-neighbors-complain-about-
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upon information and belief, the odor and related toxic air emissions are occasional, intermittent,
19. City officials have since admitted that the smell is hydrogen sulfide might be due
to a poorly designed sewer system in the area. The City again acknowledged that the situation
was unacceptable. It now appears the City of Plano previously tested the air quality around the
Sanitary Sewer System which indicated that the hydrogen sulfide levels were three to four times
above what the federal OSHA standards permit. These test results were not disclosed to the
Crescent Creek Residents. Many of the Crescent Creek Residents believe that similar air toxins
are migrating into their homes which has caused many of their recent health problems (i.e. severe
chemistry professor, the hydrogen sulfide levels discovered by the City of Plano could potentially
20. The discharge of the toxic air emissions from the Sanitary Sewer System as well as
the sanitary sewer overflow are violations of the CWA Permit conditions referenced above.
Sanitary sewer overflows (SSOs), which constitute violations of the CWA, are under heightened
scrutiny nationwide due to the serious threat posed to human health and the environment. The
U.S. Environmental Protections Agency has identified SSOs as one of its highest priorities, and
EPA is taking enforcement action at municipal sewer systems with Clean Water
Act violations to reduce pollution and volume of stormwater runoff and to reduce
awful-smell/
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unlawful discharges of raw sewage that degrade water quality in communities.5
21. The U.S Environmental Protection Agency has stated in its SSO Fact Sheet, that
neighborhoods that experience SSOs or perceived impairments to water quality drop in value.
22. The City of Plano together with the North Texas Municipal Water District has an
aging Sanitary Sewer System with hundreds of miles of wastewater lines that, upon information
and belief, is plagued by infiltration and blockages, and is sorely in need of a system-wide upgrade.
At this time the Sanitary Sewer System is likely to require significant capital repairs, upgrades,
and expansions.6
23. The City of Plano has failed to comply with its CWA Permit (i.e. applicable effluent
limitations and standards) by allowing its Sanitary Sewer System to fall into, and remain in, serious
disrepair, and allowing introduction of surface waters and pollutants into the Sanitary Sewer
System, emissions of noxious odor and toxic air emissions, and discharge of raw untreated sewage
into and on surface areas, and receiving waters in violations of the CWA Permit discharge
standards. On information and belief, the City of Plano has taken only temporary stop-gap
measures to address violations as they occur rather than implementing the necessary system-wide
improvements.
24. The City of Plano Sanitary Sewer System has blockages city-wide, has sanitary
sewer overflows, and clearly has the potential to cause pollutants to enter surface waters of the
state and/or cause effluent limit violations at the wastewater treatment plant. Additionally, the
City of Plano appears to have weighed the cost of correcting its violations against the level of
attention it has received from the U.S. Environmental Protection Agency and the Texas
5
http://www2.epa.gov/enforcement/national-enforcement-initiative-keeping-raw-sewage-and-contaminated-
stormwater-out-our
6
The City of Plano would be well served to review the U.S. Environmental Protection Agencys Financing Capital
Improvements for SSO Abatement publication.
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Commission on Environmental Quality.
25. To date, the Crescent Creek Residents are unaware that any formal enforcement
action has been taken by the U.S. Environmental Protection Agency or the Texas Commission on
Environmental Quality to cause the City of Plano to take actions to cease its violations of the CWA
and the CWA Permit. In particular, no federal or state action has been instituted to compel the
City of Plano to take actions to prevent SSOs onto or near the Crescent Creek Residents property
or into or adjacent to Russell Creek which is near the Crescent Creek Residents property or to
prevent the release of air toxins from the Sanitary Sewer System.
26. The U.S. Environmental Protection Agency has undertaken enforcement actions
against municipalities with CWA violations of a similar nature and magnitude. For, example, in
January 2015, pursuant to a settlement between the U.S. Environmental Protection Agency and
the City of Fort Smith, Arkansas, the City of Fort Smith resolved allegations that it failed to prevent
sanitary sewer overflows through proper operation and maintenance of its system. In settlement
the City of Fort Smith was required to spend more than $255 million plus the cost of routine
operation and maintenance on upgrades to its sewer collection and treatment system. Similarly,
in the last year, the City of Lima, Ohio resolved the governments allegations of discharges of raw
sewage with civil penalties and injunctive relief that is estimated to exceed $147 million.
VI.
CAUSES OF ACTION
COUNT 1: NEGLIGENCE
27. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully
28. As stated above, the City of Plano has allowed its Sanitary Sewer System to fall
into, and remain in, serious disrepair, and allowing introduction of surface waters and pollutants
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into the Sanitary Sewer System, emissions of noxious odor and toxic air emissions, and discharge
of raw untreated sewage into and on surface areas, and receiving waters in violations of the CWA
Permit discharge standards. It now appears the City of Plano previously tested the air quality
around the Sanitary Sewer System which indicated that the hydrogen sulfide levels were three to
four times above what the federal OSHA standards permit. These test results were not disclosed
to the Crescent Creek Residents. Many of the Crescent Creek Residents believe that similar air
toxins are migrating into their homes which has caused many of their recent health problems (i.e.
severe nausea, headaches, dizziness, and rashes). Based upon information and belief, the odor
and related toxic air emissions are occasional, intermittent, recurrent, sporadic or contingent upon
some irregular force. According to a University of Texas at Arlington chemistry professor, the
hydrogen sulfide levels discovered by the City of Plano could potentially be deadly if a person was
subjected to it.
29. On information and belief, the City of Plano has taken only temporary stop-gap
measures to address violations as they occur rather than implementing the necessary system-wide
improvements.
30. As a result, the City of Planos actions or inactions pose a threat to human health
and the environment. In connection with its activities, the City of Planos acts and/or omissions
of negligence, upon information and belief, include, but are not limited to, the following:
a. Failing to act reasonably and prudently to protect the Crescent Creek Residents and
their properties from exposure to raw sewage from SSOs as well as exposure to air
toxins;
c. Failing to comply with all local and state regulations and statutes governing the
operation and maintenance of the Sanitary Sewer System; and
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and otherwise address the further release of sewage and air toxins from the Sanitary
Sewer System.
31. Plaintiffs plead the doctrine of res ipsa loquitur. The existence and apparent
release, discharge and/or disposal of raw sewage and air toxins from the Sanitary Sewer System
which is in the control of the City of Plano, and the subsequent damage to Plaintiffs and their
properties, is proof of the breach of duty of care of the City of Plano and proof of its negligence.
32. Plaintiffs have sustained and will continue to sustain damages in excess of the
minimum jurisdictional limits of the Court as a direct and proximate result of these negligent acts
and/or omissions.
33. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully
negligence.
35. Defendant owed the aforementioned legal duties to Plaintiffs when conducting its
36. Defendant breached the duty to Plaintiffs through its activities, actions, and/or
inactions.
fraud, willfulness, wantonness and/or malice through its activities, actions, and/or inactions when
they caused releases, emissions, and discharges of hazardous gases, chemicals, and
38. Defendants conduct directly and/or proximately caused injury to Plaintiffs, which
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resulted in the damages detailed below.
39. Plaintiffs seek unliquidated damages within the jurisdictional limits of this court.
40. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully
41. In addition or in the alternative, Defendant is liable to Plaintiffs for Negligence Per
Se.
42. By the acts or omissions discussed herein, Defendants negligence violated statutes
designed to protect a class of persons to which Plaintiffs belong against the type of injury suffered
by Plaintiffs and which statutes are of the type that impose tort liability.
43. Specifically, Defendants negligence, with or without legal permitting and without
a. Violation of Sections 301(a) and 402 of the CWA, 33 U.S.C. 1311(a) and 1342,
as well as rules implementing the Act, by prohibited sewage overflows, illicit
discharges of sewage, emission of air toxins and illicit discharges into the Sanitary
Sewer System.
d. Violation of TEX. CIV. PRAC. & REM. CODE 75.002(h): An owner, lessee, or
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occupant of real property in this state is liable for trespass as a result of migration
or transport of any air contaminant, as defined in section 382.003(2) of the TEXAS
HEALTH AND SAFETY CODE [Air contaminant means particulate matter,
radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any
combination of those items, produced by processes other than natural], other than
odor, only upon a showing of actual and substantial damages by a plaintiff in a civil
suit.
45. Defendants actions directly and proximately caused injury to Plaintiffs, which
46. Plaintiffs seek unliquidated damages within the jurisdictional limits of this court.
COUNT 4: TRESPASS
47. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully
48. As stated above, the City of Plano has allowed its Sanitary Sewer System to fall
into, and remain in, serious disrepair, and allowing introduction of surface waters and pollutants
into the Sanitary Sewer System, emissions of noxious odor and toxic air emissions, and discharge
of raw untreated sewage into and on surface areas, and receiving waters in violations of the CWA
49. It now appears the City of Plano previously tested the air quality around the
Sanitary Sewer System which indicated that the hydrogen sulfide levels were three to four times
above what the federal OSHA standards permit. These test results were not disclosed to the
Crescent Creek Residents. Many of the Crescent Creek Residents believe that similar air toxins
are migrating into their homes which has caused many of their recent health problems (i.e. severe
nausea, headaches, dizziness, and rashes). Based upon information and belief, the odor and
related toxic air emissions are occasional, intermittent, recurrent, sporadic or contingent upon some
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irregular force. According to a University of Texas at Arlington chemistry professor, the
hydrogen sulfide levels discovered by the City of Plano could potentially be deadly if a person was
subjected to it.
50. On information and belief, the City of Plano has taken only temporary stop-gap
measures to address violations as they occur rather than implementing the necessary system-wide
improvements.
51. The foregoing actions or inactions by the City of Plano constitute a trespass onto
Plaintiffs and their property. The City of Planos conduct in causing and being the source of the
raw sewage and the migration of toxic air emissions is unlawful and without permission.
52. Plaintiffs have sustained and will continue to sustain damages in excess of the
minimum jurisdictional limits of the Court as a direct and proximate result of these acts and/or
omissions.
COUNT 6: NUISANCE
53. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully
54. The City of Plano created a nuisance by improperly, negligently, recklessly, and/or
intentionally allowing the introduction of surface waters and pollutants into the Sanitary Sewer
System, emissions of noxious odor and toxic air emissions, and discharge of raw untreated sewage
into and on surface areas, and receiving waters in violations of the CWA Permit discharge
standards.
55. The City of Plano has created a nuisance by failing to operate its Sanitary Sewer
System in a manner that would have prevented the above events. Such actions or inactions have
substantially and unreasonably interfered with Plaintiffs and their use and enjoyment of the
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Plaintiffs Property. Based upon information and belief, the odor and related toxic air emissions
which caused the substantial and unreasonable interference are occasional, intermittent, recurrent,
56. Due to the nuisance created by the City of Plano, Plaintiffs have been damaged in
VII.
DAMAGES
57. The City of Planos, actions, and/or inactions, as detailed above, directly and/or
proximately caused personal injury and property damage to Plaintiffs, which include the following:
a. Physical pain in the past, present, and future which include but are not limited to:
unreasonable fear, apprehension, offense, discomfort, annoyance, sickness, injury
to physical health, impairment of physical health, exacerbation of physical health
and/or preexisting health conditions, harm from assault on Plaintiffs senses,
nausea, loss of peace of mind, emotional harm/distress, inconvenience, and
deprivation of enjoyment of property.
b. Emotional harm and mental anguish in the past, present, and future which include
but are not limited to: unreasonable fear, apprehension, offense, discomfort,
annoyance, sickness, injury to physical health, impairment of physical health,
exacerbation of physical health and/or preexisting health conditions, harm from
assault on Plaintiffs senses, nausea, loss of peace of mind, emotional harm/distress,
inconvenience, and deprivation of enjoyment of property.
c. Physical impairment in the past, present, and future which include but are not
limited to: unreasonable fear, apprehension, offense, discomfort, annoyance,
sickness, injury to physical health, impairment of physical health, exacerbation of
physical health and/or preexisting health conditions, harm from assault on
Plaintiffs senses, nausea, loss of peace of mind, emotional harm/distress,
inconvenience, and deprivation of enjoyment of property.
d. Medical expenses in the past, present, and future which include but are not limited
to: unreasonable fear, apprehension, offense, discomfort, annoyance, sickness,
injury to physical health, impairment of physical health, exacerbation of physical
health and/or preexisting health conditions, harm from assault on Plaintiffs senses,
nausea, loss of peace of mind, emotional harm/distress, inconvenience, and
deprivation of enjoyment of property.
e. Loss of earning capacity in the past, present, and future which include but are not
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limited to: unreasonable fear, apprehension, offense, discomfort, annoyance,
sickness, injury to physical health, impairment of physical health, exacerbation of
physical health and/or preexisting health conditions, harm from assault on
Plaintiffs senses, nausea, loss of peace of mind, emotional harm/distress,
inconvenience, and deprivation of enjoyment of property.
f. Loss of consortium in the past, present, and future which include but are not limited
to: unreasonable fear, apprehension, offense, discomfort, annoyance, sickness,
injury to physical health, impairment of physical health, exacerbation of physical
health and/or preexisting health conditions, harm from assault on Plaintiffs senses,
nausea, loss of peace of mind, emotional harm/distress, inconvenience, and
deprivation of enjoyment of property.
k. Attorneys fees under TEXAS CIVIL PRACTICE & REMEDIES CODE 102.002(b), and
other statutory authority providing same.
l. Exemplary damages under TEXAS CIVIL PRACTICE & REMEDIES Code 41.001,
41.003(a), et seq.
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suffered by Plaintiffs. Early detection of both current symptoms and potential
symptoms will help to ameliorate the severity of the disease(s) caused by
Defendants chemicals from Defendants activities, actions, and/or inactions.
Plaintiffs increased risk makes early and periodic diagnostic medical examinations
reasonably necessary according to contemporary scientific principles.
VIII.
JURY DEMAND
58. Plaintiffs demand a trial by jury on all factual issues raised in this action.
IX.
REQUEST FOR DISCLOSURE
59. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendant is requested
to disclose, within fifty (50) day of service of this request, the information or material described
in Rule 194.2.
X.
STATEMENT OF AMOUNT OF RECOVERY SOUGHT
60. Pursuant to Texas Rule of Civil Procedure 47, Plaintiffs plead that they seek
XI.
PRAYER
61. WHEREFORE, PREMISES CONSIDERED, Plaintiffs ask that the Court issue
citation for Defendant to appear and answer, and that Plaintiffs be awarded a judgment against
Defendant for the following: Actual damages; Prejudgment and Post-judgment interest; Court
costs; Exemplary damages; and all other relief to which Plaintiffs are entitled at law and in equity.
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Respectfully submitted,
GOLDMAN LAW, PC
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