HOUSTON – A Texas appeals court has affirmed the dismissal without prejudice of claims lodged against two professional engineering firms, stemming from environmental contamination at the Union Pacific Englewood Rail Yard near residential neighborhoods in Houston.
On Sept. 19, Fourteenth Court of Appeals justices Ken Wise, Kevin Jewell and Frances Bourliot upheld the 281st District Court of Harris County, Texas’s ruling, in a case brought by more than 80 individuals versus Environmental Resources Management Southwest, Inc. and Pastor Behling & Wheeler, LLC.
Wise wrote the Court’s opinion in this case.
“In their first amended petition [filed in Harris County District Court], appellants allege claims against Pastor Behling & Wheeler and Environmental Resources Management Southwest for negligence, negligent misrepresentation and fraudulent concealment. Appellants identify PBW and ERM as Union Pacific Railroad’s ‘consulting geologists,’ who have ‘misrepresented the extent of the threat posed by [the pollution], concealing the true nature of the hazard in reports to the Texas Commission on Environmental Quality and communications with the public in order to obtain required permits. Regarding negligence, appellants allege that PBW and ERM ‘provided Geoscience services to Union Pacific (as required by TCEQ), specifically related to environmental and remediation projects.’ Appellants allege that PBW and ERM were negligent by failing to properly characterize, study, appraise, investigate, analyze, review and evaluate, and make proper recommendations regarding ‘geo-scientific components of the environmental and pollution remediation projects performed,” Wise said.
“Regarding negligent misrepresentation, appellants allege that PBW and ERM ‘made representations to governmental agencies and plaintiffs regarding the nature of the air, soil and water contamination caused by creosote and toxic chemicals and their efforts to mitigate and monitor air, soil and water contamination caused by creosote and toxic chemicals.’ Regarding fraudulent concealment, appellants allege that PBW and ERM ‘fraudulently concealed the scope and dangers of the air, soil and water contamination caused by creosote and toxic chemicals from plaintiffs, the government and the general public.’ Appellees ‘knew creosote and toxic chemicals contaminated air, soil and water on and near Union Pacific’s Englewood Rail yard’ and ‘knew of the hazards to human health posed by creosote and toxic chemicals, including the risk of disease, cancer and death.’ Finally, ‘to avoid liability and obtain operating permits from governmental agencies, defendants intentionally concealed the scope and dangers associated with the air, soil and water contamination caused by creosote and toxic chemicals.”
Both PBW and ERM submitted motions to dismiss the litigation, citing attached documents and affidavits from company officials testifying to “engineers and scientists performing tasks such as task management, data analysis, data management, data verification, oversight of field work, permit writing, procurement, report writing, research, engineering design, site inspections, subcontract bidding and subcontractor management.”
Geoscientist Eric Matzner added that “registered professional engineers created and stamped with their official seals numerous documents created during the course of PBW’s work for Union Pacific, including “as-built drawings” for a proposed remedial excavation, non-aqueous phase liquid collection system, and soil cap and recovery improvements.”
ERM submitted an affidavit from professional engineer Peter Gagnon, which explained “ERM previously provided ‘environmental consulting and engineering services’ for Union Pacific”, and testified, “The work ERM performed at the Houston Wood Preserving Works facility required special education, training and experience in the fields of environmental science and environmental engineering.”
Ultimately, the trial court granted PBW’s and ERM’s motions to dismiss and dismissed appellants’ claims against those defendants, without prejudice.
“Appellants contend that the trial court erred because appellants’ claims arise out PBW’s and ERM’s provision of geoscience services, not engineering services. Appellants note that the certificate of merit statute does not apply to the provision of geoscience services, and the geo-scientific components of reports submitted to the TCEQ were required to be signed and sealed separately by geo-scientists. Separate and apart from professional engineers, the regulation of professional geo-scientists is controlled by a different board and governed by a different chapter of the Occupations Code,” Wise stated.
“Appellants acknowledge that PBW and ERM hold dual registrations as professional engineering firms and professional geo-science firms. Appellants contend this case is most similar to RCS Enterprises, LP v. Hilton. In that case, the court of appeals affirmed the trial court’s denial of a motion to dismiss when the defendant initially performed engineering services by designing and creating a foundation plan for a home, but the plaintiffs’ claims were based on that same defendant’s subsequent inadequate inspection of the foundation as a third-party inspector.”
In referring to RCS Enterprises, Wise noted “the Court of Appeals found no abuse of discretion, while appellants urge the opposite conclusion here, i.e., that the trial court abused its discretion” and furthermore, “the Court held that Section 1001.003(c)(12) of the Occupations Code – which states that the practice of engineering includes ‘any other professional service necessary for the planning, progress, or completion of an engineering service’ – did not apply because the third-party inspection was not necessary to plan, progress or complete an engineering service.”
“Here, PBW’s and ERM’s affidavits and supporting documents amount to some evidence that their provision of geoscience services was necessary to plan, progress or complete engineering services. Both appellees adduced evidence that they performed engineering services in addition to geoscience services, and their services required special education, training and experience in the field of engineering. The trial court did not abuse its discretion by finding that appellants’ claims arise out of the provision of professional engineering services based on appellants’ allegations concerning appellees’ ‘pollution remediation projects’ and their ‘efforts to mitigate’ the contamination in the course of ‘obtain[ing] operating permits’ from the TCEQ,” Wise said.
“Appellants’ claims ‘implicate’ appellees’ provision of professional engineering services, and are ‘inextricably enmeshed’ and ‘factually intertwined’ with appellees’ provision of professional engineering services. Appellants’ sole issue is overruled. The trial court’s orders dismissing appellants’ claims against PBW and ERM are affirmed.”
Fourteenth Court of Appeals for the State of Texas case 14-23-00017-CV
281st District Court, Harris County, Texas case 2020-07396
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com