Beruflich Dokumente
Kultur Dokumente
Velva L. Price
District Clerk
Travis County
D-1-GN-16-003482
Kirby Hernandez
D-1-GN-16-003482
126th
because (1) the State seeks non-monetary injunctive relief and (2) the State's claims for civil
2. PARTIES
2.1 Plaintiff~ the State of Texas, through its Attorney General, is authorized to bring
individual who has done business as Pollos Asados Los Nortefios and who may be served with
process at the business located at 4642 Rigsby Avenue, San Antonio, Texas 78222; his home at
6214 Sugar Creek Street, San Antonio, Texas 78244; or wherever he may be found.
individual who has done business as Pollos Asados Los Nortefios and who may be served with
process at the business located at 4642 Rigsby A venue, San Antonio, Texas 78222; her home at
6214 Sugar Creek Street, San Antonio, Texas 78244; or wherever she may be found.
2.4 Defendant, Parrillando SA, L.L.C., is a domestic limited liability company with
its principal place of business at 8406 Aristotle, Universal City, Texas 78148-2663. Parrillando
SA, L.L.C. may be served through its registered agent, Ileana Abigail Vilchis, at 8406 Aristotle,
Universal City, Texas 78148-2663, or wherever she may be found. On information and belief,
Parrillando SA, L.L.C. has been operating a restaurant called Pollos Asados Los Nortefios,
located at 4642 Rigsby Avenue, San Antonio, Texas 78222, since or around January 25, 2016.
Defendants Francisco Garcia and Maria Garcia are the managing members of Parrillando SA,
L.L.C.
2
Tex. Water Code 7.032, 7.105.
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State of Texas v. Francisco R. Garcia, et al.
3. JURISDICTION AND VENUE
3.1 This Court has jurisdiction over this case, and venue is proper in Travis County,
because this is an action to enforce Chapter 382 of the Texas Health and Safety Code, the TCEQ
4. APPLICABLE LAW
4.1 This is a suit to enforce the Texas Clean Air Act ("TCAA") codified in Chapter
382 of the Texas Health and Safety Code and rules adopted by the TCEQ pursuant to the TCAA.
The State seeks injunctive relief, civil penalties, and attorney's fees.
4.2 The TCAA provides that unless authorized by the TCEQ, no person may "cause,
suffer, allow, or permit the emission of any air contaminant or the performance of any activity
that causes or contributes to, or that will cause or contribute to, air pollution."4
4.3 A person may not cause, suffer, allow, or permit the emission of any air
contaminant or the performance of any activity in violation of the TCAA or of any Commission
rule or order. 5
4.4 Under the TCAA, '"air contaminant' means particulate matter, radioactive
material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those
4.5 "'Air pollution' means the presence m the atmosphere of one or more air
contaminants or combination of air contaminants in such concentration and of such duration that:
3
Tex. Water Code 7.032, 7.105; Tex. Gov't Code 2001.202.
4
Tex. Health & Safety Code 382.085(a).
5
Id. 382.085(b).
6
Id. 382.003(2).
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State of Texas v. Francisco R. Garcia, et al.
(A) are or may tend to be injurious to or to adversely affect human health or welfare, animal life,
vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life,
vegetation, or property." 7
4.6 Before any work is begun on a facility, any person who plans to construct any
new facility or to engage in the modification of any existing facility which may emit air
contaminants into the air of this state shall either obtain a general permit or satisfy the conditions
and criteria for a standard permit, flexible permit by rule, or de minimis facility. 8
4.7 Equipment used in eating establishments for the purpose of preparing food for
human consumption is permitted by rule under 30 Tex. Admin. Code 106.4. 9 Permits by rule
are applicable to facilities, or changes within facilities, that the TCEQ "has determined will not
make a significant contribution of air contaminants to the atmosphere pursuant to the Texas
Health and Safety Code, the TCAA, 382.057 and 382.05196." 10 The rules governing a
facility's eligibility for permits by rule are set forth in 30 Tex. Admin. Code 106.4. Emissions
from a facility permitted by rule must comport with applicable TCEQ regulations as well as
"with the intent of the TCAA, including the protection of health and property of the public." 11
Applicable TCEQ rules that all facilities, permitted by rule or otherwise, must follow include the
prohibition against creating a nuisance 12 and exceeding opacity limits. 13 Moreover, the facility
permitted by rule must maintain its emissions control equipment in "good condition and
7
Id. 382.003(3).
8
30 Tex. Admin. Code 116.11 O(a).
9
Id. I 06.242.
10
Id. I 06.1.
11
Id. 106.4(c).
12
/d. 101.4.
13
/d. 111.111.
14
/d. l06.4(c).
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State of Texas v. Francisco R. Garcia, et al.
4.8 Visible emissions from any stationary vent may not exceed an opacity 15 of 20%
averaged over a six-minute period for any source on which construction was begun after January
31, 1972. 16 Compliance with the opacity limit must be determined by applying EPA Method 9
4.9 TCEQ rules also provide that "[n]o person shall discharge from any source
whatsoever one or more air contaminants or combinations thereof, in such concentration and of
such duration as are or may tend to be injurious to or to adversely affect human health or
welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment
condition in violation of TCEQ rules. 19 The TCEQ has developed procedures to detect the
presence of a nuisance and to describe odors observed while investigating discharging facilities.
Specifically, TCEQ investigators use a "FIDO chart" to evaluate the frequency, intensity,
duration, and offensiveness of the nuisance. Additionally, citizens can file complaints with the
TCEQ to report potential nuisance conditions. Some complainants keep Odor Logs supplied by,
and eventually submitted to, the TCEQ, detailing the characteristics of the air contaminants and
4.10 No person may cause, suffer, allow, or permit any activity in violation of the
15
Opacity is the "degree to which an emission of air contaminants obstructs the transmission of light expressed as
the percentage of light obstructed as measured by an optical instrument or trained observer." Id. I 01.1 (73).
16
Id. 111.111 (a)(I )(8). A vent is ''[a]ny duct, stack, chimney, flue, conduit, or other device used to conduct air
contaminants into the atmosphere." Id. 101.1(114).
17
Id.111.lll(a)(l)(F).
18
Id. 101.4.
19 Id..
20
Tex. Water Code 7.101.
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State of Texas v. Francisco R. Garcia, et al.
4.11 In addition, no person may discharge from any source whatsoever such quantities
of air contaminants or other materials which cause or have a tendency to cause a traffic hazard or
4.12 The Attorney General, at the request of the TCEQ, may bring an action for
injunctive relief and civil penalties if it appears that a violation or threat of a violation of a statute
within the TCEQ's jurisdiction, or a rule adopted or an order or a permit issued under such a
4.13 "Any person owning or operating a source of air contaminants shall comply with
Protection Agency (EPA) pursuant to the Federal Clean Air Act, 111, as amended." 23
5. BACKGROUND
5.1 Francisco Garcia and Maria Garcia ("the Garcias") are the owners of a restaurant
called Pollos Asados Los Nortefios ("Pollos Asados") located at 4642 Rigsby Avenue in San
Antonio. On information and belief, Parrillando SA, L.L.C., has been operating Pollos Asados
since approximately January 25, 2016; however, the restaurant, and the property on which it sits,
is still owned by the Garcias. Pollos Asados is a popular restaurant known for its long lines and
grilled chicken, and it has a grilling area/smokehouse that utilizes mesquite charcoal in the
cooking process. Smoke produced from grilling is vented through two stacks in the roof. In
addition, the restaurant has been known to use a portable trailer with two smoke stacks as an
21
30 Tex. Admin. Code 101.5.
22
Id. 7.032, 7.105.
23
fd. 101.20(1).
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State o.fTexas v. Francisco R. Garcia, et al.
5.2 Pollos Asados is located just north of, and is less than a thousand feet from, a
residential neighborhood. The lots in this neighborhood are suited for outdoor recreation.
Several of the homes have picnic tables, playgrounds, and swimming pools in their yards, and,
like any residential neighborhood, some are occupied by children, the elderly, and individuals
5.3 For over a year, the thick smoke and odors commg from the Pollos Asados
restaurant have continuously interfered with its neighbors' use of their property. The smoke and
odors waft through the yards of nearby lots and roads, preventing homeowners from sitting in
their backyards, hanging laundry to dry, allowing their children to use play areas, opening
windows to enjoy fresh air or a breeze, or even walking to the mailbox without encountering
smoke. Some residents report that the smoke impacts them every day that the restaurant is open,
finding relief only on Mondays and the occasional holiday, when the restaurant is closed.
5.4 Neighbors disturbed by the smoke and odors coming from Pollos Asados have
resident who owns a home near the restaurant. The picture, which was taken from across the
street, shows smoke billowing from the restaurant's two stacks as well as the stacks on the
portable cooker.
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State of Texas v. Francisco R. Garcia, et al.
Figure I: Picture near Polios Asados Los Nortefios Restaurant, taken January 8, 2016
construct a new building to house the restaurant and stop the nuisance, he never followed
through with his claims. Moreover, Francisco Garcia did not attempt to mitigate the situation
until the City of San Antonio shut Pollos Asados down for code violations in January 2016.
While the Garcias and/or Parillando SA, L.L.C. did make some modifications to the restaurant's
stacks before reopening the restaurant, the Defendants continue to release thick and unpleasant
5.6 The photograph below, taken by a resident with a home near the restaurant, shows
thick, white smoke being released from the restaurant's modified stacks on the evening of
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State o.f Texas v. Francisco R. Garcia, et al.
Figure 2: View of smoke stacks at Polios Asados Los Nortefios at night, taken February 28, 2016.
B. Investigations
5.7 TCEQ investigators received a complaint from a neighbor regarding smoke and
odors coming from Pollos Asados on February 9, 2015. The TCEQ then began a series of
"the Site"), conducting surveillance and odor surveys using odor complaint and nuisance
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State of Texas v. Francisco R. Garcia, et al.
investigation procedures that monitor the frequency, intensity, duration, and offensiveness of
odors.
5.8 TCEQ first went to the Site to investigate the neighbor's complaint on February
12, 2015. While outside a home near Pollos Asados, a second neighbor approached the
investigators to lodge another complaint relating to the restaurant. That day, investigators
observed thick smoke coming from the two exhaust vents in the cooking area of Pollos Asados,
which drifted south into the nearby neighborhood and lingered in the tree canopies. Investigators
also smelled a chicken-cooking odor. TCEQ investigators went to the restaurant and spoke with
Mr. Garcia, who stated that he planned to move the cooking area and kitchen to the east side of
5.9 The investigators returned to the Site on March 10, 2015, and again observed
smoke in the neighborhood that lingered under the tree canopies. The investigators evaluated the
smoke, which was detected at a nearby residence, as unpleasant. They could see smoke coming
from the exhaust stacks at Pollos Asados and smell the cooking odor. TCEQ investigators
observed these conditions again two days later on March 12, 2015, during a subsequent Site visit.
The smoke and odors were especially strong when wind came from a northerly direction.
5.10 The smoke and odor nuisance remained during the investigators' visit on March
15, 2015. In addition to seeing smoke emissions coming from the exhaust stacks, investigators
observed smoke coming from a cooker in a portable trailer in the parking lot of the restaurant.
The investigators found the smoke from the restaurant unpleasant and watched the smoke
migrate into the front and back yards of one of the complainants.
5.11 In Odor Logs submitted to the TCEQ for the month of March 2015, a neighbor of
Pollos Asados complained of a strong, overwhelming odor of burnt grease and smoke migrating
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State of Texas v. Francisco R. Garcia, et al.
from the restaurant to his home, which he shares with family. This strong odor and smoke
permeated the family's clothes, prevented the family from opening their windows, and interfered
with the family's enjoyment of their front and back yards because they did not want to sit or
work outside. On twelve days throughout the month of March 2015 (March 7, 8, 12, 13, 14, 15,
19, 20, 21, 22, 25, and 26), the neighbor documented that the strong smoke and odors lasted ten
5.12 As a result of these investigations, the TCEQ mailed a Notice of Violation to Mr.
Garcia on April 23, 2015, which was delivered two days later. The Notice of Violation indicated
that the smoke coming from Pollos Asados was causing a nuisance for the restaurant's neighbors
5.13 The TCEQ conducted further investigations between June and August 2015 to
5.14 During this timeframe, TCEQ investigators made several inquiries to Mr. Garcia,
via telephone and email, regarding his failure to submit compliance documentation to the TCEQ.
5.15 Although Mr. Garcia did not respond with the requested documentation, the
investigators were, however, able to make contact with him. Specifically, during a telephone call
on June 2, 2015, Mr. Garcia claimed that he planned to hire a contractor to raise both the roof of
the cooking area and the stacks on the roof by several feet. Then, in an e-mail dated June 30,
2015, Mr. Garcia claimed that he was going to construct a new restaurant across the street from
Pollos Asados with a taller roof, which he hoped to start in a month and complete in early 2016.
5.16 When a TCEQ investigator visited Pollos Asados on June 11, 2015 and August 6,
2015, no changes had been made to the building, no construction across the street had begun, and
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State of Texas v. Francisco R. Garcia, et al.
the restaurant's stacks and portable cooking trailer were still in use, emitting large amounts of
smoke. The TCEQ issued a Notice of Enforcement against Garcia on August 14, 2015, for the
nuisance conditions at the restaurant, requiring him to implement corrective measures no later
5.17 Between August 31, 2015 and November 8, 2015, the TCEQ received five
separate complaints about the smoke and odor emanating from Pollos Asados.
5.18 Investigators visited the Site six times between mid-September and mid-
November. At the first inspection on September 15, 2015, TCEQ investigators observed smoke
and smelled unpleasant odors of a moderate intensity from the restaurant impacting several
neighboring homes. The investigators considered the smoke and odors sever enough that they
were a nuisance under the FIDO odor complaint standards. In addition, the investigators
watched several motorists at the nearby intersection of Rigsby Avenue and Tyne Drive hit their
brakes and slow down while traveling through thick smoke in the area, thereby impacting traffic
5.19 During a follow-up visit on September 23, 2015, TCEQ investigators observed
that the smoke and odor nuisances were still impacting the neighborhood. While standing at a
residence near the restaurant, investigators observed that the restaurant's heavy smoke obstructed
their view of the Pollos Asados building. During an hour-long FIDO investigation, the
5.20 In Odor Logs submitted to the TCEQ for September 13 and 19, 2015, neighbors
complained that they could smell the smoke and odors from their own yard, that they could not
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State of Texas v. Francisco R. Garcia, et al.
enjoy their property and spend time in their yards, and that their family members, including
5.21 The smoke and odor nuisance remained when the investigators went to the Site on
October 28, 2015. Investigators again experienced strong and unpleasant odors during the hour-
long FIDO investigation. The investigators observed heavy smoke surrounding businesses to the
southeast of Pollos Asados, in addition to impacting the residential neighborhoods to the south
5.22 According to Odor Logs submitted to the TCEQ for October 2015, complainants
in the area near Pollos Asados experienced the smoke and odors from the restaurant in their own
yards consistently for up to twelve hours on at least three days (October 4, 17, and 29). A
complainant indicated that she could smell strong cooking and smoke odors from her home's
yard, and that smoke was corning from both the restaurant's and the portable cooker's stacks.
The complainant described the smoke as constant and said the smoke prevented her family from
5.23 On November 3, 2015, TCEQ investigators observed smoke and smelled odors
from Pollos Asados drifting towards homes west of the restaurant. They could also see smoke
leaving Pollos Asados and drifting onto Rigsby Avenue, which caused traffic on that road to
5.24 Disturbance ofroad conditions remained an issue during a Site visit on November
10, 2015. Investigators driving south on Tyne Drive from Rigsby Avenue had difficulty seeing
through the thick smoke corning from the restaurant, thereby impacting their use of the road and
causing a traffic hazard. Investigators also experienced unpleasant and strong odors and smoke,
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State of Texas v. Francisco R. Garcia, et al.
which they considered to be a nuisance, at the restaurant and at houses to the west, where thick
5.25 When investigators visited Pollos Asados on November 13, 2015, they observed
smoke coming from the restaurant's stacks as well as from two additional stacks on a portable
trailer parked next to the restaurant that was being used for cooking. The smoke and odor
nuisances remained, as investigators saw smoke from Pollos Asados traveling towards nearby
residences and businesses. They also experienced strong and unpleasant odors at the property
during an hour-long FIDO investigation. Thick smoke coming from the stacks also continued to
cause a traffic hazard and interfere with normal road use at Rigsby Avenue and Tyne Drive by
5.26 During the course of its investigation, the TCEQ received numerous complaints
relating to Pollos Asados' smoke and odor issues. Odor Logs were submitted by complainants
living near the Site for fourteen days in November 2015 (November 12, 13, 15, 17, 18, 19, 20,
21, 22, 24, 25, 27, 28, and 29). These complaints described the smoke and odors originating
from Pollos Asados as a strong, unpleasant wood-burning smell that is inescapable and
suffocating. A neighbor stated that the smoke and odors are a constant occurrence that last for
up to twelve hours every day that the restaurant is open. 24 A complainant stated they were
unable to take their family members, including young children, out into the yard because of the
5.27 The TCEQ issued another Notice of Enforcement against Mr. Garcia on
December 14, 2015, for the traffic interference and nuisance conditions caused by Pollos Asados.
24
According to a complainant, the restaurant is open every day except Mondays and was closed on Thanksgiving
Day.
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State of Texas v. Francisco R. Garcia, et al.
5.28 Odor Logs submitted to TCEQ by a neighbor of Polios Asados in early December
2015 described the smoke and odors coming from the restaurant as thick, unbearable, nasty,
constant, unrelenting, flooding their yards, and preventing them from going outside and enjoying
their property. The neighbor, who indicated that they felt like a prisoner in their own home, also
stated that they experienced coughing and headaches due to the smoke. The neighbor provided a
5.29 Another Odor Log submitted by a neighbor for December 9, 10, 11, 12, and 13,
2015, indicated that the problem with the smoke was getting worse, and that a third smoke stack
had been added to the portable food trailer used by Pollos Asados. The neighbor said the odors
and smoke, which could last for up to thirteen or more hours a day, were flooding the
surrounding neighborhoods, including nearby schools and a city bus stop. The complainant
described the smoke as excessive, unbearable, and suffocating, and believed it contributed to
5.30 Odor Logs submitted for December 16, 17, 18, 19, 20, 22, 23, 24, 26, and 27,
2015, indicated that nuisances relating to odors and smoke from Pollos Asados continued on
those days. Specifically, a neighbor described the smoke as unbearable, constant, stinking, and
chocking, and stated the smoke was invading their yard, making it difficult to breathe, and
preventing their family, including a grandson, from enjoying and playing in the yard. The
neighbor asserted that smoke was present six days a week, unless the restaurant was closed for a
holiday, like Christmas. According to the complainant, smoke from Pollos Asados also traveled
5.31 A neighbor provided Odor Logs complaining of similar smoke conditions coming
from Pollos Asados on December 30 and 31, 2015, and January 2 and 3, 2016. The neighbor
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State of Texas v. Francisco R. Garcia, et al.
indicated that the odors and smoke were constant, and that the heavy smoke coming from the
restaurant continued to prevent their family from enjoying their yard over the holidays.
5.32 A neighbor also provided an Odor Log for events on January 6, 7, 8, 9, and 10,
2016. The log indicated that the smoke and odors remained a problem on those days for twelve
hours or more. The smoke was described as acrid and stinking, and the neighbor asserted that
the smoke choked them as they tried to do laundry in an open area and prevented their grandson
5.29 While the TCEQ inspections were ongoing, the City of San Antonio ("City")
performed its own investigation. By at least November 2015, the City determined that Mr.
Garcia was operating the smokehouse at Pollos Asados without a valid certificate of occupancy
("COO"). Although Garcia had previously obtained a COO for the restaurant, no smokehouse
had been constructed at the property when the initial inspection was performed and the COO was
issued.
5.30 On November 23, 2015, the City issued a citation against Mr. Garcia and his wife,
Maria Garcia, for operating the smokehouse without a COO. On December 15, 2015, the City
issued a notice to vacate the smokehouse for operating without a COO and threatened to
disconnect utilities, noting public health concerns and the TCEQ's nuisance findings. The City
issued three additional citations against the Garcias on December 22, 2015, January 5, 2016, and
5.31 On January 13, 2016, the same day the last citation was issued, the City revoked
the restaurant's COO and gave notice that it would shut off utility service to the restaurant within
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State of Texas v. Francisco R. Garcia, et al.
48 hours. On or around January 15, 2016, the City disconnected the utilities and Pollos Asados
however, that smoke and odors from the restaurant were still interfering with the normal use of
their property. TCEQ employees also learned that Parrillando SA, L.L.C., was allegedly going
to operate the restaurant going forward. Parrillando SA, L.L.C. filed documentation with Bexar
County on January 25, 2016, associating the corporation with the Pollos Asados restaurant.
2016. During the Site visit, investigators observed smoke from the restaurant blowing into a
nearby lumber yard. They also spoke with Mr. Garcia, who indicated that he had made changes
to the stacks before reopening the restaurant. TCEQ investigators subsequently learned that the
stacks had been modified in mid-January 2016 to increase their height and incorporate fans to
expel smoke.
5.34 Investigators went to the Site again on February 12, 2016. While there, a TCEQ
investigator performed an opacity evaluation of the emissions from the two restaurant stacks
using the EPA Method 9 testing procedures. The investigator documented an average opacity of
66.9% for the southern stack and 45% for the northern stack.
5.35 Two weeks later, on February 26, 2016, TCEQ investigators returned to Pollos
Asados and conducted another opacity assessment of the restaurant's two stacks using EPA
Method 9 testing procedures. This time, after the busy lunch hour was over, an investigator
documented an average opacity of 42.04% coming from the southern stack and 25.8% coming
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State of Texas v. Francisco R. Garcia, et al.
5.36 On March 9, 10, and 11, 2016, TCEQ investigators conducted odor surveys near
the restaurant. On the first two days, March 9 and 10, the investigators spent an hour each day in
the driveway and garage of a residence located near Pollos Asados. Standing outside, they saw
smoke moving from the restaurant's stacks into the home's yard, which irritated the
investigators' eyes. The restaurant's emissions also created strong and unpleasant smoke and
5.37 On March 11, 2016, TCEQ investigators spent an hour at a different residence
near Pollos Asados. While standing in the front yard, side yard, and driveway of the property,
they observed smoke coming from the restaurant into the home's yard. The homeowners have a
picnic table and playground equipment in the yard for their family, including their grandchild,
who is currently living with them, to use. However, the homeowners told TCEQ that they have
been unable to use their yard as intended because of the smoke and odors coming from Pollos
Asados. The smoke and food odor remained strong and unpleasant during the course of the
hour-long survey.
5.38 Investigators returned to the Site on April 22, 2016, to perform an opacity
observation of the restaurant's two stacks usmg EPA Method 9 testing procedures. The
investigators documented an average opacity of 60.4% coming from the southern stack and
32.5% coming from the northern stack. The smoke and cooking odors were detected again
during this investigation and were found to be unpleasant, strong in intensity, and surrounding
5.39 Since it began its investigation in February 2015, the TCEQ has received dozens
of complaints relating to the smoke and odors coming from Pollos Asados, including numerous
complaints made after the restaurant's stacks were modified in January 2016. Neighbors
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State of Texas v. Francisco R. Garcia, et al.
reported ongoing issues with the smoke and odors during the months of April, May, June, and
July 2016. For example, on April 28, 2016, a neighbor complained to TCEQ that incredible
amounts of smoke were drifting onto their property from the restaurant and sitting in the yard
like fog. The neighbor stated that the smoke made them unable to go outside and enjoy their
property except on Mondays, when Pollos Asados is closed. Then, in May 2016, several
individuals informed TCEQ of issues relating to smoke and odors from Pollos Asados. One
neighbor complained on May 14, 2016, that they could not breathe the air outside of their house
and, as a result, were unable to enjoy the yard. The complainant indicated that their family was
suffering from shortness of breath, headaches, and coughs, which they believed were related to
the smoke at the property. On May 17, 2016, an individual from the same family reported that
the smoke was so thick that it was making it difficult to breathe. The neighbor indicated that
they were coughing up phlegm that tasted like charcoal. A third complaint received by the
TCEQ that month stated a neighbor could not breathe in their yard on May 21 due to the smoke
entering their yard from Pollos Asados. The neighbor stated that the smoke caused shortness of
breath and that their family was suffering from burning and itching eyes, coughs, and sinus
problems. According to the neighbor, clouds of smoke coming from the restaurant were
lingering and hovering in their yard. Also, on June 1, 2016, a neighbor reported smoke billowing
onto their property from Pollos Asados. The neighbor complained that they and their son could
not play outside in the yard due to the thick smoke coming from the restaurant.
Francisco Garcia. Maria Garcia, and Parrillando SA, L.L.C. Caused an Air Nuisance
6.1 "No person shall discharge from any source whatsoever one or more air
contaminants or combinations thereof, in such concentration and of such duration as are or may
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State of Texas v. Francisco R. Garcia, et al.
tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or
property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or
property. " 25
6.2 As described above in section 5, TCEQ investigators visited the Site on numerous
occasions and observed smoke and/or smelled odors from Pollos Asados wafting into
neighboring residential areas and businesses to such a degree that it appeared to interfere with
the neighbors' normal use and enjoyment of their property. Residents reported to TCEQ
investigators that they were unable to enjoy or use their yards, open their windows, or walk
outside without encountering the unpleasant smoke and odors. TCEQ investigators and
neighbors confirmed the presence of smoke and/or odors at the Site on at least seventy-four (74)
different occasions, including: February 12, 2015; March 7, 2015; March 8, 2015; March 10,
2015; March 12, 2015; March 13, 2015; March 14, 2015; March 15, 2015; March 19, 2015;
March 20, 2015; March 21, 2015; March 22, 2015; March 25, 2016; March 26, 2015; June 11,
2015; August 6, 2015; September 13, 2015; September 15, 2015; September 19, 2015;
September 23, 2015; October 4, 2015; October 17, 2015; October 28, 2015; October 29, 2015;
November 3, 2015; November 10, 2015; November 12, 2015; November 13, 2015; November
15, 2016; November 17, 2015; November 18, 2015; November 19, 2015; November 20, 2015;
November 21, 2015; November 22, 2015; November 24, 2015; November 25, 2015; November
27, 2015; November 28, 2015; November 29, 2015; December 2, 2015; December 3, 2015;
December 4, 2015; December 5, 2015; December 6, 2015; December 9, 2015; December 10,
2015; December 11, 2015; December 12, 2015; December 13, 2015; December 16, 2015;
December 17, 2015; December 18, 2015; December 19, 2015; December 20, 2015; December
22, 2015; December 23, 2015; December 24, 2015; December 26, 2015; December 27, 2015;
25
30 Tex. Adm in. Code I 01.4.
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State of Texas v. Francisco R. Garcia, et al.
December 30, 2015; December 31, 2015; January 2, 2016; January 3, 2016; January 6, 2016;
January 7, 2016; January 8, 2016; January 9, 2016; January 10, 2016; February 9, 2016; March
9, 2016; March 10, 2016; March 11, 2016; and April 22, 2016.
6.3 Francisco Garcia and Maria Garcia were the owners and operators of Pollos
Asados until approximately January 25, 2016. Therefore, Francisco Garcia and Maria Garcia
violated Tex. Water Code 7.101 and 30 Tex. Admin. Code 101.4 on at least sixty-nine (69)
different occasions, including February 12, 2015; March 7, 2015; March 8, 2015; March 10,
2015; March 12, 2015; March 13, 2015; March 14, 2015; March 15, 2015; March 19, 2015;
March 20, 2015; March 21, 2015; March 22, 2015; March 25, 2016; March 26, 2015; June 11,
2015; August 6, 2015; September 13, 2015; September 15, 2015; September 19, 2015;
September 23, 2015; October 4, 2015; October 17, 2015; October 28, 2015; October 29, 2015;
November 3, 2015; November 10, 2015; November 12, 2015; November 13, 2015; November
15, 2016; November 17, 2015; November 18, 2015; November 19, 2015; November 20, 2015;
November 21, 2015; November 22, 2015; November 24, 2015; November 25, 2015; November
27, 2015; November 28, 2015; November 29, 2015; December 2, 2015; December 3, 2015;
December 4, 2015; December 5, 2015; December 6, 2015; December 9, 2015; December 10,
2015; December 11, 2015; December 12, 2015; December 13, 2015; December 16, 2015;
December 17, 2015; December 18, 2015; December 19, 2015; December 20, 2015; December
22, 2015; December 23, 2015; December 24, 2015; December 26, 2015; December 27, 2015;
December 30, 2015; December 31, 2015; January 2, 2016; January 3, 2016; January 6, 2016;
January 7, 2016; January 8, 2016; January 9, 2016; January 10, 2016. For each day on which
these violations occurred, Francisco and Maria Garcia are liable for a civil penalty within the
statutory range.
Page 21 of28
State of Texas v. Francisco R. Garcia, et al.
6.4 On information and belief, Parrillando SA, L.L.C., has been operating Pollos
Asados since approximately January 25, 2016. Therefore, Parrillando SA, L.L.C., violated Tex.
Water Code 7.101 and 30 Tex. Admin. Code 101.4 on at least ten different occasions,
including: February 9, 2016; March 9, 2016; March 10, 2016; March 11, 2016; April 22, 2016;
April 28, 2016; May 14, 2016; May 17, 2016; May 21, 2016; and June 1, 2016. For each day on
which these violations occurred, Parrillando SA, L.L.C., is liable for a civil penalty within the
statutory range.
Francisco Garcia and Maria Garcia Caused a Traffic Hazard/Interference with Road Use
6.5 "No person may discharge from any source whatsoever such quantities of air
contaminants or other materials which cause or have a tendency to cause a traffic hazard or an
billowing from the stacks at Pollos Asados that caused motorists traveling on the roads next to
the restaurant to use their brakes and/or slow down, or that impeded motorists' visibility, on at
least four occasions, including: September 15, 2015; November 3, 2015; November 10, 2015;
6.7 Therefore, Francisco Garcia and Maria Garcia violated Tex. Water Code 7.101
and 30 Tex. Admin. Code 101.5 on at least four days. For each day on which this violation
occurred, Francisco Garcia and Maria Garcia are liable for a civil penalty within the statutory
range.
and 26, 2016, and April 22, 2016, TCEQ investigators performed opacity assessments using EPA
26
30 Tex. Admin. Code I 01.5.
Page 22 of28
State of Texas v. Francisco R. Garcia, et al.
Method 9 testing procedures. For the two stacks at the restaurant, the investigators documented
an average opacity of 65% and 45% on February 12, 2016; 40% and 35% on February 26, 2016;
6.9 Therefore, Parrillando SA, L.L.C. emitted air contaminants into the atmosphere
with greater than 20% opacity from two separate stacks at Pollos Asados in violation of Tex.
Health & Safety Code 382.085(a), Tex. Water Code 7.101, and 30 Tex. Admin. Code
111.11 l(a)(l)(B) on at least three days. Each separate emission point, and each day on which
such emissions occurred, constitute separate violations for a civil penalty within the statutory
range.
7. CIVIL PENALTIES
7.1 Pursuant to Tex. Water Code 7.102, Defendants are subject to a civil penalty of
not less than $50 nor greater than $25,000 for each day of each violation of a statute, rule, order,
or permit relating to a matter within the TCEQ's enforcement jurisdiction. The State seeks civil
penalties against each Defendant within the range stated above for each day of each violation
8. INJUNCTIVE RELIEF
8.1 The Attorney General, at the request of the TCEQ, may bring an action for
injunctive relief if it appears that a violation or threat of violation of a rule or an order issued
under the TCEQ's statutory jurisdiction has occurred or is about to occur. 27 Accordingly, the
State seeks appropriate injunctive orders to prevent violations or threatened violations and to
8.2 As set forth above, Francisco Garcia, Maria Garcia, and Parrillando SA L.L.C.,
have not constructed or operated Pollos Asados in compliance with TCEQ rules regulating
27
Tex. Water Code 7.032, 7.105.
Page 23 of28
State of Texas v. Francisco R. Garcia, et al.
nmsance, traffic hazards/interference, and opacity violations caused by the em1ss10n of air
contaminants. Recent investigations show that Parrillando SA L.L.C., has continued to violate
state statutes and TCEQ rules and is continuing to cause an air nuisance to its surrounding
neighbors, to interfere with traffic, and/or to emit air contaminants without authorization.
8.3 The State requests that this Court grant a temporary injunction against Parrillando
SA L.L.C., its officers, agents, servants, employees, managing members, attorneys, and all other
persons acting in active concert or participation with it who receive actual notice of this
A. As used in this Injunction, the following words and terms have the following
meanmgs:
L "Pollos Asados" means the restaurant called Pollos Asados Los Nortefios
located at 4642 Rigsby Road in San Antonio, Texas;
ni. "Defendant" means Parrillando SA, L.L.C., its officers, agents, servants,
employees, managing members, attorneys, and all persons in active
concert or participation with Parillando SA, L.L.C., or who are acting on
its behalf or under its control.
1v. "Effective Date" means the date that the Defendant is served with this
injunction either in person or through its counsel, whichever occurs first.
B. Immediately upon the Effective Date of this Injunction, the Defendant shall cease
operation of the smoke house and portable cooker at Pollos Asados. Defendant
will also discontinue the use of any other cooking equipment at Pollos Asados
that utilizes charcoal, mesquite charcoal, or wood in the cooking process.
C. If the Defendant seeks to resume using the smoke house, portable cooker, or any
cooking equipment that utilizes charcoal, mesquite charcoal, or wood after an
Injunction is entered in this case, the Defendant must comply with the following:
L The Defendant must prepare and file with the Court, TCEQ, and the State
a written compliance plan detailing specific actions it will take to bring the
operation of Pollos Asados into compliance with 30 Tex. Admin. Code
101.4, 101.5, and 111.11 l(a)(l)(B) regarding nuisance, traffic
hazards/interference, and opacity, respectively, and demonstrate
Page 24 of28
State of Texas v. Francisco R. Garcia, et al.
compliance under 30 Tex. Admin. 116.110. At a mm1mum, the
compliance plan must address the following:
a. how the Defendant will stop any and all nuisances resulting from
the emissions released by Pollos Asados, including smoke and
odors (30 Tex. Admin. Code 101.4);
c. how the Defendant will limit the opacity of Pollos Asado' s visible
em1ss10ns to 20% or less (30 Tex. Admin. Code
111.11 l(a)(l)(B));
n. Defendant must provide the Court, TCEQ, and the State with copies of its
written compliance plan at least 45 days before a hearing to modify the
Injunction entered in this case so that TCEQ may, through the State and if
deemed necessary, file a response to the proposed compliance plan.
111. After submitting the compliance plan to the Court, TCEQ, and the State,
Defendant may seek a hearing to modify the Injunction in this case,
including an order allowing operations to resume at Polios Asados in
accordance with the compliance plan approved by the Court and after the
terms of the compliance plan have been completed.
1v. Nothing in this Injunction prevents the State from seeking additional
penalties and additional injunctive relief should the actions taken in the
compliance plan fail to remedy any of the nuisance, traffic interference, or
opacity violations occurring at Polios Asados, or should additional
violations arise or occur.
Page 25 of28
State of Texas v. Francisco R. Garcia, et al.
D. Defendant must submit all compliance plan and certification documents to the
individuals below, in addition to filing the compliance plan with the Travis
County District Court:
George Ortiz
Air Section Manager, Region 13 - San Antonio
Texas Commission on Environmental Quality
14250 Judson Road
San Antonio, Texas 78233-4480
and
Shelly M. Doggett
Environmental Protection Division
Office of the Attorney General
P.O. Box 12548, MC-066
Austin, Texas 78711-2548.
8.4 Upon trial, the State requests that the temporary injunction be made permanent,
9.1 Pursuant to Tex. Water Code 7.108 and Tex. Gov't Code 402.006, the State
asks this Court to award the State its reasonable attorney's fees, investigative costs, and court
costs incurred in relation to this proceeding. If there is an appeal to the Court of Appeals or to
the Supreme Court, the State seeks its additional reasonable attorney's fees and court costs on
PRAYER
1. that the Court issue citation for Francisco Garcia, Maria Garcia, and Parrillando
2. that upon hearing, the Court grant a temporary injunction against Parrillando SA,
Page 26 of28
State of Texas v. Francisco R. Garcia, et al.
3. that upon trial, the Court grant a permanent injunction against Parrillando SA,
4. that the Court grant judgment for appropriate civil penalties within the range
allowed by law against Francisco Garcia, Maria Garcia, and Parrillando SA,
L.L.C.;
5. that the State be awarded its reasonable attorney's fees, investigative costs, and all
costs of Court;
6. that the State be awarded post-judgment interest on the unpaid civil penalties,
attorney's fees, and investigative costs, at the legal rate until fully paid;
and
7. that the State be awarded all such other and further relief, at law and in equity, to
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
PRISCILLA M. HUBENAK
Chief, Environmental Protection Division
Page 27 of28
State of Texas v. Francisco R. Garcia, et al.
~o~!~
Assistant Attorney General
State Bar No. 24069619
Shelly.Doggett@texasattorneygeneral.gov
SIREESHA CHIRALA
Assistant Attorney General
State Bar No. 24087295
Sireesha. Chirala@texasattorneygeneral.gov
Page 28 of28
State of Texas v. Francisco R. Garcia, et al.
AFFIDAVIT OF RICK CIAMPI
ST ATE OF TEXAS }
}
COUNTY OF TRAVIS }
BEFORE ME, the undersigned authority, on this day personally appeared Rick Ciampi, a
person whose identity is known to me. After I administered an oath to him, upon his oath, he said:
My name is Rick Ciampi. I am over the age of eighteen years, of sound mind, and capable of
making this affidavit [ make this affidavit on the basis of my personal knowledge and facts I
detennined upon my investigation of this matter. The statements herein are true and correct
RICK CIAMPI
STATE OF TEXAS }
}
COUNTY OF }
BEFORE the undersigned authority, on this day personally appeared Brian Wille, a
person whose identity is known to me. After I administered an oath to him, upon his oath, he said:
My name is Brian Wille. I am over the age of eighteen years, of sound mind, and capable of
making this affidavit. I make this affidavit on the basis of my personal knowledge and facts I
detennined upon my investigation of this matter. statements herein are true and correct.
~1~._.._....,i~/,~----"-
otary Public in and fort 1e State of Texas
2. Indicate case type, or identify the most important issue in the case (select only 1):
Civil Family Law
Post-judgment Actions
Contract Injury or Damage Real Property Marriage Relationship (non-Title IV-D)
Debt/Contract Assault/Battery Eminent Domain/ Annulment Enforcement
Consumer/DTPA Construction Condemnation Declare Marriage Void Modification Custody
Debt/Contract Defamation Partition Divorce Modification Other
Fraud/Misrepresentation Malpractice Quiet Title With Children Title IV-D
Other Debt/Contract: Accounting Trespass to Try Title No Children Enforcement/Modification
____________________ Legal Other Property: Paternity
Foreclosure Medical ____________________ Reciprocals (UIFSA)
Home Equity Expedited Other Professional Support Order
Other Foreclosure Liability:
Franchise _______________ Related to Criminal
Insurance Motor Vehicle Accident Matters Other Family Law Parent-Child Relationship
Landlord/Tenant Premises Expunction Enforce Foreign Adoption/Adoption with
Non-Competition Product Liability Judgment Nisi Judgment Termination
Partnership Asbestos/Silica Non-Disclosure Habeas Corpus Child Protection
Other Contract: Other Product Liability Seizure/Forfeiture Name Change Child Support
______________________ List Product: Writ of Habeas Corpus Protective Order Custody or Visitation
_________________ Pre-indictment Removal of Disabilities Gestational Parenting
Other Injury or Damage: Other: _______________ of Minority Grandparent Access
_________________ Other: Parentage/Paternity
________________________________________________________________________________ __________________ Termination of Parental
____________________
REQUESTED BY:
CAUSE #: new petition CASE STYLE: State of Texas v. Francisco R. Garcia, individually and d/b/a Pollos Asados Los Nortenos, Maria Mayela Garcia, individually and d/b/a Pollos Asados Los Nortenos, and Parrillando
DETAILED SERVICE REQUEST: (ON PARTICULAR PARTIES, BY VARIOUS DELIVERY METHODS, OR FOR NON-CITATION
DESRIPTION OF INSTRUMENT(S) TO BE SERVED: State of Texas's Original Petition and Application for Injunctive Relief
I HAVE INCLUDED ATTACHMENTS TO THIS REQUEST (e.g. discovery) TO INCLUDE IN THE CITATION
I
TYPE OF PROCESS TO CITATION CERTIFIED NOTICE PROTECTIVE ORDER* TRO*^ INJUNCTION*^ SEQUESTRATION*^
ISSUE: ATTACHMENT* EXECUTION* ABSTRACT* SUPERSEDEAS^ SCIRE FACIAS* OTHER^
*SPECIFY TITLE AND DATE OF UNDERLYING ORDER IN CASE RECORD: ^ATTACH A COPY OF BOND AND/OR OTHER SUPPORTING
DOCUMENT
SERVICE TO BE ISSUED:
PARTY NAME: Francisco R. Garcia individually and d/b/a Pollos Asados Los Nortenos EMAIL PROCESS TO: SERVE VIA:
TRAVIS CO. CONSTABLE PERSONAL SERVICE
PARTY TYPE
TYPE:: Defendant ATTORNEY/REQUESTOR CERTIFIED MAIL (BY CONSTABLE)
PRIVATE PROCESS AGENCY: CERTIFIED MAIL (BY CLERK)
USE ADDRESS IN ORIGINAL PETITION SECRETARY OF STATE Process Agency Name: CITATION BY POSTING*
OTHER ADDRESS: CITATION BY PUBLICATION*
CITATION
PARTY NAME: EMAIL PROCESS TO: SERVE VIA:
Maria Mayela Garcia, individually and d/b/a Pollos Asados Los Nortenos
TRAVIS CO. CONSTABLE PERSONAL SERVICE
PARTY TYPE
TYPE::
Defendant ATTORNEY/REQUESTOR CERTIFIED MAIL (BY CONSTABLE)
PRIVATE PROCESS AGENCY: CERTIFIED MAIL (BY CLERK)
USE ADDRESS IN ORIGINAL PETITION SECRETARY OF STATE Process Agency Name: CITATION BY POSTING*
OTHER ADDRESS: CITATION BY PUBLICATION*
CITATION
PARTY NAME: Parillando SA, L.L.C. by serving its Registered Agent Ileana Abigail Vilchis
EMAIL PROCESS TO: SERVE VIA:
TRAVIS CO. CONSTABLE PERSONAL SERVICE
PARTY TYPE
TYPE:: Defendant ATTORNEY/REQUESTOR CERTIFIED MAIL (BY CONSTABLE)
PRIVATE PROCESS AGENCY: CERTIFIED MAIL (BY CLERK)
USE ADDRESS IN ORIGINAL PETITION SECRETARY OF STATE Process Agency Name: CITATION BY POSTING*
OTHER ADDRESS: CITATION
CITATION BY PUBLICATION*
*THIS TYPE OF SERVICE MAY REQUIRE A COURT ORDER. ENTER DATE OF SERVICE ORDER IN CASE RECORD:
ADDITIONAL INSTRUCTIONS FOR CLERK OR FOR OFFICER SERVING PROCESS:
FOR ADDITIONAL PARTIES TO BE SERVED, USE e-FILED PROCESS ISSUANCE REQUEST FORM ADDENDUM