County Attorney vs. Prominent Houstonians: Righteous Cause or Shakedown?
In case you hadn't noticed, there's a war going on in River Oaks over a subject we're sure every human being finds endlessly fascinating: chemicals from dry cleaners leaching into groundwater.
Who's cleaning up here?
On one side are the heirs to the Melcher family fortune, who own the property at 4202 San Felipe leased by River Oaks cleaners, where fancy people get their duds done. They say they are the targets of a shakedown by Harris County Attorney Vince Ryan's office, which is committing extortion masquerading as environmental protection. On the other side are the county attorneys and the Texas Commission on Environmental Quality, who say the Melchers are responsible for their tenants allegedly allowing hazardous chemicals to get into the groundwater. These officials are demanding sanctions, which could range from $50 to $25,000 per day, from the day the contamination was discovered. Ka-ching.
Here's a cheat sheet to help you figure out which side you're on.
The Background: In 1996, state environmental officials investigated groundwater contamination at the site of a now-defunct dry cleaners, Hallmark, across the street from River Oaks Cleaners. County officials say investigators subsequently discovered evidence that contamination was coming from River Oaks Cleaners as well. The Melchers granted permission allowing the Texas Commission on Environmental Quality to install monitoring wells on their property in 2007. In 2011, the County Attorney's Office, on behalf of the county and the TCEQ, sued the Melchers and the owners of Hallmark. Hallmark's owners joined the state's voluntary Dry Cleaner Remediation Program and, in 2012, settled claims brought by the County Attorney's Office. The Melchers never opted into the remediation program.
The Accusations, State-and-County-Style: The County's original complaint states that while property owners and dry cleaner operators "are capable of behaving as responsible corporate citizens and environmental stewards, many have not done so." The complaint accuses a whole host of defendants, including Yvonne Melcher and her son, Trey, and several entities tied one way or another to Melcher-controlled entities that own the property, of having "failed to take any action to contain, control, and/or remdiate the contamination from the [River Oaks Cleaners Site] to date. Contaminants continue to release, and/or threaten to release, the groundwater on a daily basis." The County demanded civil penalties, reimbursement for "investigation and remediation of the Site," attorneys' fees and court costs. (The Melchers are heirs of philanthropists LeRoy and Lucille Melcher. Lucille "made top bids for youngsters' animals at the Houston Livestock Show, funded numerous scholarships, supported Tourette's syndrome research and gave to the University of Houston for public television, according to a Chron obit).
The Accusations, Melcher-and-Dolcefino Style: The Melchers have hired former KTRK investigative reporter Wayne Dolcefino as their spokesperson. Dolcefino points out that, despite all the tree-hugging environmental stewardship business in the original complaint, the County didn't actually order the Melchers to fix the problem. That betrays the County's real intent, he says. The County waited a year to seek an injunction ordering the owners to test the soil and groundwater and submit an abatement plan to the TCEQ. He also notes that the County hired outside counsel to help litigate -- to the tune of $900 an hour. (Owens says state law permits that amount, but caps the amount outside attorneys can recover, and claims that, when all is said and done, those attorneys aren't really getting $900 an hour.)
The Extent of the Contamination: This is unclear. We asked the Attorney General's Office, which represents the TCEQ in the suit, for a basic explanation of just how bad things are. Are we talking Three Mile Island, or is this more consistent with unlawful discharges committed by dry cleaners around the country? The AG's Office was unable to tell us.
Assistant County Attorney Rock Owens tells us that "the TCEQ has installed monitoring wells on and around the Melcher property to try and determine the extent of contamination. The TCEQ's investigation has been hindered in part by the fact that the owner/operators have not enrolled the site into the Texas Dry Cleaner Remediation Program that would allow the State to use the program funds to investigate and remediate the problem itself." That's why, Owens says, the County is seeking an injunction "to perform the additional testing and any necessary remediation."
But Dolcefino says the only pollution is in the form of noxious odors coming from the County Attorney's Office. He tells us that state law bars defendants in a civil action from joining the remediation program, and claims that the TCEQ never even filed an official complaint against the Melchers in the first place. The County Attorney's Office acted unilaterally and without just cause, he says. Dolcefino puts it like this: "If this was the old west, Vince Ryan would be wearing a bandanna to cover his face, because this is plain and simple highway robbery. I can smell BS a long way off, and this deal stinks. Someone should investigate whether Harris County is trying to clean up the environment or simply shake down people they think have money, regardless of the danger, and county commissioners have the power to stop this shakedown. Let's see if they do the right thing."
Trey Melcher provided this statement: "No government agency has ever fined us, penalized us, [or] sent any letter to us saying we ever did anything wrong or that our tenant, River Oaks Cleaners, had ever acted in bad faith at our San Felipe Center. Harris County and the State just decided to sue my deceased grandparents and us one day in what we think is an attempt to bankrupt our family, and force the sale of our San Felipe property. Additionally, Harris County authorized an outside law firm at a rate of $900 an hour to hire additional litigators to try and shake us down in this blatant money grab. This is legalized mafia-esque extortion."
Defendants Behaving Badly: The Melchers forced a mistrial in 2013 after one of their expert witnesses changed his opinion while on the stand. According to court records, Douglas Carvel said in a deposition that he did not have an opinion "on the ultimate issue in the case" -- whether chemicals on the site came from River Oaks Cleaners, Hallmark or elsewhere. But when he took the stand in October 2013, he testified that there was no way River Oaks Cleaners could have caused the problem. The Melchers' attorneys did not previously notify the County Attorney's Office, which is required. Judge Elaine Palmer granted the County's motion for sanctions: The Melchers were ordered to pay $46,000.
Rock Owens told us, "In the 30 years I have been with the County Attorney's Office, this is the first time I've ever seen a defendant go to such extraordinary lengths to prejudice a trial."
The Melchers' response to the motion for sanctions argued that granting a mistrial in that circumstance was unprecedented. The response claims that "there is no evidence of any bad faith" and that imposing heavy sanctions would prevent the Melchers "from being able to maintain their defense of this matter, raising constitutional issues of due process."
The parties are now in mediation, but we don't expect a speedy resolution. We'll keep you posted.