7- 12.17.09 First Amended Complaint

8/14/2019 7- 12.17.09 First Amended Complaint

1/25

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXASHOUSTON DIVISION

CES ENVIRONMENTALSERVICES INC.,

Plaintiff,

Case No. 4:09-cv-3620v. Jury Demanded

CITY OF HOUSTON, et al.,Defendants.

FIRST AMENDED COMPLAINT

K.A.D. CamaraTexas Bar No. 24062646Southern District Bar No. [email protected]

Attorney-in-Charge for the Plaintiff

Timothy Paul NybergTexas Bar No. [email protected]

Kent RadfordTexas Bar No. [email protected]

Camara & Sibley LLP

2339 University Boulevard

Houston, Texas 77005713-893-7973713-893-1131 (fax)

Attorneys for the Plaintiff

Case 4:09-cv-03620 Document 7 Filed in TXSD on 12/17/09 Page 1 of 25


2/25

Contents

1 The post-TRO denouement of the Citys first termination of

wastewater service 5

2 The Citys second attempt to terminate wastewater service,

this time, based on an illegal permit amendment 6

2.1 The Citys imposition of Endorsement TTO . . . . . . . . . . 62.2 Cause of Action 42 U.S.C. 1983 . . . . . . . . . . . . . . . 10

3 The Citys unconstitutionally vague odor ordinance 11

3.1 The relentless, standardless City odor inspections . . . . . . . 12

3.2 Standardless citizen complaints . . . . . . . . . . . . . . . . . 153.3 Odor NOVs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163.4 Cause of Action 42 U.S.C. 1983 . . . . . . . . . . . . . . . 18

4 A temporary injunction is appropriate 20

5 Further prayer for relief 22

2



3/25

Table of Exhibits

Exhibits AR are attached to the Original Complaint.

Exhibit S: Intentionally Omitted

Exhibit T: Video 1 of the Citys Nuisance Inspections

Exhibit U: Video 2 of the Citys Nuisance Inspections

Exhibit V: Video 3 of the Citys Nuisance Inspections

Exhibit W: Citizen Collected Evidence Information Packet

Exhibit X: City Document Labeled Report Environmental Violations

Exhibit Y: December 1 Termination Letter

Exhibit Z: August 18, 2009, Notice of Violation

3



4/25

COMES NOW CES Environmental Services Inc. and, in addition to

the allegations contained in its Original Complaint (167), which CES

hereby incorporates as though fully set out here,1complains that:

the City and Mr. Marcotte are continuing to attempt to terminate

CESs wastewater service and, hence, CESs rights under permits

from the City that entitle CES to wastewater service without due

process of law, this time by relying on a purported permit amendment

that the City had no legal authority to make;

the City and its Bureau of Air Quality are subjecting CES to notices of

violation and threatening to subject CES to prosecution and regulatory

fines for violation of an odor ordinance that, as stated and enforced,

gives CES no adequate notice of what conduct is prohibited and vests

in city employees unfettered discretion to harass CES; and

the City has displayed a special animus and a pattern of lawlessness

toward CES that justifies this Courts granting a temporary injunction

enjoining the City from enforcing its unlawful amendment to CESs

wastewater permit, enforcing or issuing notices of violation pursuant

to its unconstitutionally vague odor ordinance, and interfering with

CESs business in any other way without prior leave from this Court.

1CES files this First Amended Complaint as a matter of course under Rule 15(a)(1).As amended by the amendments that took effect on December 1, 2009, Rule 15 allowsa party to amend its pleading once as a matter of course within . . . 21 days afterservice of a responsive pleading if the pleading is one to which a responsive pleading is

4



5/25

1 The post-TRO denouement of the Citys

first termination of wastewater service

68. This case began on Halloween, when the City of Houston ter-

minated CESs wastewater service without prior notice or a pretermination

hearing. The original complaint details how the City sent vans with a police

escort to disconnect CESs service, see Complaint at 1; how the City held a

hearing bereft of the basic features of due process, see id. at 1321; how the

City failed to present any evidence at all of an imminent harm to members

of the public or city employees to justify its emergency shutdown; how the

Citys only witness, Walid Samarneh, admitted that there was no evidence

of any such harm, see id. at 2127; and how CES was forced to apply to

this Court for a temporary restraining order requiring the City to restore

wastewater service immediately, see id. at 2833.

69. At the TRO hearing, the City agreed to restore wastewater ser-

vice. CES withdrew its application for a TRO, but stated that it would

continue to claim damages stemming from the Citys illegal shutdown. The

parties read their agreement into the record. Notwithstanding the Citys

agreement to restore service immediately, the City has since restored ser-

vice to only one of the two sampling points that it disconnected. The City

restored service to sampling point (5), but has not yet restored service to

required. A complaint is a pleading to which a responsive pleading is required. See Rule12(a)(1)(A). Defendants The City of Houston and Michael S. Marcotte filed their answeron December 14. Because CES is filing this First Amended Complaint within 21 daysafter December 14, it is entitled to amend its complaint as a matter of course.

5



6/25

sampling point (1). As a result, CES is able to operate its principal treat-

ment facility, but is subject to a variety of other inconveniences, including,

for example, having no working restrooms except in one building at the rear

of the Griggs Road facility.

2 The Citys second attempt to terminate

wastewater service, this time, based on an

illegal permit amendment

70. On December 1, the City sent a letter to CES stating that it

would terminate wastewater service on December 16, unless CES sought

another administrative hearing by that time. See Ex. Y. The City based

its threatened termination of service on alleged violations of the City of

Houston Total Toxic Organics (TTO) Limit. Id. at 2. As the letter explains,

the TTO limit appears in Endorsement TTO of Industrial Waste Permit No.

9558. Id. at 2. Permit 9558, including Endorsement TTO, appears at page

17 of Exhibit K to the Original Complaint. Endorsement TTO contains a

list of 103 chemicals and the limit that the summation of all quantifiable

values greater than 0.1 mg/L for any compound listed must be less than 50

mg/L.

2.1 The Citys imposition of Endorsement TTO

71. Permit 9558 governs wastewater discharge from CESs primary

waste-processing facility. This permit is the one that corresponds to the

6



7/25

wastewater service that CES restored after the TRO hearing in November.

Permit 9558 was issued on December 14, 2008, and expires on December 14,

2010. See Ex. K at 1. In January 2009, the City of Houston purported to

amend Permit 9558 to impose the TTO limit in Endorsement TTO. See Ex.

D at 12:1819. This unilateral amendment was not authorized by the rele-

vant City ordinance and, therefore, constituted the confiscation of property

without due process of law.

72. The Citys ability to modify a permit after it has been issued is

limited by ordinance:

The department may modify the conditions of any permit fromtime to time, as necessary to prevent interference or a pass throughof the sewer system, contamination of sewage sludge or violationby the city of laws or regulations enacted by the state or federalgovernment. Code of Ordinances 47-189(b).2

None of these conditions was present when the City modified Permit 9558 to

add Endorsement TTO.

73. A history of the permit negotiations between the City and CES

is necessary to fully understand the situation. In May 2008, Clyde Smith,

an Environmental Investigator V with the City of Houston, emailed CES

2A pass through is defined as [a] discharge which exits the POTW into waters ofthe United States in quantities or concentrations which, alone or in conjunction with adischarge or discharges from other sources, is a cause of a violation of any requirement of

the POTWs NPDES or state discharge permit. Code of Ordinances 47-186.The POTW is a publicly owned treatment work and is defined as [a]ll city wastew-

ater treatment facilities, wastewater lift stations, and all wastewater collection and/orconveyance systems. The term is synonymous with sanitary sewer system below. Codeof Ordinances 47-186.

An NPDES permit is [a] permit issued to the POTW pursuant to section 402 of theClean Water Act. Code of Ordinances 47-186.

7



8/25

a proposed endorsement to CESs wastewater-discharge permits for CESs

review and comments. That email contained a list of chemicals that the City

proposed to regulate along with the amount of each chemical that would be

permitted. CES responded, in part, by stating that some of the chemicals

listed presented no danger and that CES would prefer a much higher limit.

74. CES asked for a meeting with the City to discuss the proposed

modification. As a result of this meeting, the City further explained that the

initial list of chemicals it sent were the only ones that would be evaluated

when an industry has a Total Toxic Organic limit (TTO Limit). The City

later took a sample of the water that CES discharges into the sewer system for

analysis and found that CES would have no difficulty meeting the proposed

TTO amendment under the original list. The City expressly stated this in

an email to CES on December 3, 2008.

75. The City and CES then met to discuss the TTO issue, but the

City engaged in a classic bait and switch by changing the list of chemicals on

the TTO list. The City explained its decision to substantially increase the

number of chemicals that go into a TTO determination as follows:

The data shared with CES from this study was strictly 624and 625 methods. It may be that there was a decision made touse method 624 and 625 because that is our routine and it was a

better fit with what we routinely run in or [sic] lab. Your pointbelow Matt is correct about not creating toxicity issues. We are just trying to get you folks coverage under all those compoundslisted on method 624 and 625 while at the same getting a bestfit for the routine, software and lab procedures the City alreadyruns.

8



9/25

We will hold this matter open until CES and the City has

a chance to evaluate if the different list really makes an realdifference in the big picture of getting CES coverage while nottriggering violations.

The City did not hold the matter open though. Instead, City Investigator

Clyde Smith wrote that same day to take back what his boss so candidly

admitted.

76. Realizing that the City admitted that it made up the new list for

no reason other than the Citys convenience, Clyde Smith wrote an email

stating that the newly added compounds, such as 2-butanone and acetone,

could be a concern for workers on the sanitary sewer collection system or

endanger the health of the general public if these solvents were discharged

from an industry at elevated concentrations. He never specified what harm

may occur or what constituted an elevated concentration. These statements

are irrelevant to a permit modification, though, because they do not meet

the standard the City set for itself for modifying a permit.

77. The chemicals that the City alleged could cause harm include

acetone and 2-butanone. Acetone has an OSHA permissible exposure level

of 1000 parts per million (ppm). Parts per million are equivalent to mil-

ligrams per liter. Acetone will quickly biodegrade and evaporate when re-

leased into water and is not harmful to aquatic life, including the organisms

used by the City at its POTW. Even concentrations of acetone far greater

than CES has ever produced would be dramatically lower by the time CESs

discharge reached the Citys waste treatment facility and would do no harm

9



10/25

to the microbes, the people, or the facility. The story is similar with 2-

butanone. The OSHA permissible exposure limit is 200 ppm and is not

considered hazardous by OSHA. Simply stated, the threat that Clyde Smith

tried to manufacture to justify the Citys decision is not supported by the

facts.

2.2 Cause of Action 42 U.S.C. 1983

78. CES has a constitutionally protected property interest in its right

to discharge wastewater under Permit 9558. See Complaint at 6972 (col-

lecting cases). Because CES has a property interest in its permit right, the

City could terminate this permit right only after giving CES due process of

law. See id. at 73 (collecting cases). Endorsement TTO effectively termi-

nated CESs permit right because it imposed restrictions on that right that

did not exist under the original permit. The Citys latest termination let-ter, which seeks to enforce Endorsement TTO, makes this invasion of CESs

permit right clear.

79. The Citys action amounts to termination of a constitutionally

protected property interest without any kind of pretermination hearing at all.

The City did not give CES any opportunity to contest the appropriateness

of its final TTO list after it settled on that list in December 2008. Instead,

the City simply imposed its TTO list through Endorsement TTO in January

2009. See Wedgewood Ltd. Partnership I v. Township of Liberty, Ohio,

456 F. Supp. 2d 904, 937 (S.D. Ohio 2006) (requiring notice and hearing re:

10



11/25

change to scope of developers permit).

80. Endorsement TTO was adopted across the board as a result of

an internal policy decision made by the Citys Wastewater Division. The

decision to enforce Endorsement TTO against CES was an implementation or

execution of this policy. See Complaint 5760 (discussing law of municipal

liability under 1983).

3 The Citys unconstitutionally vague odorordinance

81. The City of Houston enforces a nuisance ordinance governing

odors that reads, in relevant part, as follows:

(b) The following specific acts, conditions, and things are de-clared to constitute public nuisances and are hereby prohibitedand made unlawful:

(1) The deposit or accumulation of any foul, decaying, or pu-trescent substance or other offensive matter in or upon any lot,street, or in or upon any public or private place in such a way asto become offensive or objectionable; the overflow of any foul liq-uids, or the escape of any gases, dusts, fumes, mists, and spraysto such an extent that the same, or any one of them, shall be-come, or be likely to become, hazardous to health or a sourceof discomfort to persons living or passing in the vicinity, or thatthe same shall by reason of offensive odors become a source ofdiscomfort to persons living or passing in the vicinity thereof.

Code of Ordinances 10-451.

This ordinance provides no objective standards by which a person subject to

it can comply. The ordinance allows the City to enforce it in a completely

11



12/25

arbitrary manner and with unfettered discretion.

3.1 The relentless, standardless City odor inspections

82. Under the guise of this ordinance, the City of Houston began a

pattern of harassing inspections that continues to this day. The City has

alleged that CES is emitting strong, off-site odors in alleged violation of the

Citys nuisance ordinance and has investigated CES over 200 times. No other

business in Houston has faced this kind of scrutiny for alleged odor violations.

83. During these investigations, the City, through its employees, used

no scientific method to determine the source of any alleged odor, to determine

what type of odor was allegedly being emitted, to determine the strength of

any alleged odor, or to determine the duration of any alleged odor. The only

manner in which the City determined an alleged violation of the nuisance

ordinance occurred was by going to areas around CES and smelling the air.In many cases, the City never conducted any investigation within the CES

facility.

84. The City, through its employees, used no objective criteria for

determining whether an alleged violation of the Citys nuisance ordinance

occurred. City employees were simply using their subjective experience to

determine whether an alleged violation occurred.

85. In an attempt to both comply with the nuisance ordinance and

to document the arbitrary and harassing nature of the Citys actions, CES

began videotaping the odor investigations when City inspectors arrived at

12



13/25

the CES facilities. See Ex. TV. In one such video, lasting approximately 5

minutes, CES employees offered to walk the property with City inspectors

to determine the source of the alleged odor problem. The City inspectors

refused. See Ex. T. CES then specifically asked what the City looked for

to determine whether a nuisance condition existed, and the City employees

responded that any smell could be a nuisance (it is highly subjective) and

that the City employs no type of objective scale to make that determination.

The City employees also stated that they were aware of the system used by

the TCEQ and the instruments used by the City of Dallas but used neither

of those in Houston. Id.

86. Another video taken of an inspection shows much more egregious

behavior by the City. See Ex. U. In this 12-minute video, the City inspec-

tor showed up with a police officer and spent the first five minutes of the

inspection talking on the telephone. While the City inspector was making

his phone call, the police officer determined that there was no need for his

presence and left. The City inspector, however, refused to walk the property

and conduct an onsite investigation; he stated that he would only walk the

property with a police escort despite repeated offers from CES employees to

escort him. Id.

87.CES asked this inspector repeatedly how he made the determi-

nation that a nuisance odor condition existed in an effort to identify and

correct any problem that may have occurred and to comply with the Citys

ordinance. Instead of providing any information, the inspector became bel-

13



14/25

ligerent and would do nothing more than demand identification so he could

fill out the NOV form. Id. Finally, the inspector revealed his methodology:

he claimed that he stood on a street next to the CES facility for 30 minutes

and smelled a continuous odor. He would provide no further information.

Interestingly, CES had no operations that day. Id.

88. In yet another videotaped investigation, the City once again came

to the CES facility with the police but yet again refused to walk the property.

See Ex. V. This time, the City inspectors claimed that an off-site inspection

was all they were allowed and required to do. Id. When CES again inquired

how the company was supposed to respond to the NOV when the City would

not identify the odor, the City inspectors told CES to write a memo. Id.

The City inspectors further explained that CES should go to Grace Lane

(the street next to the facility) and identify the odor itself just as the City

inspectors had done. The City inspectors said it was CESs responsibility to

determine the odor source. Of course, the City inspectors also said the wind

had changed and the odor had shifted since they conducted their investiga-

tion. Id. This made it impossible for CES to duplicate whatever inspection

the City conducted. Lastly, when two CES employees were discussing the

Citys lack of a methodology for the inspection, one City inspector inter-

jected himself into the conversation and tried to intimidate the employees bystating that their discussion was butting into our investigation which was

not permitted. The City inspector refused to state how they conducted their

inspection and told CES that if the company had better technical expertise

14



15/25

than the City then the company should provide it. Id.

89. Each inspector used a different method for determining whether

an odor nuisance was present. Some were inspectors gadget, others used the

nose. None were willing to explain a methodology to CES that CES could use

to bring itself into compliance in the future. And no two inspectors agreed on

what methodology they were all supposed to be using. See City of Webster

v. Signad, Inc., 682 S.W.2d 644, 648 (sign ordinance fatally vague where it

lacked guidelines and left each successive city engineer [to] select his own

standard for determining compliance).

3.2 Standardless citizen complaints

90. The City compounds the problem posed by its standardless ordi-

nance by enlisting citizens to file complaints based on a similarly standardless

set of instructions. In the City of Houston Bureau of Air Quality ControlCitizen Collected Evidence Information Packet (Citizen Packet), the City

provides an Odor/Dust Log that asks the public to rate the intensity of

the odor as either very strong, strong, moderate, light, or very light. Ex.

W. The Citizen Packet also asks the public to rate the offensiveness off the

order as either highly offensive (worst), offensive, unpleasant, not unpleasant

(best). Id. The City provides no other guidance for citizens in this document

and includes a disclaimer at the bottom:

This is a discretionary guidance document. The guidance ismeant solely for the employees of the City of Houston and may berevised from time to time. This guidance may not be relied upon

15



16/25

to create a right, or benefit, substantive or procedural, enforceable

in law or equity by any person of the regulated community. TheCity may take action that is at variance with the guidance in theappropriate case. Id.

91. In a separate document the City labeled Report Environmental

Violations, the City asks the public to call 3-1-1 and provides a description

of what it calls common environmental violations to report. Ex. X. This

document lists Odor Pollution and asks the public to [r]eport offensive

odors, and rate them as: Highly Offensive, Offensive, Unpleasant. Id. The

City provides no guidance in determining how to rate the alleged offensiveness

of an odor.

3.3 Odor NOVs

92. The actual NOVs issued by the City are instructive in the pro-

cess in which the City engages. See Ex. Z.3 For example, on August 18,

2009, the City issued an NOV at 4:22 p.m. that alleged to be for a viola-

tion of CC 409 Sec. 451(b)(1): Permit the overflow of foul liquid/escape

of gases/dust/fumes/mist/sprays: Caused Discomfort. Id. The alleged vi-

olation was described in total as [p]ermitting the escape of offensive odor

to the extent that shall become a source of discomfort to persons living in

the vicinity. Id. The NOV contains no information about what material

was allegedly being released, what quantities were allegedly being released,

3This NOV is simply an example of those issued by the City. The NOVs are on a formand all provide essentially the same information and allegations.

16



17/25

what the duration of the alleged wrongful release was, the source of the al-

leged wrongful release, when the allegedly wrongful release occurred, or how

the allegedly wrongful release was causing discomfort to the persons in the

vicinity of the alleged release. Id.

93. At the bottom of that NOV is a section where the City described

the action it proscribed CES to take:

You are hereby notified that the above violation(s) must be cor-

rected by: immediately and I agree as a Owner / Lessee / Occu-pant / Person Having Control or Employee / Agent / Represen-tative to provide within 10 calendar days from the date of thisnotice, a written description of corrective action taken and therequired documentation demonstrating that compliance has beenachieved for the violation(s); or agree to submit a Letter of In-tent to comply along with a corrective action plan for the allegedviolation(s). Your initials indicate you will provide the aforemen-tioned information to the City of Houston at the address listedabove. Id.

94. By issuing the NOV with no information whatsoever about the

allegedly wrongful conduct, the City makes complying with the curative ac-

tion section of the NOV impossible. A company cannot correct an alleged

violation without knowing what the violation is. Likewise, a company cannot

provide a written description of the corrective action taken or a letter of in-

tent describing what corrective action is planned without specific information

about what the constitutes the alleged violation.

17



18/25

3.4 Cause of Action 42 U.S.C. 1983

95. The Citys odor ordinance is void for vagueness. A statute is void

for vagueness if it does not define the offense with sufficient definiteness that

an ordinary person can understand what conduct is prohibited and so that

the statute will not be enforced arbitrarily and discriminatorily. Kolender v.

Lawson, 461 U.S. 352, 357-58 (1983). A statute is also void for vagueness if

it does not provide an ordinary citizen sufficient notice that his conduct is

prohibited and fails to provide sufficient standards for enforcement. Bynum,

767 S.W.2d at 773. As the Supreme Court stated:

It is a basic principle of due process that an enactment is voidfor vagueness if its prohibitions are not clearly defined. Vaguelaws offend several important values. First, because we assumethat man is free to steer between lawful and unlawful conduct, weinsist that laws give the person of ordinary intelligence a reason-able opportunity to know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by not providingfair warning. Second, if arbitrary and discriminatory enforcementis to be prevented, laws must provide explicit standards for thosewho apply them.

Grayned v. City of Rockford, 408 US 104, 108 (1972).

96. Courts around the country have struck down ordinances like Hous-

tons as void for vagueness. See, e.g., Bakery Salvage Corp. v. City of Buffalo,

175 A.D.2d 608, 573 N.Y.S.2d 788 (1991) (invalidating city odor ordinance

as unconstitutional because offensive and noxious were too ill-defined

and it contained no objective standards to measure odors); City of Festus v.

Werner, 656 S.W.2d 286, 287 (Mo. App. 1983) (odor ordinance unconstitu-

18



19/25

tionally vague where there was no objective test and violations depended on

the vagaries of human responses to smells); Borough of Verona v. Shalit,

222 A.2d 145 (1966) (invalidating odor ordinance for vagueness).

97. The ordinance in question provides for a monetary penalty for

non-compliance. See Code of Ordinances 10-451. CES has a property inter-

est in the money the City seeks to take from CES for all alleged violations

of the ordinance. Board of Regents v. Roth, 408 U.S. 564, 571-72 (1971); see

also Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.), cert. denied, 474 U.S.

1019 (1986); Chauffeurs Training School, Inc. v. Riley, 967 F. Supp. 719,

729 (N.D.N.Y. 1997); Black v. Dallas County Bail Bond Bd., 882 S.W.2d

434, 439 (Tex. App. 1994); Brewer v. Collins, 857 S.W.2d 819, 823 (Tex.

App. 1993). By attempting to enforce an unconstitutionally vague ordinance

against CES, the City of Houston has deprived CES of its constitutionally

protected property rights without due process of law. See also Abdallas

Tavern v. Department of Commerce, 2003 WL 21454696 at *12 (Ohio App.)

(basing conclusion on other constitutional protections, such as due process

rights, the right to private property, and the right against the government

taking private property without just compensation).

98. The City did this upon the decision of a policymaker, the head

of the Bureau of Air Quality Control, pursuant to its official policy as laiddown in ordinances and as interpreted by the Bureau of Air Quality Control

and the Office of the City Attorney. The policy appears to have been to

delegate enforcement of the odor ordinance to the individual discretion of

19



20/25

particular inspectors, in violation of the Due Process Clause. Moreover, in

the alternative, the City is liable for failing to train its inspectors to use any

kind of reliable methodology in enforcing the ordinance. This makes the City

of Houston a proper defendant.

99. The Citys enforcement of the unconstitutional odor ordinance

has caused great damage to CES. Several of CESs customers have already cut

off business with CES in large part because of the continued odor complaints

that CES has received from the City. Moreover, the ongoing odor complaints

have been a driving factor in motivating the Attorney Generals civil suit

against CES according to the staff of the Attorney Generals office. The odor

ordinance is also the basis for several private class actions currently pending

against CES, in which neighborhood plaintiffs seek to use the ordinance to

support otherwise baseless claims against CES.

4 A temporary injunction is appropriate

100. A plaintiff seeking injunctive relief must demonstrate: (1) a sub-

stantial likelihood of success on the merits; (2) a substantial threat that

irreparable harm will result if the injunction is not granted; (3) that the

threatened injury outweighs the threatened harm to the defendant; and (4)

that granting a preliminary injunction will not disserve the public interest.

Clark v. Pritchard, 812 F.2d 991, 993 (5th Cir. 1987) (citing Canal Authority

of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974)).

101. There is a likelihood of success on the merits. As the cases

20



21/25

discussed above demonstrate, a municipal government may not deprive a

permitholder of rights under the permit without due process of law. And

it is clear that due process of law requires some pretermination proceeding.

Likewise, the cases demonstrate that a statute that, on its face and as ap-

plied, contains no standards at all for its enforcement and no way for those

subject to it to conform their actions to the law is unconstitutional.

102. Irreparable harm will result if the City is not enjoined. See Com-

plaint 63. CES cannot operate without wastewater service. The Citys

latest attempt to terminate that service would, again, leave CESs clients

unable to operate their own industrial processes. And CES will be unable to

regain the customers and employees that it will lose during any interval in

which the City shuts down its service. CES is already suffering that harm

from enforcement of the Citys odor ordinance.

103. The harm to CES outweighs any potential harm to the City of

Houston. The City has failed to demonstrate that any harm at all will result

or is resulting from CESs activities. When the City had the chance to

demonstrate such harm at its own administrative hearing, it wholly failed to

do so. See Complaint 2227. Later, even the Citys own hearing officer

released a decision holding that the City had failed to prove an imminent

danger to the health of City employees or the public justifying the Citysemergency shutdown. And because the Citys method for determining odor

nuisances is so unscientific, it is impossible for the City to show any harm

from any such nuisances. For the same reasons, granting an injunction will

21



22/25

serve the public interest. See Complaint 6465.

104. The Citys latest attempt to terminate CESs wastewater service

unlawfully, coupled with the Citys ongoing efforts to enforce an unconsti-

tutionally vague odor ordinance against CES, demonstrate that the Citys

lawless treatment of CES is a chronic and ongoing problem. CES respect-

fully requests that this Court take continuing jurisdiction over the dealings

between CES and the City of Houston and require the City to obtain prior

leave from this Court before taking further action against CES.

5 Further prayer for relief

105. In addition to the relief prayed for in paragraph 67 of the Original

Complaint, CES respectfully requests:

1. A preliminary injunction (a) preventing the City from enforcing En-

dorsement TTO against CES; (b) preventing the City from enforcing

its odor ordinance against CES; and (c) preventing the City from tak-

ing further regulatory action against CES without first obtaining leave

of this Court;

2. A permanent injunction (a) preventing the City from enforcing En-

dorsement TTO against CES; (b) preventing the City from enforcing

its odor ordinance against CES; and (c) preventing the City from fur-

ther denying CES procedural due process in the future; and

3. Compensatory and punitive damages, attorneys fees, expert costs, and

22



23/25

costs of court to the fullest extent permitted by law for damage caused

by the Citys violations of1983 pled in this First Amended Complaint.

23



24/25

DATED: November 5, 2009

Respectfully submitted,

/s/ K.A.D. CamaraK.A.D. CamaraTexas Bar No. 24062646

Southern District Bar No. [email protected]

Attorney-in-Charge for the Plaintiff

Timothy Paul NybergTexas Bar No. [email protected]

Kent RadfordTexas Bar No. [email protected]

Camara & Sibley LLP

2339 University BoulevardHouston, Texas 77005713-893-7973713-893-1131 (fax)

Attorneys for the Plaintiff

24



25/25

Certificate of Service

I hereby certify that I served this document on counsel of record as listedon the Courts CM/ECF system by CM/ECF on December 17, 2009. I alsoserved a paper copy on counsel of record by courier with physical exhibitsenclosed on December 17, 2009.

/s/ K.A.D. CamaraK.A.D. Camara

25


Documents

7- 12.17.09 First Amended Complaint