Commission Agenda Item No. 12
Presenter: Ted Hollingsworth

Briefing
San Jacinto River Waste Pits Settlement - $10 Million Appropriation
To Texas Parks and Wildlife Department for Environmental Grants
November 5, 2015

I.             Executive Summary: The 84th Texas Legislature appropriated $10 million to Texas Parks and Wildlife Department (TPWD) to be transferred to Harris County “for use along the San Jacinto River and in its watershed to mitigate the effects of environmental contamination and the effects of that contamination on natural resources and the public use of natural resources.”

II.     Discussion: In the mid-1960s, waste ponds were impounded adjacent to the lower San Jacinto River, for the disposal of wastes from a nearby paper mill. A number of contaminants were disposed of; the contaminants of primary concern being dioxins. Since the 1970s, subsidence, erosion and storms have resulted in the release of these contaminants into the San Jacinto River, two to three miles upstream from the San Jacinto Battleground. The waste ponds were designated a Superfund site in 2008. The Environmental Protection Agency installed a temporary cap over the ponds in 2011, and evaluation of the extent and impacts of the contamination continues.

In 2011, Harris County filed suit against the operators of the waste pits and the paper company that had generated the waste for environmental damages and reached a $29.2 million settlement with the operators. Of that sum, $10 million went to the State of Texas. In 2015, the 84th Texas Legislature appropriated those funds to TPWD to be transferred to Harris County “for use along the San Jacinto River and in its watershed to mitigate the effects of environmental contamination and the effects of that contamination on natural resources and the public use of natural resources.” TPWD and Harris County have since signed a Memorandum of Understanding (MOU) which further defines the purposes for which the funds may be used.

TPWD staff is working with Harris County officials and community advocates to establish a process under which proposals for projects would be submitted and considered for funding. The funds will be transferred to Harris County once a slate of appropriate projects is agreed upon. This award is expected to occur in the first half of 2016.

Attachments – 2

  1. Exhibit A – MOU between TPWD and Harris County
  2. Exhibit B – Map of San Jacinto

Commission Agenda Item No. 12
Exhibit A

MEMORANDUM OF AGREEMENT

BETWEEN THE TEXAS PARKS AND WILDLIFE DEPARTMENT

AND HARRIS COUNTY, TEXAS

This Memorandum of Agreement (Agreement) is made by and between the Texas Parks and Wildlife Department (TPWD) and Harris County, Texas (Harris County).

            WHEREAS, TPWD is an agency of the State of Texas under the policy direction of the Texas Parks and Wildlife Commission (Commission), charged with managing and conserving the natural and cultural resources of Texas and providing hunting, fishing and outdoor recreation opportunities for the use and enjoyment of present and future generations (Tex. Parks & Wild. Code §§1.011, §11.043(c)(6), §13.001, §13.005);

            Whereas, Harris County is a county of the State of Texas;

            WHEREAS, McGinnes Industrial Maintenance Corporation (MIMC) owned and operated a hazardous waste disposal facility in Harris County, Texas, that discharged waste into the San Jacinto River without a permit and Waste Management of Texas, Inc. (WMOT) owns MIMC.

            WHEREAS, on March 31, 2015, a Final Judgment was signed in the case styled and numbered Harris County, Texas, and the State of Texas, Acting by and Through the Texas Commission on Environmental Quality, vs. International Paper Company, McGinnes Industrial Maintenance Corporation, Waste Management, Inc., and Waste Management of Texas, Inc.; Cause No. 2011-76724-A in the 295th Judicial District Court of Harris County, Texas.

            WHEREAS, the Final Judgment orders Defendant MIMC to pay civil penalties, including $10 million to the State of Texas (the Funds);

            WHEREAS, the Funds were paid to the State of Texas via electronic funds transfer to the Office of the Texas Attorney General on April 9, 2015, and were transferred to the State of Texas general revenue fund on April 13, 2015;

            Whereas, the 84th Texas Legislature enacted House Bill (HB) 2, §27, which appropriated the Funds to TPWD for the purpose of transferring the Funds to Harris County;

            WHEREAS, HB 2, §27, further provided that the Funds were to be transferred to Harris County “only in accordance with an agreement between the Parks and Wildlife Department and Harris County for use along the San Jacinto River and in its watershed to mitigate the effects of environmental contamination and the effects of that contamination on natural resources and the public use of natural resources.”

            Now, therefore, TPWD and Harris County agree as follows:

1.         TPWD’s Obligations

a.   TPWD will transfer the Funds to Harris County as provided in this Agreement.

b.   The Funds may only be used for one or more of the following, as specified in HB 2, §27:

(1)  dissemination of information pertaining to marine life, wild animal life, wildlife values, and wildlife management;

(2)  scientific investigation and survey of marine life for the better protection and conservation of marine life;

(3)  propagation and distribution of marine life, game animals, and wild birds;

(4)  protection of wild birds, fish, and game;

(5)  research, management, and protection of the fish and wildlife resources of this state;

(6)  expansion and development of additional opportunities of hunting and fishing in state-owned land and water;

(7)  purchase, construction, and maintenance of boat ramps on or near public waters; and,

(8)  resource protection activities.

c.   The Funds shall be transferred only upon completion of and in accordance with one or more Project Agreements which shall address the project(s) to be funded, the method(s) for transferring funds in support of the projects, project oversight and review, required documentation of expenses associated with the projects, and other matters necessary to ensure sufficient public input and appropriate project oversight.

d.   Except as provided in this Agreement and in subsequent Project Agreement(s), TPWD shall have no other obligations to Harris County regarding the project(s).

e.   Nothing contained in this Agreement or subsequent Project Agreement(s) shall be deemed to unlawfully limit TPWD’s jurisdiction or ability to fully discharge its regulatory and statutory responsibilities regarding projects under applicable state or federal law and related regulations.

2.         Harris County’s Obligations

a.   Harris County will use the Funds solely as specified in HB 2, §27, in this Agreement, and in subsequent Project Agreement(s).

b.   Harris County agrees to comply with the following:

(1)  all applicable legal and regulatory requirements in connection with the Funds and the projects, including requirements imposed by state and federal laws and regulations;

(2)  all applicable accounting and recordkeeping standards in connection with the Funds and the projects.

3.   Audit.  Harris County understands that acceptance of the Funds under this Agreement and subsequent Project Agreements acts as acceptance of the authority of the State Auditor’s Office, or any successor agency, to conduct an audit or investigation in connection with the Funds. Harris County further agrees to cooperate fully with the State Auditor’s Office or its successor in the conduct of the audit or investigation, including providing all records requested. Harris County will ensure that this clause concerning the authority to audit funds received indirectly by contractors through Harris County and the requirement to cooperate is included in any contract awards. (See, Texas Government Code, section 2262.154.)

4.   General Provisions

a.   No Debt.  This Agreement shall not be construed as creating any debt on behalf of the State of Texas and/or TPWD in violation of Article III, Section 49 of the Texas Constitution. All obligations of TPWD in this Agreement are subject to the availability of funds. If funds are not appropriated or become unavailable, this Agreement may be terminated.  In the event of termination, TPWD and Harris County shall be discharged from further obligations, subject to the equitable settlement of their respective interests, accrued up to the date of termination.

b.   Notices. Notices under this Agreement must be in writing and directed to the person executing this Agreement for that Party with a copy to the following point of contact:

For TPWD:
Executive Director
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, Texas 78744
Phone: (512) 389-4636
Fax: (512) 389-4394

For Harris County:
County Attorney
1019 Congress 15th Floor
Houston, Texas 77002
Phone: (713) 274-5103

Either Party may modify the point of contact upon written notice to the other Party.

c.   Controlling Law. This Agreement is made and shall be interpreted under the laws applicable in the State of Texas.

d.   Conflict Resolution.  Harris County and TPWD agree to work together to resolve all disputes. If Harris County and TPWD are unable to resolve disputes, then the provisions of Texas Government Code, Chapter 2260, will govern the disputes, to the extent applicable.

e.   Assignment. This Agreement is not assignable without the prior written consent of the other party.

f.  Amendment. This Agreement may be amended by Agreement signed by both parties.

g.  No Waiver of Sovereign Immunity. Nothing in this Agreement shall constitute a waiver of sovereign or governmental immunity by TPWD or Harris County.

Signatures


Commission Agenda Item No. 12
Exhibit B

Map Showing Location of San Jacinto Waste Pits and San Jacinto Battleground

Map Showing Location of San Jacinto Waste Pits and San Jacinto Battleground