Harris County’s Original Petition Page 1

Harris County v. The Kroger Co.
CAUSE NO. ___________

HARRIS COUNTY, TEXAS,
Plaintiff,

and the

STATE OF TEXAS
Acting by and through the Texas
Commission on Environmental Quality,
a Necessary and Indispensable Party

v.

THE KROGER CO.
Defendant.
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IN THE DISTRICT COURT OF






HARRIS COUNTY, TEXAS





_______ JUDICIAL DISTRICT
HARRIS COUNTY’S ORIGINAL PETITION

Plaintiff, Harris County, Texas files this Original Petition in this environmental
enforcement action complaining that The Kroger Co. violated the Solid Waste Disposal Act and
the Texas Clean Air Act. Harris County seeks civil penalties and attorney’s fees.
1. DISCOVERY AND RELIEF REQUESTED
1.1. Pursuant to Texas Rule of Civil Procedure 190.1, Harris County will conduct
discovery under a Level 2 Discovery Control Plan. Tex. R. Civ. P. 190.3.
1.2. Plaintiffs seek monetary relief over $200,000 but not more than $1,000,000. Tex.
R. Civ. P. 47(c)(4).
2. AUTHORITY TO SUE
2.1. Plaintiff, Harris County, Texas, brings this cause of action by and through its
County Attorney as authorized through a formal order of its governing body, the Commissioners
Court of Harris County, Texas, issued on March 2, 2014.
6/30/2014 9:41:51 AM
Chris Daniel - District Clerk Harris County
Envelope No. 1677409
By: Sharon Carlton
2014-37673 / Court: 189


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Harris County v. The Kroger Co.
2.2. Harris County brings this action pursuant to § 7.351 of the Texas Water Code for
violations of Chapters 361 and 382 of the Texas Health and Safety Code. Tex. Water Code §
7.351.
3. PLAINTIFF
3.1. Plaintiff Harris County, Texas is a political subdivision of the State of Texas.
3.2. The State of Texas (State), acting on behalf of the Texas Commission on
Environmental Quality (TCEQ or Commission) is a necessary and indispensable party to this
lawsuit pursuant to § 7.353 of the Texas Water Code.
4. DEFENDANT
4.1. The Kroger Co. (Defendant) is a publicly held company headquartered in the
State of Ohio doing business in Harris County, Texas. It may be served by serving its registered
agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company at 211
E. 7th Street, Suite 620, Austin, Texas 78701-3218, or wherever it may be found.
5. JURISDICTION AND VENUE
5.1. This Court has jurisdiction over the case and venue is proper in Harris County
because this is an action to enforce Chapters 361 and 382 of the Texas Health and Safety Code
and the TCEQ rules promulgated thereunder and all of the events or omissions giving rise to the
claims occurred in Harris County. See Tex. Civ. Prac. & Rem. Code § 15.002(a)(1).






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Harris County v. The Kroger Co.
6. APPLICABLE LAW
I. The Solid Waste Disposal Act
Purpose and Authority
6.1. Chapter 361 of the Texas Health and Safety Code is known as the Solid Waste
Disposal Act. Tex. Health & Safety Code § 361.001. The purpose of the Solid Waste Disposal
Act is to “safeguard the health, welfare, and physical property of the people and to protect the
environment by controlling the management of solid waste . . . .” Id. at § 361.002(a).
6.2. The Solid Waste Disposal Act grants jurisdiction to the Commission to “manage[]
municipal solid waste . . . and coordinat[e] municipal solid waste activities.” Id. at § 361.011.
6.3. The Solid Waste Disposal Act authorizes the TCEQ to adopt rules to “establish
minimum standards of operation for the management and control of solid waste . . . .” Id. at
§ 361.024. The TCEQ has promulgated rules based on that authority, found in Chapter 330 of
Title 30 of the Texas Administrative Code (TAC). See 30 TAC § 330.1 et seq.
Definitions
6.4. “Container means: “Any portable device in which a material is stored,
transported, or processed.” 30 TAC at § 330.3(34).
6.5. Discharge “[i]ncludes deposit, conduct, drain, emit, throw, run, allow to seep, or
otherwise release, or to allow, permit, or suffer any of these actions or omissions.” Id. at
§ 330.3(39).
6.6. “Disposal” means: “The discharge, deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous waste (whether containerized or uncontainerized) into
or on any land or water so that such solid waste or hazardous waste or any constituent thereof


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may enter the environment or be emitted into the air or discharged into any waters, including
groundwater.” Id. at § 330.3(44).
6.7. “Industrial solid waste” means solid waste resulting from or incidental to a
process of industry or manufacturing, or mining or agricultural operations.” Tex. Health &
Safety Code at § 361.003(16).
6.8. “Municipal Solid Waste” (MSW) means “[s]olid waste resulting from or
incidental to . . . commercial . . . activit[y], including garbage, rubbish . . . and all other solid
waste other than industrial solid waste.” Id. at § 330.003(88). See also Tex. Health & Safety
Code at § 361.003(20).
6.9. “Nuisance” means: “Municipal solid waste that is stored, processed, or disposed
of in a manner that causes the pollution of the surrounding land, the contamination of
groundwater or surface water, the breeding of insects or rodents, or the creation of odors adverse
to human health, safety or welfare.” 30 TAC at§ 330.3(95).
6.10. “Processing” means: “Activities including, but not limited to, the extraction of
materials, transfer, volume reduction, conversion to energy, or other separation and preparation
of solid waste for reuse or disposal, including the treatment or neutralization of waste, designed
to change the physical, chemical, or biological character or composition of any waste to
neutralize such waste, or to recover energy or material from the waste, or render the waste safer
to transport, store, dispose of, or make it amendable for recovery, amenable for storage, or
reduced in volume.” Id. at § 330.3(117).
6.11. “Putrescible waste” means: “Organic wastes, such as garbage . . . that are capable
of being decomposed by microorganisms with sufficient rapidity as to cause odors or gases or


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are capable of providing food for or attracting birds, animals, and disease vectors.” Id. at
§ 330.3(119).
6.12. “Solid waste” means: “Garbage, rubbish, refuse, sludge from a wastewater
treatment plant, water supply treatment plant, or air pollution control facility, and other discarded
material, including solid, liquid, semi-solid, or contained gaseous material resulting from
industrial, municipal, commercial, mining, and agricultural operations and from community and
institutional activities.” Id. at § 330.3(145).
6.13. “Storage” means: “The keeping, holding, accumulating, or aggregating of solid
waste for a temporary period, at the end of which the solid waste is processed, disposed, or
stored elsewhere. . . . (B) Storage includes operation of pre-collection . . . as follows: (i) pre-
collection—that storage by the generator, normally on his premises, prior to initial collection . . .
.” Id. at § 330.3(150).
6.14. “Vector” means: “An agent, such as an insect, snake, rodent, bird, or animal
capable of mechanically or biologically transferring a pathogen from one organism to another.”
Id. at § 330.3(169).
II. TCEQ Municipal Solid Waste Rules
Putrescibles Must be Collected at Least Once a Week
6.15. “Municipal solid waste (MSW) containing putrescibles shall be collected a
minimum of once weekly to prevent propagation and attraction of vectors and the creation of
public health nuisances.” Id. at § 330.103(a).
6.16. “Collection should be made more frequently in circumstances where vector
breeding or harborage potential is significant.” Id.



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Harris County v. The Kroger Co.
Leakproof, Durable Containers Must be Used for Food Waste
6.17. “All solid waste containing food wastes shall be stored in covered or closed
containers that are leakproof, durable, and designed for safe handling and easy cleaning. Id. at
§ 330.211.
6.18. “Reusable containers “must be maintained in a clean condition so they do not
constitute a nuisance and to retard the harborage, feeding, and propagation of vectors.” Id. at §
330.211(2).
6.19. “Containers to be mechanically handled must be designed to prevent spillage or
leakage during storage, handling, or transport.” Id. at § 330.211(2)(B).
Requirements for Stationary Compactors
6.20. “Operational standards for permitted stationary compactors” include the
requirement that they “shall be operated and maintained in such a way as not to create a public
nuisance through material loss or spillage, odor, vector breeding or harborage, or other
condition.” Id. at § 330.215(1).
III. The Texas Clean Air Act
Purpose
6.21. The Texas Clean Air Act is found in Chapter 382 of the Texas Health and Safety
Code. The purpose of the Texas Clean Air Act is to safeguard the State’s air resources from
pollution by controlling or abating air pollution and emissions of air contaminants, consistent
with the protection of public health, general welfare, and physical property, including the
aesthetic enjoyment of air resources by the public and the maintenance of adequate visibility.
Tex. Health & Safety Code Ann. § 382.002 (Vernon 1992).



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Harris County v. The Kroger Co.
Unauthorized Emissions Prohibited
6.22. Except as authorized by a Commission rule or order, the Texas Clean Air Act
prohibits any person from causing, suffering, allowing, or permitting the emission of any air
contaminant or the performance of any activity that causes or contributes to air pollution. Id. In
addition, a person may not cause, suffer, allow or permit the emission of any air contaminant or
the performance of any activity in violation of Chapter 382 or of any TCEQ rule or order. Id. at
§ 382.085(a) (Vernon 1992 & Supp. 2003).
6.23. The Texas Clean Air Act authorizes the TCEQ to adopt rules to carry out the
intent and purposes of the Act. Id. at § 382.017 (Vernon 1992 & Supp. 2003). The TCEQ has
promulgated rules based on that authority, found in Chapters 101-22 of Title 30 of the Texas
Administrative Code.
Definition
6.24. “Air pollution” means “the presence in the atmosphere of one or more air
contaminants or combination of air contaminants in such concentration and of such duration that:
. . . interfere with the normal use or enjoyment of animal life, vegetation, or property.” Tex.
Health & Safety Code Ann. § 382.003(3)(B).
Regulatory Nuisance
6.25. Section 101.4 of Title 30 of the Texas Administrative Code, titled “Nuisance,”
prohibits any person from discharging 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 of animal life, vegetation, or property. 30
TAC at § 101.4.


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IV. Enforcement
6.26. Texas Health and Safety Code Chapters 361 and 382 are enforceable through a civil suit
seeking civil penalties under Chapter 7 of the Texas Water Code.
6.27. Harris County is also entitled to recover its attorney’s fees, court costs and investigative
costs in relation to this proceeding. Tex. Water Code § 7.108.
7. BACKGROUND AND INVESTIGATIONS
A. The Kroger Co. Stores
7.1. This suit concerns solid waste activities at two commercial grocery stores:
1. Kroger store #107 (Store #107) located at 5235 Aldine Mail Route and
2. Kroger store #600 (Store #600) located at 9325 Katy Freeway.
7.2. Both stores are located in an unincorporated area of Harris County.
7.3. Both stores are owned and operated by The Kroger Co.
7.4. At the time of the complaints and investigations set forth below, Store #107 had a
trash compactor located behind the store, bordering a chain link fence that abuts residential
homes located on Otterbury Drive, Houston, Harris County, Texas. (See Exhibit A.)
7.5. At the time of the complaints and investigations set forth below, Store #600 had a
trash compactor and grease trap located behind the store. (See Exhibit B.)
B. Store #107 Investigations
March 30, 2012
7.6. On March 30, 2012, the Harris County Pollution Control Services Department
(HCPCSD) received a complaint that “there is a terrible raw meat/blood odor present outside his
home,” and that the “odor is so strong he is unable to go outside,” and that “he believes the odor
is coming from a dumpster at Krogers . . . directly behind his home.”


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Harris County v. The Kroger Co.
7.7. In response, a HCPCSD investigator visited Store #107. At the store, the
Investigator “encountered a strong decaying putrescible waste odor before [he] even exited his
vehicle.” The investigator determined that the odor was coming from “a large trash compactor
located behind” the Kroger store. He observed “green colored liquid dropping from the bottom
of the compactor and running down the alley at least fifty feet.”
7.8. The investigator also visited the complaint’s home, where he: “detected the same
strong decaying putrescible waste odor.” He smelled the odor when he exited his vehicle, after
arriving at the complainant’s residence. He further “detect[ed] the strong decaying odor,” while
talking to the complainant in the back of his property. The odor caused him to gag several times
over the course of a fifteen minute conversation.
7.9. The HCPCSD issued a Violation Notice based on this investigation.
April 26, 2012
7.10. On April 26, 2012, the HCPCSD received a complaint that “there’s a very strong
odor coming from . . . the dumpsters . . . from the Krogers Food Store . . . .” The complainant
stated that “the smell of raw meat’s blood is so bad he can’t go outside his home.” The
complainant also mentioned that the “smell has been going on since yesterday.”
7.11. On April 26, 2012, a HCPCSD investigator responded to the complaint at the
5200 block of Otterbury Drive. The investigator “detected a very strong, rancid grease-like odor”
while in the front yard of complainant’s home. Following information from the complainant that
he believed the odor originated from the Kroger trash compactor located between the back of the
Kroger store and the complainant’s residence, the complainant and investigator went to the
backyard. There, the investigator smelled the same grease-like odor, but it was “stronger” than it
was in the front yard. From the complainant’s backyard, the investigator: “observe[d] a liquid


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leaking from the dumpster/compactor and pooling onto the pavement.” The complainant stated
that “he did not want to go outside because of [the] odor.”
7.12. The investigator then visited the Kroger store and “again detected the same rancid
grease-like odor.” He observed “the leak” and saw that it “was originating from the bottom of the
door to the compactor.” The investigator also noted that there was a “pool of putrescible liquid,
located at the end of the compactor [that] was approximately 5-ft x 25-ft in size and grayish in
color.”
7.13. The HCPCSD issued a Violation Notice based on this investigation.
May 23, 2012
7.14. On May 23, 2012, the HCPCSD received a complaint that “there is a strong rotten
food-like odor coming from Krogers dumpster behind complainant’s home,” and that the
“complainant is unable to go outside.” The complainant reported that the “odor has been present
since yesterday.”
7.15. On May 23, 2012, a HCPCSD Investigator drove up to the complainant’s
residence located in the 5200 block of Otterbury Drive. When she opened her vehicle window,
she was “immediately blasted with a strong, foul rotting garbage odor similar to the odor found
at a landfill.” She noted that “the odor never varied in intensity” and that it was “sickening.” The
investigator exited her vehicle and noted that the “odor was present all over the yard, in the
driveway, and on the front porch.” The complainant and a family member answered the door and
stated that the odor is “embarrassing, . . . sickening, and [that] they would not be able to go
outside at all.”
7.16. The investigator left the complainant’s home and went to the Kroger store. As she
approached the trash compactor, she began to smell the odor when she was 10 feet from the


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compactor, but the odor had “an even stronger intensity in that area” than at the complainant’s
property. She noted that there were “hundreds of flies in the area,” and there were “partially dry
stains all over the ground, from the dumpster to about 10 feet down stream in the parking lot.”
The investigator felt nauseous and got a headache from the odor, which she described as the
most disgusting odor [she has] smelled in a very long time.” The odor persisted in her vehicle
until at least the next day. Even the Store Manager, who was outside with the investigator, “had a
look of disgust on his face.”
7.17. The HCPCSD issued a Violation Notice based on his investigation.
July 20, 2012
7.18. On July 20, 2012, the HCPCSD received a complaint that there was “an
‘aggravating odor’ emanating from the dumpster at the Kroger Store located on Aldine Mail Rd.
near Highway 59 North. The complainant described it as “smell[ing] bad[ly].” The complainant
stated that s/he is planning a party tomorrow and does not want to have to have the guests
breathe this odor.”
7.19. On July 20, 2012, HCPCSD investigated the complaint, but did not find a
nuisance at the complainant’s residence.
7.20. The investigator visited the trash compactor at Store #107 and “observed a putrid
odor coming from the trash compactor.”
7.21. The investigator learned from the Co-Manager of the store that “the waste hauler
only picks up the waste after they call to service the compactor.” The investigator “observed a
quart of garbage juice leaked near the compactor service door.”




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Harris County v. The Kroger Co.

C. Store #600 Investigations
March 29, 2012
7.22. On March 29, 2012, the HCPCSD received a complaint that “the Kroger store at
the 9200 Block of I-10 West near Echo Lane has a very strong odor of rotten food coming from
[the] dumpster.” The complainant likened the odor to “spoiled meat and dairy products.”
7.23. On March 29, 2012, an HCPCSD investigator visited the rear of the Kroger store
at the 9300 block of Gaylord Street. The dumpster is located near the front entrance to
complainant’s business. The investigator “smelled an intermittent light odor of spoiled dairy and
meat,” from the front door of complainant’s business, but did not smell anything inside of the
business. As the investigator moved closer to the trash compactor behind Kroger, he observed
waste material resulting from activity at the Kroger store, including corn husks, and other food
and non-food items strewn about the outside of the compactor; saw a pool of putrescible liquid
below the latched door; and saw flies present. He noted that the smell of spoiled meat and dairy
was the strongest by the pool of putrescible liquid below the latched door. By speaking to the
Assistant General Manager of Store #600, the investigator learned that the compactor is emptied
“about every two weeks.”
7.24. The HCPCSD issued a Violation Notice based on this investigation.
April 4, 2012
7.25. On April 4, 2012, the HCPCSD received a complaint that “there is a strong odor
coming from the dumpster at Krogers adjacent to her place of business.”
7.26. On April 4, 2012, an HCPCSD investigator visited the rear of Store #600 at the
9300 block of Gaylord Street. The dumpster is located near the front entrance to complainant’s


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business. The investigator “smelled a moderate rotten food odor” outside the complainant’s
business, but did not smell anything inside of the business.
7.27. As the investigator moved closer to the trash compactor behind Kroger, he
observed a “stream of liquid leaking out of Kroger’s dumpster which contains putrescible
waste,” and a “pool formed underneath the leaking dumpster.” He saw flies and smelled “rotten
food odor most intensely around the pool” of liquid. The investigator spoke to the Assistant
General Manager and the General Manager of the store. The investigator learned that Kroger still
only “emptied [the dumpster] as needed, approximately every two weeks.”
7.28. The HCPCSD issued a Violation Notice based on this investigation.
8. FIRST CLAIM: DEFENDANT VIOLATED THE SOLID WASTE DISPOSAL
ACT

8.1. Defendant violated Section 7.101 of the Texas Water Code and Section
330.103(a) of Title 30 of the Texas Administrative Code by failing to have municipal solid waste
containing putrescibles collected a minimum of once weekly on at least March 29, 2012; and
April 4, 2012. This constitutes at least 2 days of violation. However, on information and belief,
Defendant failed to have municipal solid waste containing putrescibles collected a minimum of
once weekly on other weeks, including, but not limited to, July 20, 2012. Accordingly, the
number of violation days may increase. Each day of a continuing violation is a separate
violation. Defendant is liable for a penalty within the statutory range for each day of violation.
8.2. Defendant violated Section 7.101 of the Texas Water Code and Section
330.211(2) of Title 30 of the Texas Administrative Code by failing to store food wastes in a
covered or closed container that is leakproof, durable, and designed for safe handling and easy
cleaning and by failing to maintain reusable containers in a clean condition so the containers do
not constitute a nuisance and to retard the harborage, feeding, and propagation of vectors on at


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least March 29, 2012; March 30, 3012; April 4, 2012; April 26, 2012; and May 23, 2012. This
constitutes 5 days of violation. Each day of a continuing violation is a separate violation.
Defendant is liable for a penalty within the statutory range for each day of violation.
8.3. Defendant violated Section 7.101 of the Texas Water Code and Section 330.215
of Title 30 of the Texas Administrative Code by failing to operate and maintain its stationary
compactors in such a way as to not create a public nuisance through material loss or spillage,
odor, vector breeding or harborage, or other condition on at least March 30, 2012; April 26,
2012; and May 23, 2012. This constitutes at least 3 days of violation. Each day of a continuing
violation is a separate violation. Defendant is liable for a penalty within the statutory range for
each day of violation.
9. SECOND CLAIM: DEFENDANT VIOLATED THE TEXAS CLEAN AIR ACT

9.1. Defendant violated Section 7.101 of the Texas Water Code, Section 382.085 of
the Texas Health and Safety Code, and Section 101.4 of Title 30 of the Texas Administrative
Code by emitting odor of such strength and of such duration as to interfere with the normal use
and enjoyment of property on at least March 30, 2012; April 26, 2012; and May 23, 2012. This
constitutes at least 3 days of violation. Each day of a continuing violation is a separate violation.
Defendant is liable for a penalty within the statutory range for each day of violation.
10. CIVIL PENALTIES
10.1. Harris County requests that the Defendant be assessed a civil penalty of not less
than $50 nor more than $25,000 for each day of each violation, treating each day of a continuing
violation as a separate violation. Tex. Water Code § 7.102.




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Harris County v. The Kroger Co.
11. ATTORNEY’S FEES, COURT COSTS AND INVESTIGATIVE COSTS
11.1. Harris County asks this Court to award its attorney’s fees, court costs and
investigative costs incurred in relation to this proceeding. If there is an appeal to the Court of
Appeals or to the Texas Supreme Court, Harris County seeks its additional attorney’s fees and
costs on appeal. Tex. Water Code. § 7.108.
PRAYER

Harris County prays for judgment against Defendant as follows:

1. That Defendant be cited to appear and answer herein;
2. That upon trial, this Court grant judgment for appropriate civil penalties against
Defendant for violations of the Solid Waste Disposal Act plus post-judgment interest;
3. That upon trial, this Court grant judgment for appropriate civil penalties against
Defendant for violations of the Texas Clean Air Act plus post-judgment interest;
4. That upon trial, this Court grant Harris County its attorney’s fees, court costs and
investigative fees in connection with this action and any appeal, plus post-judgment
interest; and
5. That upon final trial, Harris County be granted all other relief, general or special, at law
and in equity, to which it may show itself justly entitled.










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Respectfully submitted,

VINCE RYAN, 99999939
Harris County Attorney

Lauren Druley Hudson
State Bar No. 24083213
Assistant County Attorney
Environmental Division
1019 Congress, 15th Floor
Houston, Texas 77002
Telephone: 713-274-5258
Facsimile: 713-437-4211
Email: lauren.hudson@cao.hctx.net

ATTORNEYS FOR PLAINTIFF,
HARRIS COUNTY, TEXAS

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