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4/29/2019 7:46 AM

Velva L. Price
District Clerk
Travis County
D-1-GN-19-002002
Cause No. D-1-GN-19-002002 Sandra Henriquez

STATE OF TEXAS, § IN THE DISTRICT COURT


§
Plaintiff, §
§
v. §
§ TRAVIS COUNTY, TEXAS
DAVID POLSTON and INLAND §
ENVIRONMENTAL AND §
REMEDIATION, INC., and INLAND §
RECYCLING, L.L.C., §
§
Defendants. § 53rd JUDICIAL DISTRICT

STATE’S OBJECTION TO AND RESPONSE IN OPPOSITION TO


DEFENDANTS’ MOTION FOR CONTINUANCE

The State of Texas (“State”), by and through its Attorney General, on behalf of the

people of Texas and the Texas Commission on Environmental Quality (“TCEQ”) files this

objection to and response in opposition to the motion for continuance filed by David

Polston, Inland Environmental and Remediation, Inc., and Inland Recycling, L.L.C.

(collectively “Defendants”) on April 26, 2019.

I. Summary

x The Texas Rules of Civil Procedure and Travis County Local Rules bar
continuance.

x Defendants have shown no cause for continuance.

x Issuance of the requested temporary injunction is necessary to prevent


ongoing contamination of Skull Creek, a tributary of the Colorado River,
and violations of State laws protecting public health and the environment.
II. Background

Following reports of black water and strong odors in Skull Creek, a tributary of

the Colorado River in Colorado County, Texas, TCEQ conducted on-site investigations

of the Altair Recycling Facility, owned and operated by Defendants. On April 10, 2019,

TCEQ received an analysis of sample results showing levels of contaminants (chromium,

zinc, copper, toluene, xylene, ethylbenzene, 1,2,4-trimethylbenzene, and 1,3,5-

trimethylbenzene, and petroleum hydrocarbons) exceeded those protective of human

health and the environment. On April 12, 2019, Travis County District Court Judge Scott

Jenkins issued a temporary restraining order barring Defendants from, among other

things, accepting waste and discharging any waste into any waters of the state. The

temporary restraining order expires on May 2, 2019.

Defendants were represented by Michael Roberts and Josh Romero, attorneys with

the law firm of Jackson Walker, L.L.P., at the April 12 hearing. Following the hearing, in

the office of the Court Administrator, Mr. Roberts and Mr. Romero agreed to hearing

settings on the long docket for April 29 and the short docket for May 2. On April 15, Mr.

Roberts and Mr. Romero told counsel for the State that, they intended to withdraw from

their representation of Defendants. Mr. Roberts and Mr. Romero further represented that

Defendants were “in the process of securing other counsel.” See Exhibit 1.

On April 22, 2019, Jim Smith emailed counsel for the State indicating that he now

represented Defendants and inquiring about the hearing settings for April 29 and May 2.

State’s Opposition to Motion for Continuance 2


State of Texas v. David Polston, et al.
See Exhibit 2. The following day, counsel for the State informed Mr. Smith and David

Polston that Defendants were in contempt of the temporary restraining order. See Exhibit

3. Mr. Roberts and Mr. Romero withdrew as counsel on April 23, 2019.

On April 25, 2019, counsel for the State and Defendants learned that this hearing

would likely be reached at the April 29 setting. After discussing with Mr. Smith, the

parties emailed the Court Coordinator requesting a long-docket setting for May 2 or May

3. See Exhibit 4. The following morning, the parties learned that the request was denied.

Later in the day on April 26, Victor Cardenas Jr., emailed State’s counsel that he

was retained by Defendants. Counsel for the State notified both Mr. Smith and Mr.

Cardenas of Defendants’ ongoing contempt of the temporary restraining order and

provided sample results later that day. See Exhibit 5.

Meanwhile, conditions in Skull Creek have only worsened. Rather than comply

with the temporary restraining order, Defendants have taken to bulldozing gelatinous

solid waste into the ground, emptying contaminated wastewater into a self-made

impoundment constructed from other onsite solid waste, and continued to accept waste

at the Facility. See Exhibits 6 and 7.

III. Plaintiffs object to the continuance, as it is barred by law.

Defendants’ request for continuance may not be heard. Tex. R. Civ. P. 251 (“No

application for a continuance shall be heard before the defendant files his defense, nor

shall any continuance be granted except for sufficient cause supported by affidavit, or by

State’s Opposition to Motion for Continuance 3


State of Texas v. David Polston, et al.
consent of the parties, or by operation of law.”) Because Defendants’ motion for

continuance is not supported by affidavit, nor have Defendants answered this lawsuit,

the Court should refuse this continuance outright. See Villegas v. Carter, 711 S.W.2d 624,

626 (Tex. 1986) (trials court generally do not abuse their discretion by denying

continuances to movants who fail to support motion with affidavit).

Moreover, the Defendants’ motion has not adhered to the Travis County Local

Rules, and therefore cannot be heard. Travis County Local Rule 3.3 (“Motions for

continuance should be set on the Central Docket. If a Central Docket setting cannot be

obtained under these rules, the continuance may be heard by the Duty Judge each

Thursday at 9:30 a.m. This Rule does not relieve a movant of the burden of delivering a

copy of the motion and giving notice of the hearing in the manner and within the time

provided by the Texas Rules of Civil Procedure.”).

IV. Defendants fail to show good cause for continuance.

While Defense counsel purports to be new to this case, Defendants are not.

Previous Defense counsel agreed to the April 29 setting on April 12. Defendants were

aware of both the April 29 setting and the need for counsel other than Mr. Roberts and

Mr. Romero to represent them at that hearing on April 15, if not sooner. See Exhibit 1.

“A lack of diligence on the part of a party or its attorney is sufficient grounds for denying

a motion for a continuance.” Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 758 (Tex. App.—

Texarkana 2017, pet. dism’d) (referencing McGrede v. Coursey, 131 S.W.3d 189, 198 (Tex.

State’s Opposition to Motion for Continuance 4


State of Texas v. David Polston, et al.
App.—San Antonio 2004, no pet.)). Defendants failure to prepare for the April 29 setting

is not good cause to continue the temporary injunction hearing.

Defendants have also not shown that they are not at fault for the withdraw of

previous counsel. Shadoian v. Shook, 2018 WL 3625766, at *2 (Tex. App.—Austin July 31,

2018, no pet.) (“A party who seeks a continuance based on the withdrawal of counsel

must first show that his attorney’s withdrawal was not due to the moving party’s fault or

negligence.”); see also Tex. R. Civ. P. 253 (“absence of counsel will not be good cause for a

continuance or postponement”). Additionally, both Mr. Smith and later Mr. Cardenas

were aware of the setting prior to undertaking representation.

V. A Temporary Injunction is necessary to prevent ongoing contamination and


violations of State law.

Most importantly, the hearing should go forward given the severity of the ongoing

violations of State environmental laws and Defendants’ contempt of the temporary

restraining order. TCEQ investigators have documented Defendants ongoing contempt

of Judge Jenkins’s directive to contain open and spilling waste at the site, stop accepting

waste, and stop discharging waste into Skull Creek. See Exhibits 6 and 7. Defendants

continued to accept waste. See Exhibit 7. Conditions at Skull Creek have only worsened

since the April 12 order. It is so bad, that at certain parts of the facility, black material

oozes up from the ground. See Exhibits 6 and 7.

State’s Opposition to Motion for Continuance 5


State of Texas v. David Polston, et al.
ACCORDINGLY, Counsel for the State requests the Court deny the Defendants

motion for continuance. Alternatively, the State requests that the hearing be reset for the

long docket on May 2, 2019, before the expiration of the temporary restraining order.

Further delay of the temporary injunction hearing may cause immediate and irreparable

harm to public health and the environment.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation

PRISCILLA M. HUBENAK
Chief, Environmental Protection Division

PHILLIP LEDBETTER
State Bar No. 24041316
Assistant Attorney General
Phillip.Ledbetter@oag.texas.gov

/s/ J. Amber Ahmed


J. AMBER AHMED
Assistant Attorney General
State Bar No. 24080756
Amber.Ahmed@oag.texas.gov

AMY RODRIGUEZ
Assistant Attorney General
State Bar No. 24103107
Amy.Rodriguez@oag.texas.gov
State’s Opposition to Motion for Continuance 6
State of Texas v. David Polston, et al.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
ENVIRONMENTAL PROTECTION DIVISION
P.O. Box 12548, MC-066
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Facsimile: (512) 320-0911

ATTORNEYS FOR THE STATE OF TEXAS

State’s Opposition to Motion for Continuance 7


State of Texas v. David Polston, et al.
CERTIFICATE OF SERVICE

On April 29, 2019, a true and correct copy of the State’s Opposition to
Defendants’ Motion for Continuance was served on the following counsel by eservice
and email:

Darrel L. Barger
dbarger@hartlinebarger.com

Victor L. Cardenas Jr.


vcardenas@hartlinebarger.com

Pryce G. Tucker
ptucker@hartlinebarger.com

HARTLINE BARGER LLP


1980 Post Oak Blvd., Suite 1800
Houston, Texas 77056
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231

James D. Smith
Jim@smithtexaslaw.com

Smith Law Firm


550 Westcott Street, Suite 250
Houston, Texas 77007
Phone: (713) 652-3200
Fax: (713) 652-3201

ATTORNEY FOR DAVID POLSTON, INLAND ENVIRONMENTAL AND


REMEDIATION, INC., AND INLAND RECYCLING, L.L.C.

/s/ J. Amber Ahmed


J. AMBER AHMED
Assistant Attorney General
State’s Opposition to Motion for Continuance 8
State of Texas v. David Polston, et al.
EXHIBIT 1
Josh Romero Withdraw Email
Ahmed, Amber

From: Romero, Josh <Jromero@jw.com>


Sent: Monday, April 15, 2019 6:38 PM
To: Ledbetter, Phillip
Cc: Roberts, Michael; Abazari, Ali; Walters, Mark; Rodriguez, Amy; Ahmed, Amber; Billings-Ray, Kellie
Subject: Re: State v. David Polston, et al

Phillip—

WelearnedtodaythattheLCRAintendstojointhecaseasaplaintiff.BecausewerepresenttheLCRAinmanymatters,
wearewithdrawingfromthecase.

Iunderstandthatdefendantsareintheprocessofsecuringothercounsel.

Pleaseletmeknowifyouopposeourwithdraw.

Thanks,

Josh

SentfrommyiPhone

OnApr15,2019,at6:31PM,Ledbetter,Phillip<Phillip.Ledbetter@oag.texas.gov>wrote:

**RECEIVEDFROMEXTERNALSENDER–USECAUTION**
Gentlemen,

Pursuant to our agreement to set the temporary injunction hearing in this case more than fourteen
days from the issuance of the Temporary Restraining Order, I have drafted the attached Rule 11
Agreement which provides that the Temporary Restraining Order will remain effective longer
than fourteen days and expire on May 2, 2019. I would appreciate your returning a signed copy
to me expeditiously so that I can sign and file it of record in this case. 

Please also see attached the Writs of Injunction setting the temporary injunction hearing and
ordering the Defendants to show cause why Plaintiff’s application for temporary injunction
should not be granted. I intend to have the Defendants served with the Writs. However, I
request that you accept the copies I have provided with this email and waive further service of
process in this case. To that end, I have also attached an Acceptance of Service and Waiver of
Citation. If you are amendable, please return a signed copy with the Rule 11
Agreement. Otherwise, please let me know if you are unwilling to waive further service of
process. 

Thank you,

Phillip Ledbetter
Assistant Attorney General
Office of the Texas Attorney General
Environmental Protection Division
Phillip.Ledbetter@oag.texas.gov
1
(512) 475-4152

<Rule11reTRO.pdf>
<AcceptanceofServiceandWaiverofCitation.pdf>
<2019.04.15ShowCauseWritͲDavidPolston.pdf>
<2019.04.15ShowCauseWritͲInlandEnvironmentalandRemediationInc.pdf>
<2019.04.15ShowCauseWritͲInlandRecyclingLLC.pdf>

2
EXHIBIT 2
Jim Smith Representation Email
Ahmed, Amber

From: Jim Smith <Jim@smithtexaslaw.com>


Sent: Monday, April 22, 2019 4:20 PM
To: Ledbetter, Phillip
Cc: Ahmed, Amber; Roxanne Thomas; Rodney Cappel
Subject: State of TX v. Inland Entities | NOTICE OF REPRESENTATION

Importance: High

Phillip & Amber,

Please be advised that I was retained this afternoon to represent the Defendants in the matter that you filed a
couple of weeks ago. Obviously, I am a bit behind the 8-ball given that I was just hired, but my client is sending
me documents to review and I should be up to speed in the next day or two. I understand from reviewing the
Court’s docket that there is a hearing Monday April 29th and a second one on May 2nd. Can you please send me
the information relating to both as it seems strange that there are 2 hearings next week? Also, can you please
add me to your service list so that I am kept abreast of developments going forward?

Finally, my client learned today that the TCEQ obtained results from the sampling taken over the past couple
of months. Can you please forward those to me for my review on an expedited basis?

Thanks, Jim

ROX- please calendar a follow-up for Wednesday. Thx


JAMES D. SMITH | Managing Partner
550 Westcott Street, Suite 250
Houston, TX 77007-6040
T: 713 652 3200 | F: 713 652 3201
Jim@SmithTexasLaw.com |www.SmithTexasLaw.com

This message, and any attachments, is for the intended recipient(s) only, may contain information that is privileged, confidential and/or
proprietary and subject to important terms and conditions available at SmithTexasLaw.com/Disclaimer. If you are not the intended recipient,
please delete this message, call The Smith Law Firm at (713) 652-3200, or contact us electronically for assistance.


1
EXHIBIT 3
State’s Email to Jim Smith
Ahmed, Amber

From: Ahmed, Amber


Sent: Tuesday, April 23, 2019 1:59 PM
To: Jim Smith; Ledbetter, Phillip
Cc: Roxanne Thomas
Subject: RE: Inland- TCEQ Complaints

HiJim:

AftertheTROwasissued,TCEQconductedfollowͲupSitevisits.Duringthistime,TCEQpersonnelobservednumerous
violationsoftheTRO.Forexample,TCEQobservednumeroustrucksdeliveringwastestotheAltairFacility,including
combustibleliquids.Defendants’acceptanceofthiswasteisnotauthorizedbyanypermit.Additionally,TCEQobserved
wastesdischargingontothegroundfromvariouscontainersthatwereuncoveredand/orleaking.Further,TCEQ
observedliquidwasteinopenͲairbasinsthathadnotbeendrainedandplacedintocoveredcontainerswithno
leaks.Moreover,TCEQobservedthatDefendantsarecontinuingtoconductwasteͲvesselwashoutoperationsthatare
dischargingwastewatersintouncontainedareasoftheAltairFacility.Thisisnotintendedtobeanexhaustivelistof
TROviolatingactivities.

Youcangiveusacallat(512)475Ͳ4006at2.


J.AmberAhmed
AssistantAttorneyGeneral
EnvironmentalProtectionDivision
OfficeoftheAttorneyGeneralofTexas
direct(512)475Ͳ4006|fax(512)320Ͳ0911
amber.ahmed@oag.texas.gov

ConfidentialityNotice:Theinformationcontainedinthisemailandanyattachmentsisintendedonlyforthe
recipient(s)listedaboveandmaybeprivilegedandconfidential.Ifyouarenottheintendedrecipientandhavereceived
thismessageinerror,pleasenotifythesenderimmediatelyattheemailaddressaboveanddestroyanyandallcopiesof
thismessage.



From:JimSmith[mailto:Jim@smithtexaslaw.com]
Sent:Tuesday,April23,201910:56AM
To:Ledbetter,Phillip<Phillip.Ledbetter@oag.texas.gov>
Cc:RoxanneThomas<Roxanne@smithtexaslaw.com>;Ahmed,Amber<Amber.Ahmed@oag.texas.gov>
Subject:InlandͲTCEQComplaints
Importance:High

Phillip,

Thanks for contacting me and agreeing to arrange a call to discuss the TCEQ complaints regarding my client’s
compliance with the TRO. I just confirmed that Mr. Polston will travel to my office in Houston for the 2P
conference call to make it run smoother. In advance of the call, can you please share with me a list of complaints
the TCEQ has in terms of the TRO so that I can discuss with my client in advance of the call so that our call
will be more productive for all concerned?
1
Thanks, Jim
JAMES D. SMITH | Managing Partner
550 Westcott Street, Suite 250
Houston, TX 77007-6040
T: 713 652 3200 | F: 713 652 3201
Jim@SmithTexasLaw.com |www.SmithTexasLaw.com

This message, and any attachments, is for the intended recipient(s) only, may contain information that is privileged, confidential and/or
proprietary and subject to important terms and conditions available at SmithTexasLaw.com/Disclaimer. If you are not the intended recipient,
please delete this message, call The Smith Law Firm at (713) 652-3200, or contact us electronically for assistance.


2
EXHIBIT 4
State’s Email to Court Coordinator
Warren Vavra
Ahmed, Amber

From: Ledbetter, Phillip


Sent: Thursday, April 25, 2019 6:38 PM
To: Warren.Vavra@traviscountytx.gov
Cc: Ahmed, Amber; Jim Smith (Jim@smithtexaslaw.com); Tong, Irene; lauri.roberts@traviscountytx.gov
Subject: State v. David Polston, et al -- No. D-1-GN-19-002002
Attachments: 2019.04.12 TRO signed.pdf

Hello Mr. Vavra,

I represent the State of Texas in the above-referenced case. I am e-mailing to request an agreed, full-day (e.g.,
long docket) setting for a temporary injunction hearing. Counsel for the parties agree to such a setting on either
Thursday, May 2 or Friday, May 3, 2019.

The temporary injunction hearing currently has two settings, next week. First, the hearing is set on the Monday,
April 29th long docket at 9:00 a.m. Second, the hearing is set on the Thursday, May 2nd short docket at 9:00
a.m. The State has announced ready for both settings.

Both settings were made on the afternoon of Friday, April 12, 2019. You may recall, that was the day Judge
Jenkins granted the State’s request for a Temporary Restraining Order. That order set the temporary injunction
hearing on Thursday, May 2, 2019 at 9:00 a.m. See attached. After the order was signed, counsel for the
parties visited your office and requested a full-day setting. We agreed to the April 29th long docket setting
because we were advised, at the time, that our request for a long docket setting on May 2nd could not be
accommodated. However, it was our understanding that our case would not be reached on Monday, April
29th. Accordingly, the parties also agreed to set the hearing on May 2nd, and were advised to check back with
your office to inquire when a full-day hearing could be set. Therefore, I am sending this e-mail to inquire
whether the hearing may be set for a full-day on either Thursday or Friday next week.

I appreciate your attention and assistance. Please let me know if I can provide any information or address any
concerns.

Thank you,

Phillip Ledbetter
Assistant Attorney General
Office of the Texas Attorney General
Environmental Protection Division
Phillip.Ledbetter@oag.texas.gov
(512) 475-4152


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EXHIBIT 5
State’s Notice of Contempt Letter to Jim Smith

April 26, 2019

Mr. James D. Smith


Smith Law Firm
550 Westcott Street, Suite 250
Houston, Texas 77007
Jim@SmithTexasLaw.com

Via E-Mail

Re: Cause No. D-1-GN-19-002002; State of Texas v. David Polston, et al.; in the 53rd Judicial
District of Travis County

Dear Mr. Smith:

On April 12, 2019, the State of Texas, on behalf of the Texas Commission on
Environmental Quality (“TCEQ”), obtained a temporary restraining order (“TRO”) against your
clients, David Polston, Environmental and Remediation, Inc., and Inland Recycling, L.L.C.
(“Defendants”), related their ownership and operation of a waste processing facility located at
6254 Highway 71 South, Altair, Colorado County, Texas (“Site”). The TRO is enclosed with this
correspondence.

The TRO enjoins Defendants from violating Texas Water Code section 26.121 and Title
30 Texas Administrative Code sections 327.5, 335.2, and 335.4. Specifically, Defendants are
ordered to immediately cease and prevent all unauthorized discharges of waste from the Site;
immediately cease accepting any waste at the Site; and immediately cease waste-vessel washout
operations at the Site unless all liquid wastes are completely contained within a washout area on-
site. Furthermore, by April 16, 2019, Defendants were ordered to contain all waste at the Site in
covered containers, and to drain liquid-form waste from open-air containment basins and place
such waste in covered containers.

After the TRO was issued and served upon Defendants and their attorneys, TCEQ visited
the Site and witnessed conditions that are in direct violation of one or more of the ordering
provisions contained in the TRO. Enclosed for your review are copies of TCEQ photographs and
other documents showing violative conditions. Please note, punishment for contempt of the
court’s order carries a $500 fine and/or confinement in the county jail for up to six months. Tex.
Gov’t Code § 21.002(b).

P o s t O f f i c e B o x 1 2 5 4 8 , A u s ti n , Tex as 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • w w w. t e x a s a t t o r n e yg e n e r a l . g o v


Defendants are hereby notified they are in contempt of the TRO. The State demands
Defendants come into immediate compliance with the TRO. If Defendants decline to do so, the
State will be seeking a contempt action against Defendants for their willful disobedience of the
court’s orders and to coerce their compliance with the TRO.

Thank you for your consideration in this matter.

Sincerely,

/s/ Phillip Ledbetter


Phillip Ledbetter
Phillip.Ledbetter@oag.texas.gov

J. Amber Ahmed
Amber.Ahmed@oag.texas.gov

Amy Rodriquez
Amy.Rodriquez@oag.texas.gov

Assistant Attorneys General


Office of the Attorney General of Texas
Environmental Protection Division
P.O. Box 12548, MC 066
Austin, Texas 78711-2548
Phone: (512) 463-2012
Fax: (512) 320-0911

Enclosures

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EXHIBIT 6
Jason Ybarra Affidavit
EXHIBIT 7
Trey Thumann Affidavit