Cestranscript

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2 ADMINISTRATIVE HEARING
3 NOVEMBER 4, 2009
4 IN RE: CES Environmental Services, Inc.
5 *******************************************
6 An Administrative Hearing was held on the 4th day
of November, 2009, from 2:19 p.m. to 4:20 p.m., before
7 Julie M. Silhan, Certified Shorthand Reporter in and
for the State of Texas, reported by stenographic means,
8 at the offices of City Hall Annex, 900 Bagby, Room 242,
Houston, Texas.
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1 INDEX
2 PAGE
3 Appearances........................................3
4 WALID Z. SAMARNEH
5 Examination by Mr. Camara....................54
6 Examination by Ms. Price.....................73
7 Examination by Mr. Morse.....................76
8 Further Examination by Ms. Price.............87
9 Closing Arguments by Mr. Camara...................88
10 Closing Arguments by Ms. Price....................88
11 Reporter's Certificate............................91
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1 APPEARANCES
2
3 HEARING OFFICER:
Mr. Ebrahim Nassiri, P.E.
4 Assistant Director
COH Public Works & Engineering
5 611 Walker, 15th Floor
Houston, Texas 77002
6 Telephone: 713/837-7378
Fax: 713/837-7084
7
8 COUNSEL FOR APPELLANT, CES ENVIRONMENTAL SERVICES, INC.:
Mr. K.A.D. Camara
9 Mr. Kent Radford
Mr. Tim Nyberg
10 Camara & Sibley
2339 University Boulevard
11 Houston, Texas 77005
Telephone: 713/893-7973
12
Mr. Robert E. (Robin) Morse, III
13 Crain, Caton & James
1401 McKinney Street, 17th Floor
Telephone: 713/752-8611
15 Fax 713/658-1921
16
COUNSEL FOR CITY OF HOUSTON:
17 Ms. Ceil Price
Mr. James P. Cargas
18 City of Houston, Legal Department
900 Bagby, 3rd Floor
Telephone: 832/393-6255
20 Fax: 832/393-6259
21
ALSO PRESENT:
22 Mr. Walid Z. Samarneh - COH Public Works
Ms. Tracy B. Calabrese - COH Legal Department
23 Ms. Candice de la Garza - COH Legal Department
Mr. Don Cheatham - COH Legal Department
24 Mr. Larry Schenk - COH Legal Department
25
4
1 HEARING OFFICER: Thank y'all for coming.
2 Good afternoon to y'all. My name is Ebrahim Nassiri and
3 I've been appointed by the Director of the Department of
4 Public Works and Engineering to oversee this hearing.
5 And my position, I'm assistant director in the
6 department. And this hearing is in response to
7 Mr. Camara's request of November 2nd, 2009, on behalf of
8 his client CSE. Right?
9 MR. CAMARA: CES Environmental Services,
10 Inc.
11 HEARING OFFICER: To appeal the City's
12 termination of the waste water service to your facility.
13 I will receive any information that you might provide
14 later on regarding the case. And this hearing is at 900
15 Bagby, Second Floor, Conference Room 242. And today is
16 November 4th, 2009, and it is 2:18 p.m.
17 We are kind of behind, but hopefully we
18 can proceed as we go along and faster that we can go
19 back to our job. Anyway, first, I will ask the
20 applicant or his rep to confirm the notice of this
21 hearing that was received. Is that right?
22 MR. CAMARA: Yes, we agreed to this
23 hearing.
24 HEARING OFFICER: And second, I will hear
25 from the Department of Public Works and Engineering's

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1 witness regarding the reason for the termination of the
2 waste water service, later on. And the applicant may
3 ask questions of the City's rep and the applicant may
4 make a statement and present evidence and City's rep
5 will have opportunity to ask questions.
6 This is an administrative hearing and
7 will be conducted informally. This is not a legal court
8 or such a setting and without strict rules of judicial
9 procedure and evidence. I will hear all the relevant
10 testimony as long as it appears to be reasonably
11 connected with the case.
12 I may exclude any evidence that I think
13 is not anything to do with the case. I might stop that.
14 And I will determine whether evidence is admissible and
15 I may take official notice of any documentations in the
16 applicant's industrial waste file.
17 MR. CAMARA: May I ask a question about
18 the scope of the hearing, sir?
19 HEARING OFFICER: May you ask what?
20 MR. CAMARA: A question about the scope
21 of the hearing.
22 HEARING OFFICER: Let me finish this one
23 and I'm sure you're going to have opportunity to ask the
24 questions.
25 MR. CAMARA: Yes, sir.

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1 HEARING OFFICER: I think the base is to
2 hear from both sides and the reason of the denying your
3 discharge permit. That will be the basis for this
4 hearing.
5 MR. CAMARA: Yes, sir.
6 HEARING OFFICER: Okay. And based on my
7 involvement, I have no prior knowledge of this case. So
8 I will listen and hopefully record the evidence,
9 exhibits that is needed. And once we are finished with
10 the hearing, I will provide the response to the records.
11 MR. CAMARA: Thank you, sir.
12 HEARING OFFICER: All right. Let's go
13 ahead and we have a court reporter here. She's
14 recording our testimony, our remarks. And I'm saying to
15 you the applicant or your rep, please state your name
16 and mailing address for the record.
17 MR. CAMARA: My name is Kiwi Camara. I'm
18 with the law firm of Camara & Sibley. We represent CES
19 Environmental Services, Incorporated. CES can be
20 reached through our law firm at 2339 University
21 Boulevard, Houston, Texas, 77005.
22 HEARING OFFICER: What's your
23 relationship with the company?
24 MR. CAMARA: I represent them. I'm a
25 lawyer and I represent CES. And with me are Robin

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1 Morris of the law firm of Crain, Caton & James,
2 Mr. Radford -- Kent Radford from my firm and Timothy
3 Nyberg from my firm.
4 HEARING OFFICER: Again, you received the
5 notice of this hearing yesterday I believe.
6 MR. CAMARA: Well, we agreed to this
7 hearing by phone and it was scheduled by mutual
8 agreement.
9 HEARING OFFICER: All right. Do y'all
10 have any witness for this hearing?
11 MR. CAMARA: We don't. We intend to
12 present procedural objections to this hearing. We
13 believe that it's unconstitutional under 42 United
14 States Code, Section 1983, which is why I wanted to ask
15 you whether that defense would be within the scope of
16 this hearing or not. But I can elaborate on that now or
17 when we have the opportunity.
18 HEARING OFFICER: I think when I get
19 opportunity to hear that, if there's a relationship with
20 the case, probably I will allow it.
21 MR. CAMARA: Okay. Thank you.
22 HEARING OFFICER: And any rep from the
23 Public Works & Engineering?
24 MS. PRICE: My name is Ceil Price. I'm
25 Senior Assistant City Attorney for the City of Houston.

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1 I represent the City of Houston in this matter.
2 Specifically, I represent the director of Public Works
3 and Engineering.
4 I would like with the permission of the
5 hearing officer to make a brief opening statement, and
6 then present the City's case, which will be primarily by
7 documents. And I've brought a set of documents for the
8 hearing officer and the court reporter as well for CES.
9 And with your permission, I will -- and before I begin,
10 I think it would be useful to introduce the other
11 parties representing the City.
12 This is James Cargas, also senior
13 assistant City attorney, and Mr. Walid Samarneh who is a
14 managing engineering in the Department of Public Works
15 and Engineering and Wastewater Operations. Mr. Samarneh
16 will be available if you have any questions.
17 MR. CAMARA: Ms. Price, would you mind
18 sharing the exhibits with us now?
19 MS. PRICE: Absolutely. No problem
20 whatsoever.
21 MR. CAMARA: Thank you.
22 MS. PRICE: What I'd first like to mark
23 is the affidavit of Clyde Smith, and that will be No. 1.
24 And what I would like to do is make my opening
25 statement. I'm going to read into the evidence the

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1 affidavit, and then I can go through these documents so
2 that you can kind of -- I hate to just dump the whole
3 load of them on you, but none of them should be
4 surprising to you.
5 MR. CAMARA: We'd actually like to have
6 them now, if you don't mind, and we'll just go through
7 them while you're speaking.
8 MS. PRICE: Okay.
9 MR. CAMARA: Thank you very much, ma'am.
10 HEARING OFFICER: That's entirely one set
11 exhibit; is that right?
12 MS. PRICE: No. This is a complete set,
13 so we'll walk through them so that they each have an
14 exhibit number. I think that will be most helpful.
15 My opening statement is just to remind
16 the parties present that the program under which CES
17 operates is not a new program. Congressmen did the
18 Federal Water Pollution Control Act in 1972, nearly 40
19 years ago. It created the NPDS system, National
20 Pollutant Discharge Elimination System, which prohibited
21 discharges from point sources unless there's a permit.
22 NPDS is codified at 33 USC 1342.
23 Specifically, Section B of that section allows states to
24 regulate the NPDS permit under certain very specific
25 conditions.
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1 City of Houston operates 39 wastewater
2 treatment plants and more than 400 lift stations
3 pursuant to permits that are delegated to TCEQ from the
4 EPA. There are some small elements of some of the
5 permits on some of the locations that are still
6 controlled by EPA, but the vast majority of the City's
7 permits are issued by TCEQ.
8 Industrial users of the publicly-owned
9 treatment works are allowed to discharge their waste to
10 the POTW through the provisions of 33 USC 1342(b)8,
11 which says that the administrator of EPA shall approve
12 that program -- that state program unless he determines
13 that adequate authority does not exist to ensure that
14 any permit for a discharge from a publicly-owned
15 treatment works includes conditions to require the
16 identification in terms of character and volume of
17 pollutants of any significant source, introducing
18 pollutants subject to pretreatment standards under
19 Section 1317(b) of this title into such works, and a
20 program to assure compliance with such pretreatment
21 standards by each source.
22 The statute goes on, but the relevant
23 part is that Congress has noted that one of the most
24 important parts of the program is identification of what
25 the pollutants are that are coming from an industrial

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1 users. City of Houston's permits that we have from TCEQ
2 and from EPA require us to have a pretreatment program.
3 Article 5 of Chapter 47 is that program. And to that
4 end, the documents that I have brought with me and would
5 like to introduce support the implementation of that
6 program sufficient to ensure that the City's own
7 wastewater treatment plants are in turn in compliance
8 with their own permits.
9 Exhibit No. 1 is the affidavit of Clyde
10 Smith. And with your indulgence, I'll read it into the
11 record. It's fairly brief. I will not read into the
12 record all of the other documents I've brought with me,
13 but I will walk through them and identify them by, you
14 know, sort of their general name.
15 MR. CAMARA: We appreciate that.
16 MS. PRICE: Yeah, we'll be here forever.
17 And the hearing officer has already indicated --
18 MR. CAMARA: That he needs to return to
19 his job.
20 MS. PRICE: -- that he needs to expedite
21 this hearing.
22 Mr. Smith has stated that as follows:
23 No. 1, I, Clyde Smith, am over the age of 21 years of
24 age, of sound mind and capable of making this affidavit.
25 No. 2, I am employed by the City of

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1 Houston Department of Public Works and Engineering as an
2 Environmental Investigator V and am personally
3 acquainted with the facts stated herein.
4 No. 3, CES Environmental Services, Inc.
5 is a waste management and disposal facility which must
6 operate by permit issued by the City of Houston. The
7 City of Houston has been monitoring this facility for
8 repeated environmental violations.
9 No. 4, CES has two industrial waste
10 permits for discharges of industrial waste to the City's
11 sewer. Permit No. 9558 was issued for discharges from a
12 centralized waste treatment operation. And Permit 6806
13 is for a tank wash or truck wash operation.
14 No. 5, Permit No. 9558 was reissued in
15 December of 2008. It expires in December of 2010. The
16 permit was amended in September of 2009 to remove the
17 requirement for daily in-house sampling and testing of
18 phenol. January 2009, the permit was amended to include
19 a Total Toxic Organic Endorsement, TTO, and removing
20 Endorsement P with its phenol discharge limit.
21 In December 2008, the permit was renewed
22 and reissued. Previously the permit was amended in
23 July 2007, May 2007 and January 2007 to conform to CES's
24 evolving operations as part of our routine review and
25 permit management.
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1 Permit No. 6806 was reissued January 2009
2 and expires January of 2011. Previously, that permit
3 was amended in October 2007, July 2007 to conform to
4 CES's evolving operation as part as our routine review
5 and permit management.
6 Paragraph 7, Between January of 2007,
7 January 2009 several amendments were made to CES's
8 permits adding or removing different permit endorsements
9 or requirements.
10 Paragraph 8, the facility has sample
11 points for monitoring discharges from the facility.
12 Sample Point No. 2 listed on Permit 9558 requires CES to
13 notify the City of Houston that it has water to be
14 sampled and requires CES to maintain a notification and
15 discharge record on site using a discharge log.
16 Paragraph 9, based on information that we
17 received and personal conversations with Clint Hopkins,
18 director of processing of CES, we believed that the
19 City's wastewater system was at risk from Sample Point
20 No. 1 discharge. As a result the City terminated CES's
21 sewer access because of CES's refusal to seal Sample
22 Point No. 1 which has no meter and no security.
23 Paragraph 10, CES is also noncompliant
24 with copper, zinc, TTO and categorical limits for its
25 daily maximum limits of some other organics.

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1 Paragraph 11, on October 6th, 2009,
2 compliance meeting was held at CES.
3 Paragraph 12, on October 7th, 2009, I had
4 a phone conversation with Clint Hopkins regarding
5 wastewater that is taken from the tank wash facilities
6 to the CWT facility.
7 Paragraph 13, on October 13th, 2009, a
8 follow-up letter was sent to CES requesting they seal
9 Sample Point No. 1, which is the sample point listed on
10 Industrial Waste Permit No. 6806.
11 Paragraph 14, on October 15th, 2009, CES
12 requested an extension to seal Sample Point No. 1 and to
13 perform self-monitoring for TTO.
14 Paragraph 15, on October 20th, 2009, City
15 denied their request for an extension.
16 Paragraph 16, of October 28th, 2009, a
17 field verification report was issued stating that there
18 were no plans to repipe at CES Walid Samarneh and I
19 spoke to Clint Hopkins who informed us that he had not
20 received any instructions to seal Sample Point No. 1.
21 Paragraph 17, on October 7th, 2009, the
22 City issued an administrative order requiring a
23 corrective action report and four days of sampling for
24 TTO compliance at Sample Point No. 5. This order was
25 based on three violations of TTO on July 21st,

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1 July 23rd, and September 2nd, 2009.
2 Paragraph 18, on October 23rd, 2009, CES
3 informed the City that their sampling equipment was not
4 functioning at Sample Point No. 5.
5 Paragraph No. 19, on October 28th, Walid
6 Samarneh and I visited CES and confirmed that no action
7 had been taken to comply with the outstanding
8 October 5th, 2009, and October 13th, 2009 orders. We
9 did not find any piping in place and no plans could be
10 produced showing plans were being made. Sample point
11 No. 1 had not been sealed.
12 Paragraph 20, on October 30th, 2009, CES
13 informed the City that their sampling equipment at
14 Sample Point No. 5 was still not functioning. CES also
15 informed the City that it would not be functioning until
16 November 9th, 2009, at the earliest.
17 Paragraph 21, additionally, CES has
18 outstanding notice of violations which were issued, and
19 included violations for illegal discharges.
20 This document is entered into the record
21 and is notarized. I would like to walk through the
22 other documents that I would like to have introduced.
23 And we're going to have to mark them differently.
24 MR. CAMARA: If I might interject, I read
25 in the Rules of Procedure -- I understand that we're not

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1 following the strict rules of evidence in this
2 proceeding, but I would like on the record that we
3 reserve all our rights to object to all evidence entered
4 here as in violation of the rules of evidence should
5 this matter ever been litigated in court.
6 MS. PRICE: Exhibit 1 is the Industrial
7 Wastewater Permit No. 9558, or a reasonable copy.
8 MS. CALABRESE: Excuse me. You offered
9 one as the affidavit, so that would have to be No. 2.
10 MS. PRICE: Thank you.
11 MS. CALABRESE: We're just trying to help
12 keep the record straight.
13 HEARING OFFICER: This is 2 according to
14 this list?
15 MS. PRICE: This is two, because one was
16 the affidavit. Exhibit 3 would be Industrial Wastewater
17 Permit No. 6806.
18 MR. CAMARA: May I ask who the gentlemen
19 are?
20 MS. PRICE: If you would identify
21 yourself for the court reporter.
22 MR. CHEATHAM: I'm Don Cheatham. I'm a
23 senior assistant City attorney with the City of Houston.
24 MR. SCHENK: I'm Larry Schenk. I'm a
25 senior assistant City attorney for the City of Houston.

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1 (Discussion off the record.)
2 MS. PRICE: We're back on the record.
3 This is Exhibit 4. Exhibit 5 is a letter from Clyde
4 Smith to Prabhaker Thangudu of CES granting an extension
5 of time for compliance with organics testing required by
6 the September 10th, 2009, NOV. We're going to be here a
7 long time if I do the summaries, but that's okay. We'll
8 move along.
9 Exhibit 6 is a letter dated October 5th,
10 which is an administrative order. This is over the
11 signature of Clyde Smith.
12 Exhibit 7 is investigation report by
13 Charles Graham and David Richards.
14 Exhibit 8, also dated October 7th, this
15 is an NOV requesting action -- an action report, testing
16 of BNA, and other things.
17 Exhibit 9 is a revised notice of
18 violation dated October 26th.
19 Exhibit 10, dated October 13th, is an
20 administrative order requiring a number of activities
21 from CES.
22 Exhibit 11 is a printed copy of an e-mail
23 that appears to be from Prabhaker Thangudu to Charles
24 Graham dated October 30th.
25 Exhibit 12 is a letter dated

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1 October 26th. This is a first notice requesting certain
2 composite samples of certain pollutants.
4 October 26th, from the City to CES.
5 Exhibit 14 is dated October 28th, 2009,
6 field verification report.
7 Exhibit 15 is a memo to the file dated
8 October 30th from Michael Marcotte the director of
9 public works.
11 October 31st, which is the termination letter to CES.
12 Exhibit 17 is a letter dated November 2nd
13 from Mr. Camara to Clyde Smith.
14 And the last exhibit from the City is
15 Exhibit 18 and it's a letter from myself to Mr. Camara
16 dated November 3rd. I have no further exhibits at this
17 time.
18 HEARING OFFICER: All right. Thank you
19 very much. I think we received enough exhibits.
20 MR. RADFORD: For our recordkeeping
21 purposes, the exhibit list is all in order; you just add
22 one to get the correct exhibit number?
23 MS. PRICE: Basically.
24 MR. CAMARA: Should we proceed?
25 HEARING OFFICER: Yeah, I think we can

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1 provide now that the City has presented their case and
2 exhibits. Now it's your chance.
3 MR. CAMARA: I hope you don't mind if I
4 roam a little bit. I kind of feel trapped here.
5 HEARING OFFICER: If you could stay close
6 by here so we can --
7 MR. CAMARA: Sure. First, I wanted to
8 apologize just for all the shuffling around of papers
9 that we had going on. We got the evidence that the City
10 is relying on only after walking into the room. I think
11 you heard our discussion with Ms. Price. We've had no
12 opportunity to review it except just now.
13 I think there's been a little bit of a
14 misleading picture created by the City about what the
15 purpose is of this hearing. So the City can use its
16 emergency powers under Ordinance 47-208(f) to shut down
17 wastewater service to CES without notice or any kind of
18 prior hearing.
19 The City is only allowed to shut down
20 wastewater service without notice or a hearing if the
21 director, Mr. Marcotte, finds that there is an eminent
22 danger of harm to either City employees or members of
23 the public, or that there's a likelihood that the City's
24 plant will be in violation of its state or federal
25 permits.
20
1 There is another way that the City can go
2 about terminating wastewater service, and that's by
3 giving ten days notice and then having a hearing where
4 we have an opportunity to see the City's allegations,
5 collect our evidence in an orderly fashion, and present
6 it to a hearing officer like yourself. Meanwhile, the
7 plant can continue to operate for those ten days and for
8 however long it takes to have the hearing.
9 So this is not an ordinary termination
10 hearing where the City gets to say that we violated a
11 permit or that we're discharging in excess of an
12 amendment to a permit or anything like that. The only
13 way the City can properly prevail at this hearing is if
14 it shows that it can satisfy the emergency conditions
15 under 47-208(f), which again, are eminent physical harm
16 to a City employee or a member of the public, or that
17 the City is being placed in jeopardy of violating its
18 state or federal permits.
19 And we would submit that none of the
20 argument or evidence that the City has just presented
21 comes anywhere near satisfying that emergency standard.
22 What they've shown you is some evidence, half the
23 picture, that we have violated some permit conditions.
24 But even if you believe everything
25 they've said, even if you believe that we violated

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1 various permit conditions -- we don't think we have, but
2 even if you believe it, that is not enough to qualify
3 for a shutdown without notice or prior hearing. It's
4 not enough to qualify for an emergency shutdown.
5 So we think and would submit that the
6 City has violated not only municipal ordinances in
7 trying to shut us down, but has denied us a
8 constitutional right known as procedural due process.
9 That right says that when the government,
10 whether the federal government, state government or a
11 municipal government, takes away a right, like our
12 permit right, it's got to give us prior notice and a
13 hearing so that we can offer evidence that we haven't,
14 in fact, violated those permits. If the government acts
15 without offering such prior notice or a hearing, then
16 it's violated our right under the 14th Amendment of the
17 United States Constitution.
18 There is also a statute -- 42 United
19 States Code, Section 1983 -- that makes it a violation
20 of federal law for a state or municipal officer to
21 deprive someone of their constitutional rights acting
22 under color of state law, which we contend is exactly
23 what has happened here.
24 So that right -- I don't -- feel free to
25 cut me off if I'm boring you with the legal arguments,

22
1 but that right has been explicated in a long series of
2 decisions by the United States Supreme Court and the
3 Court of Appeals for the Fifth Circuit, which is the
4 court of appeals that has jurisdiction over states,
5 including Texas.
6 Those cases -- Goldberg versus Kelly,
7 Fuentes versus Shevin, the list goes on and on -- say
8 that only in the starkest emergency circumstances can a
9 state or a municipal government deprive a party, like
10 CES, of a right without prior notice and a hearing.
11 So how can they do it? They can do it if
12 they give us notice and a hearing. And what kind of
13 notice and hearing, that's a close question. That's for
14 judges to the decide depending on the importance of the
15 right, the size of the threat, and the quality of the
16 evidence. So it may be that ten days notice and a
17 hearing like this would suffice or it may not be.
18 But what is perfectly clear under the
19 cases in the Constitution is that no notice and no
20 hearing at all do not satisfy those procedural due
21 process standards. And if you ask yourself why, it
22 makes perfect sense.
23 CES is a waste management and treatment
24 facility. We receive shipments from businesses all
25 throughout the area, including some very famous

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1 businesses, major oil companies like Kinder Morgan,
2 companies like Best Buy, companies like Anheuser Busch.
3 We treat their waste and we're one of the quit limited
4 set of plants with this capability in the Houston area.
5 If we're shut down, those customers have
6 to make arrangements to truck their waste elsewhere or
7 shut down their own industrial processes. So this is
8 not about the emergency no-notice shutdown of CES. This
9 is about emergency shutdown of a vital service that's
10 provided to companies operating in the Houston area.
11 And again, if they gave us ten days
12 notice, we could have told our customers, "Look, we need
13 to reroute these shipments, or we need to delay them, or
14 we need to take material that's already on site that we
15 would treat and make arrangements to put it somewhere
16 else."
17 Instead, when the City comes on
18 Halloween, on Saturday morning at a time when I believe
19 actually the City knew that the two principals of CES
20 were out of town -- one out of the country and one I
21 believe on the east coast on a religious retreat -- they
22 sent officials to come without notice, shut down the
23 facility on a weekend, and gave us no time to make those
24 kinds of alternative arrangements to contact our
25 customers, to handle the possible shutdown in some kind

24
1 of orderly fashion.
2 And can they do that? Yes. But only
3 under two limited conditions; the conditions set out in
4 47-208(f) where there's a threat of eminent harm to a
5 member of the public or City employee, or where there's
6 a likelihood that the City will violation its own
7 permits. And nothing that they have offered today
8 suggests that any of that is true.
9 Let me also explain another right the
10 City has violated is the right to engage in
11 cross-examination of witnesses. And cross-examination
12 is where I get to see who it is they're relying on to
13 prove their case and cross-examine them, and that is the
14 foundation of the American system of getting things out
15 through adversary hearings like this.
16 So let's see who they relied on. Because
17 Mr. Samarneh is here to answer questions and I
18 appreciate your being here and I will ask you some
19 questions. But Mr. Samarneh is not the person they're
20 relying on.
21 The first person they're relying on is
22 Mr. Marcotte, who is the director of the Public Works
23 and Engineering Department to the City of Houston. And
24 as I was explaining to you, Section 47-208(f) is
25 triggered only when Mr. Marcotte certifies that there's

25
1 that risk of eminent harm. And I don't know what
2 exhibit this is. Do you? The memorandum.
3 MS. PRICE: It is 15.
4 MR. CAMARA: So Exhibit 15 which they
5 game you is a memorandum from Mr. Marcotte that purports
6 to make that finding. But if you look at it, it doesn't
7 say that Mr. Marcotte himself is engaged in the
8 investigation. It says that he's relied on a briefing
9 by Ms. Susan Bandy, deputy director of the resource
10 management division, and Mr. Jun Chang, deputy director
11 of the public utility division, neither of whom is here.
12 So I cannot hear from them about what the
13 evidence was that they took to Mr. Marcotte to get him
14 to issue this certification. I can't ask them about
15 where they got that evidence. I can't ask them about
16 what questions Mr. Marcotte asked.
17 In other words, I have no way of
18 exploring at this hearing whether these findings were
19 justified or whether, as I think is quite possibly the
20 case, Mr. Marcotte was presented with a letter and
21 signed. I have no way of doing that because of their
22 denial of our right to cross-examination and our right
23 to see the basis of the findings.
24 Secondly, if you look at the letter, it
25 doesn't say why Mr. Marcotte thinks that there's an

26
1 immediate danger to the physical health of a City
2 employee or of a member of the public, and he doesn't
3 say why the City's permit parameters be violated.
4 That is, it just takes the text of a
5 statute, rewords it a little and regurgitates it in the
6 letter. It's the kind of form denial that you get from
7 your cell phone company when they're fighting with you
8 about a bill or you get from a bank. But it gives you
9 no idea what's actually going through Mr. Marcotte's
10 mind, if anything is going through it, and it gives us
11 no idea of what the basis is for those conclusions.
12 For example, if Mr. Marcotte had said
13 that CES had been caught releasing a certain chemical
14 and that chemical might have caused harm to people, and
15 that was the basis for his determine, if he had told us
16 that we could have come here with an expert chemist to
17 tell you either, no, we're not discharging that chemical
18 or, no, when that chemical is discharged it doesn't have
19 those effects, or whatever our response would be.
20 But because Mr. Marcotte has fully failed
21 to state the basis for his findings, we have no way of
22 doing that. So we come here, we get the evidence today,
23 we see the memo for the first time, we cannot question
24 the people who are listed in it or Mr. Marcotte, who
25 supposedly heard them. And even the memorandum itself,

27
1 even if you belief it, does not explain the basis for
2 making the necessary emergency findings under 47-208(f).
3 Next, the affidavit --
4 MS. PRICE: I would like to interject at
5 this point that Mr. Marcotte is available -- or shall
6 way say would have been available had we started on
7 time, but he has a meeting that began at 3:00 o'clock
8 with the mayor. But if you want to ask him questions,
9 he will make himself available.
10 MR. CAMARA: I would like to. I would
11 like on the record actually to request to question today
12 Ms. Susan Bandy, Mr. Jun Chang, Mr. Michael Marcotte,
13 Mr. Clyde Smith, and anyone else on whom Susan Bandy,
14 Jun Chang, Michael Marcotte have relied on in making
15 this determination. I believe that's my client's
16 constitutional right.
17 MS. PRICE: Well, Mr. Camara, I know that
18 you're making an extremely persuasive argument on the
19 constitutional basis --
20 MR. CAMARA: Thank you.
21 MS. PRICE: -- of the rights that you
22 believe that are owed to your client. But the scope of
23 this hearing, as I think our hearing officer stated, is
24 the termination of service.
25 MR. CAMARA: Yes. And I'm arguing --

28
1 MS. PRICE: And your constitutional
2 claims are more properly brought either in federal court
3 or in state court. This is an informal administrative
4 hearing.
5 MR. CAMARA: I'll be happy to do that if
6 you prefer. Would that be the appropriate procedure?
7 HEARING OFFICER: I believe so.
8 MR. CAMARA: Thank you. That actually is
9 the record I was trying to make, so thank you. I'll now
10 address the merit. So you understand that we have these
11 constitutional objections and we're not able to raise
12 them here, so I just wanted to make you aware of them,
13 but I'll talk about the merits, too.
14 And the merits are where it's important
15 that I be able to cross-exam these people. It's hard
16 for me to answer allegations in a letter that doesn't
17 explain what it is I'm trying to answer where I can't
18 question the people I need to question.
19 Now, second, if you look at the affidavit
20 of Clyde Smith --
21 HEARING OFFICER: I've been informed that
22 if you have requested any witnesses to be here prior to
23 this meeting?
24 MR. CAMARA: I haven't, no. And I'll
25 tell you why I haven't, actually. I haven't requested

29
1 these witnesses to be here because the City of Houston
2 has not given us these documents until we got here.
3 They've sent some of the notices of violation earlier,
4 but this memorandum, Exhibit 15 by Mr. Michael Marcotte,
5 we haven't seen this until we got here.
6 So again, we don't know what the basis
7 for this is and we didn't know until we read it that
8 Ms. Susan Bandy and Mr. Jun Chang were the people who
9 had briefed Mr. Marcotte. And I think you know how the
10 bureaucracy works here. It's unlikely that Mr. Marcotte
11 himself did the investigation. It was probably these
12 people who briefed him.
13 And I had no way of asking to see those
14 people because I didn't get this in time, which again
15 explains the kind of Kafkaesque quality of this hearing
16 where a company is summoned in to answer allegations
17 that have not been shown to it on three days notice
18 after its entire business has been shut down on
19 Halloween weekend. This is the problem with this
20 hearing.
21 HEARING OFFICER: Because of Halloween
22 weekend?
23 MR. CAMARA: Because of Halloween weekend
24 and he Kafkaesque nature of the hearing. And again, you
25 know, they can do this with ten days notice. So you

30
1 could rule, for example, that they just need to give us
2 ten days notice -- turn it on, give us ten days notice
3 and have a real hearing where I know the evidence, I can
4 question them, so on and so forth.
5 Let's go on and explore the evidence.
6 MS. PRICE: Well, you haven't presented
7 any evidence yet. So far you've made --
8 MR. CAMARA: I'm about to explore it.
9 MS. PRICE: -- some statements and --
10 MR. CAMARA: Well, it's informal. I
11 don't have to follow the rules of evidence.
12 MS. PRICE: That's correct. So as you've
13 stated that you did not get prior notice, in fact you --
14 your client did get prior notice.
15 MR. CAMARA: Did we get notice of
16 Mr. Marcotte's findings?
17 MS. PRICE: You got notice of the
18 termination.
19 MR. CAMARA: Yes, but we did not receive
20 Exhibit 15, did we?
21 MR. CARGAS: And where is that required
22 by statute ordinance?
23 MR. CAMARA: I'm just asking, was it sent
24 to us?
25 MS. PRICE: No.

31
1 MR. CAMARA: It wasn't sent to us. And
2 were we ever told that Ms. Susan Bandy or Mr. Jun Chang
3 were the people on whom Mr. Marcotte had relied?
4 MS. PRICE: No.
5 MR. CAMARA: That's all I'm saying. I'm
6 not saying --
7 MR. CARGAS: You were told that the
8 director had made a determination.
9 MR. CAMARA: Right, but I hadn't been
10 told --
11 MR. CARGAS: Go on the City's website and
12 you can find the name of the director.
13 MS. PRICE: Right.
14 MR. CAMARA: Yes. Well, let me make
15 clear what happened. The Ordinance 47-208(f) says the
16 director must make this determination. So I can tell
17 that by reading the ordinance. But did they give us
18 this? No. You just heard their answer. They did not
19 give us this.
20 Did they tell us the director had relied
21 on Ms. Susan Bandy or Mr. Jun Chang? No. They just
22 told you that they did not tell us that. They told us
23 that here in this room, and even this document does not
24 explain the basis for the findings.
25 They're going to try to tell you they've

32
1 given us notice, but they haven't. They have not.
2 They've sent notices of violation. They sent people
3 down on Halloween weekend to terminate our service, but
4 they did not ever send us this determination. If their
5 position is simply that we must know the determination
6 has been made because of the ordinance, yes.
7 So I can explore the evidence or I can
8 answer more questions, either way.
9 MS. PRICE: Well, you haven't entered any
10 evidence. I mean, so far the City has offered evidence.
11 MR. CAMARA: I haven't.
12 MS. PRICE: And I guess my question is,
13 are you planning to introduce evidence or are you going
14 to challenge the City's evidence?
15 MR. CAMARA: Well, I'm not going to
16 introduce evidence, because we're not following the
17 rules of evidence.
18 MS. PRICE: But I'm asking --
19 MR. CAMARA: I'm going to describe
20 evidence. I believe I've described some evidence and
21 I'm going to challenge the City's evidence. But let me
22 answer you straight up. The real answer is, I don't
23 think the City's evidence satisfies 47-208(f), so I'm
24 challenging the City's evidence. I'm going to say you
25 guys haven't met your burden for an emergency shutdown.

33
1 MS. PRICE: And I think that's --
2 MR. CARGAS: Before we go, why don't you
3 refute what the evidence he's misconstrued, then.
4 MS. PRICE: Right. Because the letter --
5 MR. CARGAS: And then you can misconstrue
6 some more.
7 MR. CAMARA: Sir, would it be more
8 convenient if I completed my presentation and they
9 respond? Or if we fight back and forth like this?
10 HEARING OFFICER: Let me hear what
11 they're talking about here in reference to this Exhibit
12 15.
13 MS. PRICE: Well, we really need to look
14 at Exhibit 16.
15 MR. CAMARA: What exhibit is that?
16 MS. PRICE: That is the letter dated
17 October 31 --
18 MR. CARGAS: It's the termination notice.
19 MS. PRICE: -- to Mr. Bowman. It's the
20 termination notice. And the language -- and what I did
21 not read into the record, and this might be an excellent
22 time to do so. And I don't want to enter it as an
23 exhibit, because it's the law, which is the language of
24 47-208, Subsection F.
25 And that language is, "If the director

34
1 determines that a discharge from an industrial user
2 causes, one, an immediate danger to the health of City
3 employees or the public or, two, a likelihood that the
4 City's treatment plant permit parameters, including
5 sludge, will be violated, then the department may after
6 prior notice immediately terminate water, wastewater
7 service, and provide a hearing as described herein
8 within three days of initial termination."
9 The letter dated October 31st, which has
10 been previously marked as Exhibit 16, indicates that it
11 was received at 11:00 o'clock on the 31st of
12 October 2009 --
13 MR. CARGAS: By Steve Strickler.
14 MS. PRICE: -- by Steve Strickler.
15 MR. CAMARA: Yes. It was handed to
16 Mr. Strickler on Halloween at 11:00 on Saturday.
17 MS. PRICE: Well, I think -- well, that's
18 absolutely correct.
19 MR. CAMARA: I'm sorry. I don't mean to
20 interrupt.
21 MR. CARGAS: So just in terms of did your
22 client get prior notice, yes, they did. This is prior
23 notice. Did they get the determination from the
24 director? Yes, they did get the determination from the
25 director. It's in the notice letter.

35
1 MS. PRICE: The second paragraph of the
2 letter, which is in evidence, is that it states that the
3 director has made a determination that discharge from
4 your facility causes immediate danger to the health of
5 City employees or the public, or a likelihood that the
6 City's treatment plant permit parameters will be
7 violated. You are hereby notified that your wastewater
8 service will be discontinued on the above-referenced
9 date for failure to comply with the City's wastewater
10 pretreatment program.
11 And that date, again, is on the 31st,
12 although it is my understanding that service was not
13 terminated until the following day, Sunday.
14 MR. CAMARA: It started that day and then
15 finished the next day.
16 MS. PRICE: Yeah, the 1st of November.
17 MR. CAMARA: Had to dig up the road
18 apparently. So if we can look at Exhibit 16 -- do you
19 have it in front of you?
20 HEARING OFFICER: Yes, I do.
21 MR. CAMARA: If you look at paragraph
22 two, that's what they've been talking about. It's
23 sentence two, starts over on the right-hand side. It
24 says, "Further, the Director of Public Works has made a
25 determination that discharge from your facility causes

36
1 an immediate danger to the health of City employees or
2 the public or a likelihood that the City's treatment
3 plant permit parameters have been violated."
4 So, yeah, that's a copy and paste from
5 the statute. That's what the statute says he has to
6 make a determination about. What they didn't give us is
7 what it is he thinks is dangerous or what it is he
8 thinks violates the parameter. They didn't give us the
9 basis for that finding.
10 So what they're asking us to do is come
11 in here blind and argue against something where we have
12 no idea what it says. I'm not disputing that we
13 received this letter. What I'm disputing is whether
14 this letter is sufficient. And then, when they say that
15 they gave us --
16 MR. RADFORD: Let me interject also. If
17 you take a close look at the letter, it says that
18 they've made a determination of one thing or they made a
19 determination of another thing or they made a
20 determination of the third thing. Even on the face of
21 the letter, you can't tell what the City's determination
22 is. It simply is a cut and paste. There's no -- and I
23 would argue that there's not a single bit of notice
24 there. We don't know why to this day the City shut us
25 down under the emergency power of 47-208(f).

37
1 MR. CAMARA: By the way, for the
2 record -- go ahead.
3 HEARING OFFICER: I was going to say that
4 based on this letter, it is evident that enough notices
5 were submitted in the past in violation of discharge
6 parameters.
7 MR. CAMARA: No, Your Honor. And this is
8 why we would think not. So it's true they sent us lots
9 of notices of violation, and we're working with them to
10 fix those. For example, one of them required testing
11 this Monday, Tuesday, Wednesday, and Thursday. But
12 that's not a proper basis for shutting us down.
13 If they want to shut us down for those
14 notices of violation, they have to give us ten days
15 notice and a chance to respond. They're not acting
16 under that section. That section is 47-208(a), I think.
17 They're acting under the emergency power of 208(f),
18 which requires eminent harm to someone.
19 And they could have told us. They could
20 have said, you know, Chemical X is causing harm and we
21 would have solved the problem. Or if we couldn't solve
22 the problem, we would have voluntarily shut down and we
23 would have given notice to our customers, we would have
24 made arrangements for the waste on site.
25 So they're not shutting us down because

38
1 of a violation. That's what they tried to confuse you
2 about when they talked about all these violations.
3 That's not the scope of this hearing. The scope of this
4 hearing is whether the emergency power was satisfied.
5 I'd also like to make another
6 objection --
7 MR. CARGAS: Sir, if I could ask a few
8 questions.
9 HEARING OFFICER: Please.
10 MR. CARGAS: Is your client sampling
11 equipment working for Sample Point No. 5.
12 MR. CAMARA: Yes. Actually, it just got
13 started I think five minutes ago fixed.
14 MR. CARGAS: Was it working last week
15 when this was shut down?
16 MR. CAMARA: No. It was down.
17 MR. CARGAS: And for how long had it been
18 down?
19 MR. CAMARA: I believe two weeks, but I
20 could be wrong.
21 MR. CARGAS: And that sampling equipment
22 was down for at least two week, I suspect it was down
23 longer. What basis do you have to know what it is
24 you're discharging into the City's system?
25 MR. CAMARA: We know what we're

39
1 processing. We know the results of those processes.
2 We've been engaged in the same processes for many, many
3 months. There's been no change in what we're doing.
4 There are lots of sampling records for those processes
5 from all the times during which the sampling point was
6 operational.
7 MR. CARGAS: So the same --
8 MR. CAMARA: The sampling point was
9 defective. We got notice of the defect from them and
10 we've corrected that problem. It's operational as of
11 today. And I told them that off the record. They're
12 trying to bring this little thing in right now, but I
13 told them it's working.
14 MR. CARGAS: So the same sampling process
15 that produced these other notice of violations is the
16 same process that's continuing. You are unable for most
17 of October to do any sampling and to tell us what it is
18 you're putting into our system.
19 Your client has informed us not of what
20 they're putting into our system when we asked them to
21 test it. Your client did not get independent laboratory
22 analysis. Your client did not get a new sampling piece
23 in place. They just said we can't -- our sampler is not
24 working and, oh, maybe by November 9 at the earliest we
25 might be able to get it fixed. Is that correct?

40
1 MR. CAMARA: I'm sorry. I forgot your
2 name.
3 MR. CARGAS: Jim Cargas.
4 MR. CAMARA: So Mr. Cargas is saying that
5 we didn't do any laboratory testing and we didn't get
6 the sampler fixed. Well, we got the sampler fixed
7 today, we've been over that.
8 And you know when we were supposed to do
9 the laboratory testing. We were supposed to do it
10 Monday, Tuesday, Wednesday, Thursday of this week. So
11 why didn't we do the laboratory testing that we had
12 agreed to, these notices of violation? Because they
13 shut us down. So there's no surprise that we haven't
14 done that laboratory testing --
15 MR. CARGAS: There wasn't other
16 laboratory testing to --
17 MR. CAMARA: -- and this, again, is an
18 example of how they're trying to twist this hearing. It
19 isn't about the notices of violation. It's not what
20 this is about. They could have acted to terminate our
21 permit because we have these notices of violation. They
22 could have done that.
23 They could have done it under 47-208(a)
24 with ten days notice so I can gather my evidence,
25 present witnesses, see what they're talking about, have

41
1 this happen in an orderly fashion, tell my customers
2 arrange for storage. But they didn't do that.
3 They acted under 47-208(f). So the
4 question is not whether we violated these notices,
5 whether they have some dispute about the sampling point.
6 The question is can they prove that there is eminent
7 harm to a person or to a City employee or whether
8 there's a likelihood that the plant parameters would be
9 violated.
10 I'd like to move on to the affidavits,
11 actually, because I think we're circling around here.
12 Would that be okay?
13 HEARING OFFICER: Any objection?
14 MR. CAMARA: Moving on.
15 MS. PRICE: Yeah.
16 MR. CAMARA: I would like to make one,
17 actually, other objection. I understand that the
18 procedures for this meeting have you, sir -- we very
19 much respect your time and I don't want this to be any
20 attack on you, but you are being advised today about
21 procedures by City attorneys and you've noticed
22 throughout this hearing those City attorneys have been
23 consulting with those City attorneys.
24 So this is not a hearing where,
25 respectfully, there is a judge who is not associated

42
1 with them. This is a hearing in front of a City
2 employee who's being advised by the very lawyers that
3 I'm arguing against. So I'd just like that recorded.
4 Now, the affidavit of Clyde Smith. So
5 this is their principle piece of evidence. They read it
6 into the record. They made a big deal out of it and
7 they walked through it.
8 Nowhere in the affidavit of Clyde Smith
9 does it say that toxins are being released which are
10 going to harm a member of the public or which are going
11 to harm a City employee or which are going to place the
12 plant in violation of its state or federal permits.
13 Doesn't say it. The one witness whose affidavit they've
14 given you cannot say the things they're trying to prove
15 under 47-208(f).
16 And if you look at this -- if you look at
17 paragraph nine, that's on page two here, says, "Based on
18 information that we received in conversations with Clint
19 Hopkins, a director of processing of CES, we believe
20 that the City's wastewater system was at risk from
21 Sample Point No. 1 discharge."
22 Now, that's the closest they come. It
23 doesn't say it's going to be in violation at permits.
24 It says it's at risk. No one knows really what that
25 means. But notice, it's says, "Based on information

43
1 that we received and conversations with Clint Hopkins."
2 So Clyde is not here. I can't ask him
3 what that information was. I can't find out what it is.
4 They don't tell us here. They just say based on
5 information received. So again, this is another example
6 they tell you the conclusion, but they don't tell you
7 how they got there, so there's no way to refute the
8 evidence in front of them.
9 Well, I'm going to wind up my
10 presentation, because I think it's just more of the
11 same. We could go through all those documents, and I
12 will if you'd like me to, but the documents show
13 permits, permit conditions, notices of violation, and
14 then negotiation between the City and Prabhaker
15 Thangudu, who's a CES employee who's in charge of
16 dealing with the wastewater division.
17 And they show some progress in those
18 negotiations. For example, they show that Monday,
19 Tuesday, Wednesday, Thursday this week we were supposed
20 to do the laboratory testing. One of them sets out a
21 three-month compliance program. Some of them state
22 arguments by us, like, we don't think this modification
23 is valid or we don't think this requirement is really
24 necessary.
25 There's that kind of ordinary back and

44
1 forth that you'd have between a regulated entity like us
2 and regulators like them, and some notices of
3 violations. Not denying that. All I'm saying is that
4 those notices of violations, those are outside the scope
5 of this hearing.
6 This hearing is about 47-208(f), whether
7 there's eminent harm to a person or City employee or a
8 likelihood that the City's plant is going to be put in
9 violation of state of federal law. And they simply
10 haven't shown that.
11 I would like to depose Mr. Samarneh on
12 the record. And again, I repeat my request to depose
13 all these other people. I don't know if any of them
14 will be available. I can pause now and get comments or
15 I can question Mr. Samarneh, whichever you would prefer.
16 HEARING OFFICER: Do y'all have anything
17 to counter?
18 MR. CAMARA: The other thing I'd point
19 out, there are no rules of evidence here, so I can
20 introduce what I couldn't ordinarily introduce.
21 We had settlement negotiations with these
22 guys this morning before we came here, and they said
23 that if we agreed to shut down Sample Point 1 -- let me
24 take a step pack.
25 Our facility has two sample points,

45
1 Sample Point 1 and Sample Point 5. Sample Point 5 is
2 the waste treatment facility. That's where stuff comes
3 in from Anheuser, we process it. And then, once it's
4 clean, we take the solids, put them in a landfill; take
5 the oils, reclaim them; take the waters and send them to
6 the sewer.
7 Then there's a separate facility which is
8 a tank wash. So the tankers that come in carrying the
9 stuff, after they're used, whether they're ours or other
10 people's, we clean them in the tank wash and discharge
11 that water into the sewer. So that's -- tank wash is
12 one, main facility is five.
13 What they're really after is No. 1. And
14 so this morning, we had settlement negotiations with
15 Ms. Price. And she said that if we were willing to
16 agree to shut down No. 1, the tank wash thing, then they
17 could agree to go forward on No. 5 if we repaired the
18 sampling point. So that wasn't very clear.
19 We had settlement negotiations and she
20 said if we agreed to shut down No. 1, don't contest it,
21 and then on No. 5, fix the sampling point, then the City
22 would restore service to No. 5.
23 Now, ask yourself, if they're really
24 claiming that there's eminent harm to people's health
25 and welfare or that the City's plant is likely to be

46
1 shut down, would they have engaged in those settlement
2 negotiations? Simply not.
3 They would have shut us down. They would
4 have attempted to prove their case. The very fact that
5 they're willing to negotiate over this stuff indicates
6 that it is not qualified under the emergency shutdown
7 condition.
8 MS. PRICE: I would like to point out
9 that in fact CES is shut down based on a determination
10 by the director that --
11 HEARING OFFICER: At this time.
12 MS. PRICE: At this time they are shut
13 down.
14 MR. CAMARA: Yeah. They cut us off on
15 Saturday.
16 MS. PRICE: They're physically -- City
17 representatives went out Sunday morning and physically
18 disconnected the pipe between Sample Point No. 1 and
19 the --
20 MR. CAMARA: Sewer.
21 MS. PRICE: -- the sewer -- the
22 connection to the main line of the sewer on Wayland.
23 MR. CAMARA: Turned off the power to the
24 lift system on part five.
25 MS. PRICE: Correct. So they are

47
1 physically shut down.
2 MR. CAMARA: And they were willing to
3 negotiate starting up.
4 MS. PRICE: And as Mr. Camara points out,
5 there have been settlement negotiations between CES and
6 the City that were instigated by CES. And it has been
7 the position of the City that -- and continues to be the
8 position of the City that we have a permit process in
9 place and industrial users are allowed to use our system
10 so long as they comply with federal, state and local
11 regulations.
12 And I will submit to you again,
13 Mr. Hearing Officer, that the primary intent of Congress
14 in setting up the system was requiring industrial users
15 to notify and give information to the control authority,
16 the publicly-owned treatment works, and it is relevant
17 what contaminants they are sending to us.
18 But the fact that an industrial user does
19 not know and cannot know, because it does not have any
20 sampling equipment that's working, would certainly be
21 one of the factors that a director would consider in
22 making a determination whether there is a likelihood
23 that a treatment plant's parameters would be violated.
24 So it is the -- I do not want you to be
25 left with the impression that the City is interested in

48
1 any -- we're interested in a variety of elements of
2 CES's operations. There are a variety of elements of
3 discharge parameters that apparently are somewhat
4 routinely being violated. And I don't know the reason
5 for that, but may be operational equipment, it may be --
6 we know that we've got at least one piece of equipment
7 that's broken.
8 But I think that for Mr. Camara to say
9 that we've got a piece of equipment that five minutes
10 after the hearing began is now working is sufficient to
11 overcome the director's determination, which is made in
12 part on his exercise of engineering judgment, that will
13 be one of the elements that you need to consider in
14 determining whether the City has met its burden as set
15 forth in the ordinance, which is part of the overarching
16 permit system established by Congress.
17 MR. NYBERG: The issue is the City has
18 presented no evidence that there was any change in
19 operations at CES during the two or three-week period of
20 a broken sample machine, if that's in fact what actually
21 happened. So that's being alleged that there was this
22 broken sample point or non-working sample point.
23 This entire industry is regulated based
24 on, you know, the predictive ability of sampling and
25 statistics. Unless there's evidence that there's -- and

49
1 I believe CES would be willing to state that there was,
2 in fact, no change in operation during that period.
3 Unless the City has evidence, then their claim appears
4 to be that a broken sampling point is sufficient basis
5 to invoke the emergency power, and I would submit that's
6 absurd.
7 MS. PRICE: I think we can respond to
8 that.
9 MR. CARGAS: So you're saying your client
10 is -- his operations going through I believe Sample
11 Point 1 is the truck wash, correct?
12 MR. CAMARA: One is the tank wash, yes.
13 MR. CARGAS: Okay. And that that tank
14 wash now is shut down because of what the Department of
15 Public Works --
16 MR. CAMARA: We shut it down on Friday in
17 response to your request that we shut it down, because
18 we're going to contest the modification for permit that
19 requires us to do TTO testing there. So I'll give you a
20 little more background.
21 MR. CARGAS: Let me follow this through.
22 MR. CAMARA: Sure.
23 MR. CARGAS: So because of the action
24 taken, disconnection of the pipe on Sunday, November 1,
25 that's the reason that you're truck wash is shut down --

50
1 tank wash?
2 MR. CAMARA: No. The reason our truck
3 wash -- tank wash is shut down is because the City tried
4 to impose an illegal modification to our contract --
5 sorry -- to our permit. We then engaged in back and
6 forth between Prabhaker Thangudu and Clyde Smith at the
7 City over that modification.
8 And then, in an attempt to work in good
9 faith with regulators like yourself, we tagged out that
10 building until such time as we could negotiate or
11 litigate, if necessary, whether or not that modification
12 was appropriate.
13 We shut it down on Friday because you
14 folks sent us a threatening letter earlier that week
15 saying that if we didn't shut it down on Friday you
16 would come down and shut off No. 1, which is the tank
17 wash, which is a limited part of our business. That had
18 nothing to do, of course, with No. 5, which is the
19 sampling point of the waste treatment happens.
20 MR. CARGAS: Let's focus on No. 1. So if
21 the City reconnects --
22 MR. CAMARA: No. 5.
23 MR. CARGAS: -- Sample Point No. 1, then
24 your tank wash would be up and running and that all
25 would be good?
51
1 MR. CAMARA: Well, we still have this
2 fight about whether your permit modification is good or
3 not. So I think at this point, because you guys have
4 shown this tendency to come down and shut down various
5 other things, what we would do is sue you for
6 declaratory judgment so we could get a neutral judge to
7 decide whether you're right about the modification --
8 MR. CARGAS: Which is what the parameters
9 are.
10 MR. CAMARA: -- or whether we're right
11 about the modification. We wouldn't want the City to
12 just act unilaterally on Halloween.
13 MR. CARGAS: I would like to enter into
14 evidence -- and I guess this would be Exhibit No. 19.
15 This is a letter dated October 27th from the Houston
16 fire marshal shutting down your tank wash because it
17 done not comply with electrical requirements which
18 should have been in place July 17. The fire marshal
19 granted several extensions, and by October, decided not
20 to grant anymore extensions.
21 And I will note also that at this tank
22 wash building on July 7, a CES employees was killed in
23 one of the most awful ways through an explosion and a
24 fire where he was thrown into the ground from a catwalk
25 and was burned about over 80 percent of his body.

52
1 So electrical issues in this building are
2 a very serious issue. CES has refused to make the
3 repairs with a licensed electrician, as required by the
4 fire marshal. And because of that, that's why the tank
5 wash is shut down right now, because of the fire
6 marshal, not because of what Public Works has done.
7 And I would offer you that perhaps their
8 prize of not being able to do business with the tank
9 wash because of what Public Works did are misleading,
10 sir.
11 MR. CAMARA: Sir, CES has shut down the
12 tank wash pursuant to that order as well as a
13 disagreement with them on Friday before they ever came
14 on Saturday. There was an unfortunate death at that
15 facility. It's in litigation right now. We think we
16 had nothing to do with that death. We think it was an
17 unfortunate accident. And, you know, we're working with
18 regulators to solve it.
19 The family of that decedent has sued us
20 and that's in the courts the way those things normally
21 are. We regret it, but it is not -- again, I repeat, it
22 is not the basis for the shutdown which is at issue here
23 today. The shutdown that's at issue here today is
24 whether 47-208(f) has been satisfied.
25 And all this talk about the fire marshal,

53
1 about the prior notices of violation, that I would
2 respectfully submit is an attempt to distract you from
3 the narrow issue which is at issue today. They can shut
4 us down for those other things. They can at least try
5 to, but they have to do it with notice and a hearing --
6 ten days notice and a hearing here where we have an
7 opportunity to marshal evidence. That's the narrow
8 point that I'm making.
9 MR. MORSE: Mr. Camara, I hate to see
10 apples and oranges mixed myself, in the sense that the
11 death Mr. Cargas has referred to on July 7, as I
12 understand the facts, had nothing to do with electrical
13 situations in buildings. The gentleman was cleaning out
14 a tanker truck himself, violated company safety rules,
15 and basically set off that explosion through some type
16 of spark related to his own activity.
17 It had nothing to do with the electrical
18 condition of the building, much less anything to do with
19 the wastewater treatment system. So we really are going
20 far afield and mixing apples and oranges about what
21 happened on July 7. I just wanted to state that for the
22 record.
23 MR. CAMARA: We're going there, because
24 there's no been evidence. Anyway, I think I am -- well,
25 I do want to depose these people, but I'm not sure if

54
1 we're boring you. I just don't want to keep you longer
2 if you don't find it helpful.
3 HEARING OFFICER: Go ahead and make your
4 point.
5 MR. CAMARA: I've made my argument. I
6 just want to get some information for the litigation
7 from Mr. Samarneh.
8 (Short break.)
9 MR. CAMARA: I'd just like to have it on
10 the record I intend to use this testimony in court, so I
11 don't want to impede your ability to cross-examine him.
12 So please feel free to do so. And off we go.
13 WALID Z. SAMARNEH,
14 having been first duly sworn, testified as follows:
15 EXAMINATION
16 BY MR. CAMARA:
17 Q. Have there been any violations recently of the
18 City's plant permit?
19 A. Yes, there has.
20 Q. And what violations were there?
21 A. The ammonia violation.
22 Q. And when was that violation?
23 A. The last one we had is the total for
24 September. September '09.
25 Q. September '09. Were there any violations in

55
1 October?
2 A. I haven't seen any.
3 Q. Would you be aware of any such violations if
4 they existed?
5 A. Yes. Would brought to my attention once we
6 get both analysis and results back.
7 Q. So it's safe to say that if you're not aware
8 of any violations in October, there weren't any
9 violations in October?
10 A. I cannot say that, because I haven't seen the
11 final monthly report.
12 Q. When do you get the final monthly report?
13 A. About within a few days.
14 Q. So no one could know if there are any
15 violations in October, because the report hasn't been
16 generated?
17 A. Well, what we see before we see a violation,
18 what we see, we see daily reports on ammonia violations
19 or ammonia peaks.
20 Q. And none of those ammonia peaks in October has
21 been a violation?
22 A. There have been ammonia peaks in October,
23 which could be potentially a violation -- result in a
24 monthly average violation.
25 Q. I see. So the permits says you have to have a

56
1 monthly average for ammonia?
2 A. The permit has daily maximum and has a monthly
3 average.
4 Q. Have you exceeded the daily maximum in October
5 for ammonia?
6 A. I cannot answer that.
7 Q. But you don't remember if you've ever done
8 that?
9 A. Correct.
10 Q. And you would know, right? Because you guys
11 take violations seriously.
12 A. Absolutely.
13 Q. So the last violation was in September. Have
14 you seen any daily violations in November?
15 A. No. We just started November.
16 Q. And we're talking about the Sims Bayou south
17 plant?
18 A. We're talking about the Sims Bayou facilities.
19 Q. Both south and north?
20 A. Yes.
21 Q. And those are the only facilities to which CES
22 discharges?
23 A. CES discharges, yes, to Sims Bayou south and
24 north. The plants are -- you can divert flows from
25 south to north and so on.

57
1 Q. And when we talk about these violations --
2 A. When we talk about violations we talk about
3 Sims Bayou north.
4 Q. Okay. What about Sims Bayou south? Have
5 there been any violations in October?
6 A. I'm not aware of any at this time.
7 Q. And again, you would see the daily reports?
8 A. Right.
9 Q. So you would know whether there were any
10 violations and you haven't seen any violations, correct?
11 A. Correct.
12 Q. And were there any violations at Sims Bayou
13 south in September?
14 A. I don't think so.
15 Q. Okay. Let's focus, then, on the ammonia
16 violations. You said there was ammonia violation in
17 September. What was the ammonia violation? You just
18 exceeded the monthly limit?
19 A. Yes.
20 Q. And there are daily --
21 A. And that because when you have peaks, as I
22 mentioned, even though you do not exceed a daily
23 maximum, but you can exceed the monthly average because
24 of those peaks.
25 MR. CAMARA: And here I just want to

58
1 explain for the Hearing Officer, the reason I'm asking
2 these questions is because, again, if you remember
3 47-208(f), one of the grounds is if we cause them to be
4 in a plant violation. That's why I'm doing this.
5 Q. (By Mr. Camara) Do you know what caused the
6 ammonia violations? Do you know what caused the
7 ammonia violations?
8 A. Usually if you have interference with the
9 treatment system.
10 Q. Okay.
11 A. Now, remember, wastewater treatment plants are
12 designed to treatment domestic wastewater, not
13 industrial waste water. So we rely on you and your
14 client to treat that water to a level where we can treat
15 it.
16 MR. CAMARA: Can we have the record
17 reflect that immediately before this answer, the witness
18 consulted with City attorney Ms. Ceil Price, and that
19 the words the witness used are almost literally the
20 words that Ms. Price used to me on a phone call earlier
21 today.
22 A. For the record, he's absolutely wrong.
23 Q. (By Mr. Camara) Okay. Anyway, so an ammonia
24 violation would happen if the bugs at the plant were
25 interfered with by some waste?

59
1 A. Correct.
2 Q. And have the bugs at the plant been interfered
3 with? Have you tested for that directly? Do you know
4 if the bugs at the plant are dying?
5 A. When you lose nitrifiers, that's when you --
6 when you lose nitrifiers, when the nitrifiers are not
7 doing their job, then that's when you have ammonia
8 violations.
9 Q. Okay. And what's a nitrifier?
10 A. It's a bug.
11 Q. And that's the bug that cleans up the waste,
12 just to put this in terms that the jury --
13 A. That's one of the bugs in the mix of things.
14 Q. What other bugs are there?
15 A. Well, different. I'm not going to specify
16 each one of them, but there's bugs in there that do
17 different things.
18 Q. But the one that the ammonia takes out are the
19 nitrifiers, correct? Okay. And have you been able
20 to -- so what kinds of waste would kill off the
21 nitrifier bug?
22 A. Most likely toxic waste.
23 Q. Is there any particular kind of toxic or
24 chemical waste that would kill off those bugs?
25 A. At times, if you remember when we -- the

60
1 phenol issues we have with CES.
2 Q. Right, back in --
3 A. We have plenty of violations because that
4 phenol, so phenol is one of those.
5 Q. Are there others besides phenol or is phenol
6 the only thing that kills off nitrates (sic)? I don't
7 really know that word. What is the word for the bug?
8 A. Nitrifiers.
9 Q. Nitrifiers?
10 THE REPORTER: Can you spell it for me?
11 MS. PRICE: I'm guessing it's
12 N-I-T-R-I-F-I-E-R-S.
13 Q. (By Mr. Camara) Do you know what -- so what
14 industrial waste would kill off nitrifiers?
15 A. I cannot say.
16 Q. You can't tell me? You don't know?
17 A. No. You know, a variety or combination.
18 Q. Do you know any of the ones that would kill
19 off nitrifiers?
20 A. A named one, phenol.
21 Q. Do you know any others?
22 A. Well, I'm sure there's -- the BNA list is from
23 here to there, so I'm sure these are in the regulations
24 and there's limits on them for a reason.
25 Q. There are many, many chemicals that would kill

61
1 nitrifiers?
2 A. Correct.
3 Q. And more than 100 you would say?
4 A. Possibly. You have to look at the BNA list.
5 Q. So you haven't been able to determine which
6 chemicals are killing off nitrifiers at the plant; is
7 that correct?
8 A. Not -- well, we do analyze for the influents
9 coming to the plant.
10 Q. Have you been able to identify which chemical
11 waste are killing off the nitrifiers?
12 A. No, but you see a combination of chemicals
13 coming into the plant.
14 Q. Sure. I understand that you do influent
15 testing.
16 A. The answer to your question is, no, I cannot
17 determine that.
18 Q. Okay. So since you don't know what's killing
19 off the nitrifiers, you certainly cannot conclude that
20 it's CES that's somehow killing off the nitrifiers,
21 right?
22 A. I can tell you it is industrial waste that is
23 killing the --
24 Q. Now, CES is not the only plant that feeds
25 into --
62
1 A. I agree with you, correct.
2 Q. In fact, about how many plants feed in?
3 A. How many industrial plants?
4 Q. Yeah, plants feed into Sims north and south?
5 A. I cannot tell you that.
6 Q. More than ten?
7 A. Probably not.
8 Q. More than five?
9 A. I can't tell you exactly, but we can get you
10 that number.
11 Q. Okay. Do you know whether CES represents a
12 large or a small part of the inflow? Is it more than
13 half? It's less than half, right?
14 A. I mean, you know what CES discharge daily.
15 Q. I actually don't. I don't know what portion
16 that is of what comes in at Sims. Do you know?
17 A. No.
18 Q. So you don't know what's killing the nitrates
19 (sic) because it could be a big list of anything --
20 A. Let me go back.
21 Q. Sure.
22 A. The Sims Bayou north, the flow varies between
23 4 to 10 million gallons per day.
24 Q. Okay.
25 A. So I think of a given day when your client

63
1 discharges close to a million gallons or a half million,
2 then you can see what the percentage is.
3 Q. Sure. So it's somewhere between, like, a
4 sixteenth and a fourth on a very high day.
5 A. Right.
6 Q. But the rest of it is made up by discharges
7 from other sources and you can't determine which
8 chemical is killing off the nitrates (sic) and you
9 certainly can't trace that chemical to CES since you
10 don't know what it is.
11 So let me ask a different set of questions.
12 Are you aware of any discharge at CES that poses an
13 eminent threat to human life or to the welfare of a City
14 employee?
15 A. I can tell you when an operator calls me and
16 say, "My ammonia is going out the roof or peaking," and
17 as those employees work around the plant, they
18 experience watery eyes or burning in the eyes or you can
19 smell that chemical smell. So that's the feedback I get
20 from operation folks.
21 Q. Right. These are employees at the Sims City
22 plant?
23 A. Correct.
24 Q. They're complaining of watery eyes and other
25 problems because of high ammonia?

64
1 A. No, not high ammonia.
2 Q. Because of what?
3 A. Because of some chemical that's coming into
4 the plant.
5 Q. Okay. Because of chemicals that are coming
6 into the plant, they complain of watery eyes.
7 A. Correct.
8 Q. Do they have other symptoms besides watery
9 eyes?
10 A. Sometimes burning, sometimes the smell. You
11 can smell the difference between a wastewater treatment
12 plant normally running and one that has a slug of
13 pollutants coming in that's not supposed to be there.
14 Q. So employees at the Sims plant have complained
15 to you about watery eyes and a bad smell; is that
16 correct?
17 A. That's one of the symptoms we see when
18 industrial waste come into the plant, yes.
19 Q. Have they complained to you about any other
20 symptoms besides a bad smell and runny eyes?
21 A. Sometimes you cannot work around those
22 conditions.
23 Q. Sure. But the only complaints they've made
24 are runny eyes and a bad smell; is that correct?
25 A. Bad smell, correct.

65
1 Q. Okay. And runny eyes and bad smell are
2 caused, you say, by pollutants coming into the plant?
3 A. And burning eyes, yes.
4 Q. Burning eyes, okay. And those two symptoms
5 are caused by pollutants coming into the plant; is that
6 right?
7 A. I would venture to say when you have
8 non-domestic wastewater coming into the plant -- because
9 we have 39 plants and we know what we get when we have
10 non -- when we have domestic and nondomestic wastewater
11 coming to the plant.
12 Q. So you know that it's industrial waste that's
13 causing the burning eyes and the bad smell, right?
14 A. According to them, yes.
15 Q. Yes, according to the --
16 A. Operation staff.
17 Q. Okay. And do you know anything more specific
18 than that? Do you know which industrial wastes would
19 cause burning eyes or bad smell?
20 A. No.
21 Q. Okay. And since you don't know which
22 industrial waste, you certainly can't say that there are
23 industrial waste coming from CES, can you?
24 A. No. There is a service area that CES is
25 contributor to.
66
1 Q. Right. So you know that it's industrial
2 waste --
3 A. So your client is contributing to whatever we
4 have.
5 Q. Sure. The industrial waste is coming from a
6 group of providers, not just CES?
7 A. Correct.
8 Q. And you know that it's something in that
9 industrial waste that causes the burning and the bad
10 odor, but you don't know what. And so you certainly --
11 A. Given your client is the one with the
12 violations and not the others.
13 Q. Right. So the basis for your conclusion that
14 CES is causing burning eyes and an odor is that we have
15 some prior violations?
16 A. I would suggest to you that you go to the
17 corner of Wayland and Gray and pop up the manhole and
18 see what your client is discharging. Or go to Sample
19 Point No. 5 and pop up the manhole and look inside the
20 Sample No. 5 and see what client is discharging. Then
21 maybe you understand what we're talking about.
22 Q. Let me dive into that some more, because I've
23 actually -- I have seen some of the stuff they
24 discharge. What's the difference between CES's -- well,
25 do you know which other discharges discharge into Sims

67
1 north and south? Can you name one of them?
2 A. Probably Oxid is one.
3 Q. Is Marichem one?
4 A. I'm not sure.
5 Q. The one you named is Oxid?
6 A. Oxid.
7 Q. Do you know any others?
8 A. No.
9 Q. What's the difference between the waste that
10 Oxid generates and the waste that CES generates?
11 A. You take all kind of waste, you wash all kind
12 of tank trucks that has been hauling multiple chemicals.
13 Q. Right.
14 A. I think even CES themselves don't know
15 sometimes.
16 Q. We do, actually. We have this thing called a
17 Waste Data Information Sheet that tells us what it is
18 and what procedures to follow.
19 A. I've been to the lab and I've seen.
20 MS. PRICE: At some point we're getting
21 somewhat far afield.
22 MR. CAMARA: Sure. The hearing officer
23 is free the cut me off at any time.
24 MS. PRICE: Exactly. And I would suggest
25 that if you would like to get more information about

68
1 plant operations, that we would be happy to provide an
2 operator or a manager at the Sims plant.
3 MR. CAMARA: Let me just -- I appreciate
4 that.
5 MS. PRICE: And if that is what the
6 question is, because I think --
7 MR. CAMARA: I would like to get that
8 person, but the point of my questioning here is to go to
9 the eminent harm to City employees. Remember, those are
10 the three things. And I think I've shown that they
11 haven't shown eminent physical harm to City employees.
12 The other thing I point out is, again,
13 notice in my questioning here, I've dug out some links,
14 right? These people who complain about the burning eyes
15 and what not. And I didn't find that out until right
16 now. And then I'm told there are these operators who
17 can tell me about it, but I didn't find that out until
18 right now.
19 And then there's the suggestion that we
20 continue the hearing or have another time when I can
21 question these people. Meanwhile, my client's plant is
22 shut down. Our business is shut down. There are more
23 than 70 employees there who are going to have to be
24 terminated if our business can't operate. There are
25 people who are sending waste to us every day who can't

69
1 continue to do it. There are wastes on site that can't
2 be processed, other arrangements have to be made, and
3 I'm told that I need to wait while we get the correct
4 people in here.
5 That's why there's a notice period, the
6 way you're supposed to do this. You give notice, you
7 wait ten days, everyone marshals their evidence.
8 Meanwhile, operations continue until they can prove
9 their case. They don't get to do this where I come in
10 here and I have to disprove the case on the fly, even
11 though, frankly, I've done that.
12 HEARING OFFICER: I think you made your
13 point regarding the violations and giving you the
14 opportunity ten days no notice to provide the evidence.
15 MR. CAMARA: Well, I don't want to take
16 up more -- go ahead.
17 HEARING OFFICER: And my suggestion would
18 be if additional information or evidence is required, in
19 addition to employees who are complaining about those
20 symptoms. And also, the other industrial waste who are
21 contributing to the system, if they can be identified
22 for further, you know, discussion.
23 MR. CAMARA: I'd like to do that, but I
24 would ask, Your Honor, to basically require them to go
25 through that process where they give us notice, but let

70
1 us operate. Because that's going to take some time,
2 right? I have to depose these people. I have to depose
3 the operations managers. I have to depose people at
4 these other plants to see whether it's their waste
5 that's causing it. Meanwhile, we should get to operate,
6 right?
7 Then we can have a real hearing where I
8 have my witnesses, I know what's going on; they have
9 their witnesses; we've deposed them out of court; we
10 give an orderly presentation to a federal judge or to a
11 hearing officer like you; and then a decision is made.
12 What I'm asking you to do is just to say
13 that the emergency shutdown was inappropriate. And if
14 you've listened to the testimony of their only witness,
15 he says with respect to plant violations, can he say
16 that CES caused those ammonia violations? No. Can he
17 say that CES caused the burning in the eyes and the
18 odor? No.
19 Frankly, it's not clear to me that
20 burning in the eyes and an odor is a sufficient kind of
21 harm to shut someone down. That seems to me the sort of
22 thing that happens at waste management plants. But even
23 if it is a sufficient harm, he cannot say today that
24 it's us who caused it, and that means that they can't
25 satisfy their burden under 47-208.

71
1 I don't want to take more of your time,
2 so I'll stop for now. I will say that I would like the
3 right to depose all these other people, but I think on
4 the evidence that's been presented by the City today
5 it's clear that an emergency shutdown is not
6 appropriate. Thank you, Your Honor.
7 MR. NYBERG: Kiwi, before you give up the
8 witness, maybe want to bring up one point --
9 MR. CAMARA: Sure.
10 MR. NYBERG: -- for you to consider. I
11 don't think we have to -- we haven't had time to bring
12 in an experts, so in one sense we really are kind of
13 throwing ourselves out there. But we do have what the
14 City has proposed are the violations and maybe it's a
15 fair presumption that we're not violating the permit
16 that the chemicals would not be causing the symptoms.
17 We know there's four of them. Robin has
18 the list and it may be worthwhile looking -- getting a
19 little testimony on whether the specific chemicals that
20 have been cited by the City as in violation of the
21 permit, whether they could at all be related to the
22 issues that you're saying created a sense of harm at the
23 plant. I know I have right here copper and zinc, so
24 those would be the first two.
25 Q. (By Mr. Camara) Does copper in the plant

72
1 cause burning of the eyes?
2 A. I'm not sure.
3 Q. Does copper cause a bad odor?
4 A. It depends on what form it comes in. I'm not
5 sure.
6 Q. Does zinc cause burning of the eyes?
7 A. Are you talking about the excessive violation
8 of zinc in your permit?
9 Q. Yeah, you cited us for --
10 A. Yeah, because you're exceeding your permit.
11 Q. Yeah. Does zinc, that you say we exceeded the
12 permit by, does that cause burning of the eyes?
13 A. Well, I'm not an expert on that, so I cannot
14 answer your question.
15 MR. CAMARA: What were the other things.
16 MR. NYBERG: Robin has the list.
17 Q. (By Mr. Camara) Does trichlorophenol cause
18 burning of the eyes? You don't know?
19 A. No.
20 Q. No, it doesn't or, no, you don't know?
21 A. I don't know the answer.
22 Q. Does o-cresol cause burning of the eyes?
23 A. Again, I don't know the answer.
24 Q. Does p-cresol cause burning of the eyes?
25 A. Are these the things cited in your effluent?

73
1 Q. Yeah. September 10 NOV.
2 A. So these are these?
3 Q. What's that?
4 A. These are violations of your permit, correct?
5 Q. No. These are alleged violations of our
6 permit.
7 A. Okay.
8 Q. So does p-cresol cause burning of the eyes, do
9 you know?
10 A. I don't know the answer to that.
11 MR. CAMARA: So the specific things they
12 cited us for, their witness can't say whether those
13 cause physical symptoms in any way. I've laid out my
14 argument, so I'm done. Thank you very much for your
15 time, Mr. Samarneh.
16 HEARING OFFICER: Cross-exam.
17 EXAMINATION
18 BY MS. PRICE:
19 Q. I would like to ask Mr. Samarneh if he is
20 trained as a toxicologist.
21 A. No, I'm not.
22 Q. Are you trained in industrial hygiene?
23 A. No, I'm not.
24 Q. Are you a medical professional?
25 A. No.
74
1 Q. Are you a professional engineer registered in
2 the State of Texas?
3 A. Yes, I am.
4 Q. Do you know what the procedure is at the Sims
5 Bayou, either north or south plant, if an operator
6 experiences physical discomfort during the course of
7 their day? Do you know what the procedure is to report
8 that physical discomfort?
9 A. No, I don't.
10 Q. Do you know whether there may be another
11 department, for example, human resources, that there may
12 in fact be other protocols that you're unaware of?
13 A. Could be.
14 Q. We did not get into the report exactly what
15 Mr. Samarneh's responsibilities are. And would you
16 share those with us for the record?
17 A. For the record, my area of responsibility is
18 the regulatory compliance for all the wastewater
19 treatment plants. And also, I oversee the wastewater
20 laboratory and the industrial pretreatment program.
21 Q. How long have you been employed at the City?
22 A. Three and a half years.
23 Q. Have you engaged in any conversations with
24 regulators either from TCEQ or the Environmental
25 Protection Agency concerning violations at any of the

75
1 City's wastewater treatment plants?
2 A. Yes, I have. I am the liaison between
3 wastewater operation and the regulatory agencies.
4 Q. Do you know whether the City has had violation
5 at any of its plants?
6 A. Yes, I do.
7 Q. Do you know whether we are -- whether the
8 City -- let me rephrase that.
9 Do you know whether either Almeda Sims, Sims
10 north or Sims south are currently experiencing either
11 excursions or in violation of any of the terms of our
12 permits?
13 A. As I mentioned, we had the violation at Sims
14 Bayou north in September. September '09.
15 Q. Are you in any kind of discussion with -- is
16 that a TCEQ permit or EPA permit?
17 A. That's a dual permit.
18 Q. Are you in any kind of conversations with TCEQ
19 regional or headquarter staff on how the City proposes
20 to resolve those violations?
21 A. The procedure is whenever we have an effluent
22 violation, a noncompliance notification has to be
23 submitted to the state. And we usually investigate what
24 causes these violations and we submit a notification to
25 the state explaining to them what might be the cause and

76
1 what kind of remedy we're undertaking to fix the
2 problem.
3 Q. Do you know how many industrial customers are
4 upstream of CES's discharge point?
5 A. No, I do not.
6 Q. How many industrial customers -- and I think
7 Mr. Camara may have asked this question. You don't know
8 how many industrial users we have discharging into that
9 plant?
10 A. But that's easy to find.
11 Q. Okay. We just don't know today.
12 MS. PRICE: I don't have any further
13 questions.
14 MR. CAMARA: I think Robin had a few.
15 MR. MORSE: Just to clarify, if I may.
16 HEARING OFFICER: Yes, please.
17 MR. MORSE: For the record, I'm Robin
18 Morse.
19 EXAMINATION
20 BY MR. MORSE:
21 Q. You indicated Mr. Samarneh that when you have
22 a violation like you said you had in September for
23 ammonia, the procedure is to investigate the cause of
24 that upset, correct?
25 A. Correct.
77
1 Q. Did you do so with regard to the September
2 issue for ammonia?
3 A. Actually, September has several peaks, as I
4 mentioned to Mr. Camara, of ammonia. And usually what
5 we do is we pull an influent sample and try to analyze
6 what's coming with the influent. However, what happens
7 usually is when a slug come in or pollutant, by the time
8 you analyze it, it's already gone through and you see
9 the effect at the effluent side of the process. So
10 unless, you know, you have prior knowledge of what's
11 coming in, there's no way you can prevent it.
12 Q. But the standard procedure is to at least take
13 a sample of the influent to see if you can identify it
14 as an ongoing influent problem?
15 A. Correct. We usually -- especially for this
16 plant, we keep an influent sample for the previous two
17 or three days. So just in case we experience something,
18 we can go back and take a look, see what hit the plant.
19 Q. When you say this plant, you're talking about
20 the Sims plant?
21 A. Correct.
22 Q. Okay. So, in fact, you take regular samples
23 in case you do have a problem. Did you do so in
24 September?
25 A. I believe we may have some.

78
1 Q. And did you identify the nature of the
2 chemical upset?
3 A. I haven't seen the reports, but -- I haven't
4 seen the analysis yet.
5 Q. Okay. But that's something that would have
6 been available to the City prior to the time that CES
7 was shut down. In other words, you had that data
8 available back in September?
9 A. What we do is we keep these influent samples
10 preserved and we pull them out in case we see an issue
11 that we need investigate.
12 Q. But you knew you had a problem in September?
13 A. As I said, you've seen peaks, but not
14 necessarily violating the daily maximum limit, but those
15 peaks add up to an average monthly violation.
16 Q. You have a 30-day average?
17 A. Correct.
18 Q. Both pounds and concentration?
19 A. Correct.
20 Q. Do you know which --
21 A. Concentration.
22 Q. Just concentration. So the pounds limits were
23 in compliance throughout that time period?
24 A. Correct.
25 Q. And in fact, isn't it true for the Sims Bayou

79
1 plant for the last three plus years, you've been in
2 compliance with your pounds per days limits for ammonia
3 nitrogen?
4 A. Yeah, but you can look it up and see how many
5 times I've been in violation of my daily maximum and
6 monthly average, and you can count those if you want to.
7 They are public record.
8 Q. In terms of pounds per day, you're saying --
9 A. I'm saying concentrations -- monthly daily
10 average concentrations.
11 Q. Okay. And is it true, sir, that prior to this
12 September issue that you've identified, that was a
13 concentration problem?
14 A. Correct.
15 Q. That dating all the way back to a year ago
16 that the City was in compliance with its concentration
17 limits as well for ammonia nitrogen?
18 A. A year ago meaning what?
19 Q. October of '08. You may not know.
20 MS. PRICE: He -- yeah.
21 Q. (By Mr. Morse) Are you familiar with the --
22 MR. CAMARA: Would you answer actually,
23 just for the record, if you don't know.
24 HEARING OFFICER: Are you looking for
25 that answer?
80
1 A. I'm just looking. Just give me a minute.
2 Would you please restate your question?
3 Q. (By Mr. Morse) Yes, sir. Isn't it true that
4 at least up until this issue you identified in
5 September of '09, that for the prior year all the way
6 back to October of '08, that as far as what is
7 reporting to the state and on through -- gets in --
8 there's an EPA database, is there not, that you can
9 check on plants and how they're doing under the NPDS
10 program?
11 A. I'm sure there is one, but we have --
12 Q. Are you familiar with the EPA Echo database
13 where you can go in and look at certain permits and look
14 at their parameters and their permits and see whether or
15 not they're meeting their requirements on a monthly
16 basis over a period of time?
17 A. I haven't been to that particular website.
18 Q. Well, isn't one of the points of making
19 discharge monitoring reports, that that information
20 would be available to the regulators both at the state
21 and federal level and to the general public?
22 A. Correct. We do submit noncompliances and DMRs
23 on a monthly basis, so they have that information.
24 Q. Well, I guess my question is to you -- and
25 I've gone in and tried to pull that data concerning the

81
1 Sims plant. And I'll represent to you, and if you think
2 I'm wrong, you can state on the record. But I represent
3 to you that I don't see anything in the way of ammonia
4 nitrogen problems dating back to October of '08.
5 A. Is that convenient --
6 Q. Or concentration.
7 A. Is that a convenient date to pick?
8 Q. Well, I'll be happy to share the data that I
9 have in front of me.
10 A. Maybe you want to go back a little farther.
11 Q. We can go back, but my point is the City has
12 made a determination that there was some eminent threat
13 that had developed recently, apparently, that had to --
14 or resulted in the decision to cut off service without a
15 ten-day hearing. Made that decision, right? And isn't
16 it true that that was made because of the sampling
17 problem as opposed to any actual impact or upset at the
18 plant?
19 MS. PRICE: If you know.
20 Q. (By Mr. Morse) If you know.
21 A. I do not know.
22 Q. And the City has the ability to collect
23 samples on its own immediately outside the CES facility
24 and has done so in the past, has it not?
25 A. Are you talking Sample 1 or 5?

82
1 Q. Either or both.
2 A. Sample 5, correct. We have a sampling point
3 that we can sample on our own.
4 Q. And when you suspected or you experienced this
5 problem --
6 A. However, Sample No. 1 is inside CES facility
7 and we cannot -- that sampling point, we have to gain
8 access to CES to get to it.
9 Q. And you can get that access upon request?
10 A. Correct.
11 Q. And you can also sample in a downhole manhole
12 between the point of discharge and the Sims plant
13 farther downstream if you want?
14 A. There's a manhole right at the corner Wayland
15 and Gray. But also, I think that connect to some other
16 flow coming in, so I don't know how representative the
17 sample is.
18 Q. And when this ammonia issue came up in
19 September, did the City try and collect samples in or
20 around the CES plant to determine whether there was
21 anything in the CES effluent that was contributing to
22 that ammonia issue?
23 A. Let me be honest with you. Whenever we have
24 an issue, we do not pick on one certain company. I
25 mean, I do not pick CES to go and sample. I look at the

83
1 area -- the service area as to who could potentially
2 impact the plant.
3 Q. But you chose to shut down CES.
4 A. I didn't choose to shut down CES. CES chose
5 not to comply with the directives.
6 Q. And again, the directive had to -- if you look
7 at the exhibits, the October correspondence, that was
8 because of the failure to get the sampler in working
9 order on Sampling Point No. 5?
10 A. Let's go back. I mean, you've got to look at
11 your internal operation between your truck washing and
12 your CWT, okay. When you start mixing and matching
13 between two permits, two different categories, then
14 that's a concern for everybody.
15 Q. That may be a concern, but I haven't seen any
16 evidence today that that's happened at CES.
17 A. Well, actually, CES employees informed me in
18 my presence that they take water from the truck wash and
19 profile and manifest it into the CWT facility, and that
20 can't be done.
21 Q. Why is that?
22 A. Because you have to -- CWT has different regs
23 and you have to have it manifested, you have to know
24 what you're putting into one place. Most of that water
25 is used for equalization. So you're taking water from

84
1 the truck wash into CWT and profile without any
2 analysis.
3 MR. CAMARA: Who told you that?
4 A. One of your employees.
5 MR. CAMARA: Who?
6 A. Clint Hopkins.
7 MR. CAMARA: When?
8 A. When I visited that --
9 MR. CAMARA: On Saturday?
10 A. No, no, no.
11 MR. CAMARA: Sorry. When?
12 A. September -- it's one of our notes.
13 Q. (By Mr. Morse) Are you aware of any
14 problem -- you mentioned September and ammonia. The
15 other parameters in the plant, they were in compliance.
16 It was only the ammonia limit that you had a problem
17 with?
18 A. Correct.
19 Q. And in October, do you know whether you had
20 any unusual spikes or violations in October?
21 A. The facility gets samples on a daily basis and
22 there's a daily report that comes up, so I cannot recall
23 that every day what's the ammonia level, whether there's
24 spikes in the ammonia.
25 Q. I guess the question I basically had was

85
1 whether you had an ammonia problem right up until the
2 time that service was discontinued or cut off on
3 Halloween, which is at the end of the full month of
4 October, after -- more than 30 days after the ammonia
5 issue that you testified to in September.
6 A. Again, I'm not sure how many spikes I have,
7 which may not be a violation, so I cannot have that
8 information handy.
9 Q. And is it true, sir, that you did not rule out
10 that other industrial sources in the system had some
11 contributory effect on whatever the issue was in
12 September? City hadn't made that determination at this
13 point, is that a fair statement?
14 A. As I said, we usually look at the influent to
15 the plant, so that not could be -- could be reason from
16 different places.
17 Q. And the relative concentrations that we're
18 talking at CES, I think they were cresol and another
19 chemical mentioned in the September 10 letter, which is
20 Exhibit 4. Do you know what the approximate
21 concentrations at CES were?
22 A. No, sir, I don't.
23 Q. The September 10 letter, Exhibit 4, do you
24 have that in front of you, sir?
25 A. Yeah, I see it.

86
1 Q. So we have 2, 4, 6 trichlorophenol at 0.98
2 milligrams per liter, that's less than a part per
3 million. A milligram per liter is a part per million?
4 A. Correct.
5 Q. So approximately one part per million. And
6 then we have o-cresol at 0.609 parts per million or
7 milligrams per liter and p-cresol at 1.179 milligrams
8 per liter. Did I read that correctly?
9 A. Correct.
10 Q. Do you have any idea what those
11 concentrations -- how they would dilute in the system
12 before they got all the way to the Sims plant, or what
13 you would expect to show up as it combined with other
14 waste flows in the system?
15 A. These are your discharge. These are
16 concentration --
17 Q. As laid out in the NOV of September 10.
18 A. Correct. These are your exceedance of your
19 own permit. What does this have to do with the Sims
20 Bayou?
21 Q. That's what the alleged concentrations were.
22 My question -- again, it gets back to whether these
23 types of concentrations would be causative as far as
24 creating upset or harm to the City's Sims' plants.
25 A. I cannot answer that question. However, you

87
1 have a permit and you have limits that it's supposed to
2 meet. I mean, that's part of your permit requirement
3 and that's part of your contract with the City, so --
4 Q. I understand that. But would you agree that
5 not every permit exceedance amounts to an eminent and
6 substantial hazard?
7 A. I cannot answer that question.
8 Q. And would you say that many of your industrial
9 customers have occasional exceedances?
10 A. Possibly.
11 Q. And do you know in the last year, aside from
12 CES, have you cut off service to other industrial
13 services -- or sources, I'm sorry.
14 A. I don't know.
15 MR. CAMARA: I think we're done.
16 HEARING OFFICER: Done?
17 MR. CAMARA: Yes.
18 HEARING OFFICER: Any question for the
19 witness?
20 MS. PRICE: One -- a couple.
21 FURTHER EXAMINATION
22 BY MS. PRICE:
23 Q. I think there was a line of questions about
24 how many other industrial users there are that -- and I
25 believe that you stated that you didn't know the precise
88
1 number.
2 A. But we can get that.
3 Q. Right. My question for you is, do you know
4 whether there are other industrial users that discharge
5 to the Sims plants that have outstanding NOVs? How many
6 of them there may be, I don't know.
7 MR. CAMARA: Do you know?
8 A. I would venture to say none, but I don't know
9 the answer. The correct answer would be I don't know,
10 to be 100 percent sure. But that information is
11 available and we can get that information.
12 MR. CAMARA: So, again, just our closing
13 statement just very briefly, again, is that under
14 47-208(f) they haven't shown the two things they can
15 show, eminent harm to a person or City employee, or that
16 it's going to violate the plant's permit conditions.
17 And that we think is the test here.
18 Everything else can be litigated after proper notice
19 where everyone has a chance to develop the evidence and
20 where the plant continues to operate and service its
21 customers and employees.
22 MS. PRICE: And the closing statement
23 from the City is that the City does believe that it has
24 met this burden. We acknowledge that it is an
25 extraordinary remedy, that there is the ordinary 208

89
1 procedure, which you find in 208(a), which luckily
2 doesn't happen very often.
3 But I will concede I have seen at least
4 one termination letter and I was involved in that
5 hearing, but unfortunately, that did also involve your
6 client. But it may also be true that there are other
7 industrial users that get NOVs, and I am confident that
8 there are, but this is an extraordinary remedy.
9 And the director is not required to wait
10 until a plant is dead, till a plant has actual upset
11 conditions, or till the plant already has permit
12 violations. He's allowed to prevent injury. Getting
13 back to the overarching requirement of the Clean Water
14 Act, is that there are parameters that are put in place
15 for the industrial users to allow them to use the City's
16 publicly-owned treatment works.
17 There is always an option for an
18 industrial user to get its own NPDS or TPDS permit
19 directly from the state and not use our system. But
20 because as a convenience -- as a business convenience to
21 the many industries that operate in the City of Houston,
22 we have very strict permit limits and vigorous
23 enforcement procedure to assure our permit-issuing
24 agencies, TCEQ and EPA, that we are using best
25 engineering judgment to maintain the compliance of our

90
1 plant and to protect human health and the environment.
2 And thank you very much, Mr. Nassiri, for
3 serving as our hearing officer.
4 MR. CAMARA: Thank you very much, sir.
5 HEARING OFFICER: Thank you for coming.
6 And if there are no further questions, I will close this
7 hearing at --
8 MR. CAMARA: May we ask when we might
9 expect a decision?
10 HEARING OFFICER: I was going to say the
11 time and then I was going to say that. At 4:18, isn't
12 it? Yes. I will provide you a written decision on this
13 one in a timely manner.
14 MR. CAMARA: Could I ask -- I don't mean
15 to rush you. It's just that, again, we have this waste
16 that we have to store at the plant and customers to
17 tell. Do you have any idea of whether it might be a
18 day, a week, longer?
19 HEARING OFFICER: I would probably say 48
20 hours.
21 MR. CAMARA: Okay. Thank you very much,
22 sir.
23 HEARING OFFICER: All right. Thank you
24 very much.
25 (Proceedings concluded at 4:20 p.m.)

91
1 THE STATE OF TEXAS :
4 I, Julie M. Silhan, Certified Shorthand Reporter
5 in and for the State of Texas, do hereby certify that
6 the above and foregoing statements as set forth in
7 typewriting is a full, true, and correct transcript of
8 the proceedings had at the time of taking said
9 proceedings.
10 I further certify that I am neither attorney nor
11 counsel for, related to, nor employed by any of the
12 parties to the action in which this hearing was taken.
13 Further, I am not a relative or employee of any
14 attorney of record in this cause, nor do I have a
15 financial interest in the action.
16 GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this
17 the 5th day of November , 2009.
18
19
Julie M. Silhan - Texas CSR 6507
20 Expiration Date: 12/31/09
7838 Hillmont
713/647-5100
22
23
24
25

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1

4 IN RE: CES Environmental Services, Inc.

6 An Administrative Hearing was held on the 4th day

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

7 Julie M. Silhan, Certified Shorthand Reporter in and

for the State of Texas, reported by stenographic means,

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

5 Examination by Mr. Camara....................54

6 Examination by Ms. Price.....................73

7 Examination by Mr. Morse.....................76

8 Further Examination by Ms. Price.............87

9 Closing Arguments by Mr. Camara...................88

10 Closing Arguments by Ms. Price....................88

1 HEARING OFFICER: Thank y'all for coming.

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

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

4 Public Works and Engineering to oversee this hearing.

5 And my position, I'm assistant director in the

6 department. And this hearing is in response to

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

8 his client CSE. Right?

9 MR. CAMARA: CES Environmental Services,

11 HEARING OFFICER: To appeal the City's

12 termination of the waste water service to your facility.

13 I will receive any information that you might provide

14 later on regarding the case. And this hearing is at 900

15 Bagby, Second Floor, Conference Room 242. And today is

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

17 We are kind of behind, but hopefully we

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

19 back to our job. Anyway, first, I will ask the

20 applicant or his rep to confirm the notice of this

21 hearing that was received. Is that right?

22 MR. CAMARA: Yes, we agreed to this

24 HEARING OFFICER: And second, I will hear

25 from the Department of Public Works and Engineering's

1 witness regarding the reason for the termination of the

2 waste water service, later on. And the applicant may

3 ask questions of the City's rep and the applicant may

4 make a statement and present evidence and City's rep

5 will have opportunity to ask questions.

6 This is an administrative hearing and

7 will be conducted informally. This is not a legal court

8 or such a setting and without strict rules of judicial

9 procedure and evidence. I will hear all the relevant

10 testimony as long as it appears to be reasonably

11 connected with the case.

12 I may exclude any evidence that I think

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

14 And I will determine whether evidence is admissible and

15 I may take official notice of any documentations in the

16 applicant's industrial waste file.

17 MR. CAMARA: May I ask a question about

18 the scope of the hearing, sir?

19 HEARING OFFICER: May you ask what?

20 MR. CAMARA: A question about the scope

22 HEARING OFFICER: Let me finish this one

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

25 MR. CAMARA: Yes, sir.

1 HEARING OFFICER: I think the base is to

3 discharge permit. That will be the basis for this

5 MR. CAMARA: Yes, sir.

6 HEARING OFFICER: Okay. And based on my