Lawsuit forces American Disposal to move

By Brian M. Cuaron - BCUARON@VICAD.COM
Sept. 24, 2011 at 4:24 a.m.

The result of an environmental lawsuit against American Disposal Services is forcing the company to look for a new location.

The company's current location in Victoria County is near U.S. Highway 59 and state Highway 185. Fordyce Holdings Inc. leased the land and alleged in a lawsuit filed Jan. 5 that American Disposal dumped piles of toxic materials onto the property's surface.

The lawsuit was filed in the 24th District Court in Victoria County and identified the materials on the property as eight metals listed in the Resource Conservation Recovery Act as well as high concentrations of volatile compounds and total petroleum hydrocarbons.

The Texas Railroad Commission inspected the site on Sept. 13, 2011, and found no violations of its rules, wrote Ramona Nye, commission spokeswoman, in an email.

American Disposal received a disposal well permit on June 2, 2011, for a new location near Farm-to-Market Road 1685 and Loop 463. The disposal well would inject non-hazardous waste from oil and gas production at a depth between 2,700 to 3,100 feet, said J.D. Ivey, president of American Disposal.

A confidential agreement that came out of a lawsuit against American Disposal required that the company leave its current Victoria County site by Dec. 31. In other words, the company cannot talk about the agreement other than what the law requires.

John Wells, real estate manager for Fordyce, said there was no set term on the original lease.

The agreement also required American Disposal to clean up and restore the land. The agreement required the company to plug its disposal well, too.

Wells and Ivey declined to comment about the agreement.

The lawsuit claimed putting large piles of toxic materials onto the surface of the property was a breach of the lease agreement.

Fordyce sent a notice to American Disposal on Aug. 17, 2010, about the breach of the lease, according to the lawsuit. American Disposal responded Sept. 16, 2010, via a letter.

American Disposal's letter "admitted that material being stored and treated at the leased premise was taken from a 'liquid waste stream,' containing 'oily constituents' from drilling operations," the lawsuit stated.

American Disposal's letter also said the company would continue to put the material on the grounds as part of its treatment and storage operations.

As a result, Fordyce sent a lease-termination notice to American Disposal on Dec. 10, 2010, the lawsuit said. The notice gave American Disposal 90 days to plug its wells, remove its equipment and restore the premises to the condition it had before the company constructed on it.

The confidential agreement that settled the matter was signed by Ivey on Feb. 8. Robert Briggs, president of Fordyce, signed the agreement on Feb. 14, which is when the agreement is said to have taken effect.

The agreement wasn't filed with the 24th District Court until Sept. 15. Fordyce attorney Keith W. Lapeze filed the agreement. NEW APPLICATION

As American Disposal prepared to move, it took out a disposal well, or W-14, permit application signed by Austin Ivey, a company manager and son of J.D. Ivey, and dated Feb. 17. The Texas Railroad Commission, which handles such applications, received it on Feb. 18.

However, American Disposal took out a required public notice regarding the application in the Victoria Advocate on Feb. 10.

The railroad commission required American Disposal to provide another public notice that said the well was a "commercial disposal well." The notice was published in the Advocate on April 28. PERMIT REGULATIONS

Those opposing American Disposal's W-14 permit point to the railroad commission's website.

According to the website, one of the eligibility requirements is that the operator must have no "outstanding compliance problems applicable to the proposed injection operation."

Yet private litigation against an applicant for a disposal well permit has no bearing on how the railroad commission processes an application, Nye wrote.

She said failure to comply with conditions in the disposal well permit may result in penalties or the permit's cancellation.

A spokesman for Victoria Residents for a Clean Water Community, formerly known as Citizens Against the Dump, said what happened at American Disposal's current site is why the group doesn't want it moved to the proposed location.

Spokesman Ken Roehl said water from the proposed site flows down to the Guadalupe River, Victoria's primary water source.

"There's just too much at stake here," Roehl said.



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