USOR Site PRP Group v. A&M Contractors, Inc. et al

Filing 4082

ORDER ON MOTION FOR SUMMARY JUDGMENT granting #3186 Plaintiff's Cross-Motion for Partial Summary Judgment as to Defendant Bealine Service Co., Inc.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
USOR SITE PRP GROUP,
Plaintiff,
VS.
BEALINE SERVICE CO., INC.., et al,
Defendants.

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June 28, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-2441

ORDER ON MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION
Before the Court is the defendant, Bealine Service Co., Inc. (“Bealine”) motion for

summary judgment filed against the plaintiff, USOR Site PRP Group (“USOR”)1. The Court
notes that it has issued an omnibus memorandum opinion identifying and discussing undisputed
facts and as well, the rudiments of the applicable law, associated solely with the issue of liability
under the Comprehensive Environmental Response Compensation and Liability Act of 1980
(“CERCLA”) and the Texas Solid Waste Disposal Act (“TSDWA”). See [DE# 3890]. With that
memorandum opinion in place and the issue of general liability resolved, the Court will hereafter
addresses Bealine’s motion for summary judgment [DE# 3264].
II.

JURISDICTIONAL BASES
This suit was filed by USOR to collect response costs and expenses due to alleged

environmental contamination at the U. S. Oil Recovery Superfund Site (“USOR Site”) and the
MCC Recycling Facility located at 200 N. Richey and 400 N. Richey in Pasadena, Texas
respectively. On August 14, 2014, the USOR filed this complaint against hundreds of defendants
asserting that they are collectively responsible, under federal and state law, for response costs
1

The Court adopts the USOR Statement of Undisputed Material Facts, found in its several motions for summary
judgment that includes attached exhibits, in reaching its conclusion on the issue of liability.

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and expenses associated with remediating environmental contamination at the identified USOR
Sites.
Since the original complaint was filed, the USOR has amended its suit on two occasions,
the last on August 1, 2016. The USOR seeks contribution, cost recovery that has occurred or will
occur, and declaratory relief under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (“CERCLA”) and cost recovery under the Texas Solid Waste Disposal
Act (“TSWDA”). See [42 U.S.C. §§ 9601 et. seq.; Tex. Health & Safety Code Ann. §§ 361.001
et. seq., respectively]. This Court has jurisdiction to entertain the issues raised by the USOR
under both CERCLA and TSWDA.
III.

HISTORICAL BACKGROUND INCLUDING ADMINISTRATIVE RECORD
The USOR consists of firms, corporations, associations, and/or partnerships. The EPA

has determined that the members of the USOR are “persons” as defined by Section 101(21) of
CERCLA, 42 U.S.C. § 9601(21). See (a) [Removal Action AOC, Conclusions of Law and
Determinations “c,” p.7 (Dkt. No. 1429-1, at 7)]; (b) [AOI-1 RI/FS AOC Conclusions of Law
and Determinations ¶ 28 (Dkt. No. 1429-2, at 8)]; and, (c) [Second Removal Action AOC,
Conclusions of Law and Determinations ¶ 23 (Dkt. No. 3187-1, at 6)]. Likewise, TCEQ has
determined that the members of the USOR are “persons” as defined by Section 361.003(23) of
the TSWDA for purposes of USOR’s action under Section 361.344 of the TSWDA, TEX.
HEALTH & SAFETY CODE ANN. § 361.003(23). See [TCEQ Approval Letter (Dkt. No. 31873)].
The members of the USOR are respondents to Removal Action AOC, AOI-1 RI/FS
AOC, and Second Removal Action AOC. The USOR is conducting response activities at the
USOR Site. See generally (a) [Removal Action AOC (Dkt. No. 1429-1)]; (b) [AOI-1 RI/FS AOC

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(Dkt. Nos. 1429-1 and 1429-2)]; (c) [Second Removal Action AOC (Dkt. Nos. 3187-1 and 31872)]; and, (d) [TCEQ Approval Letter (Dkt. No. 3187-3)].
The USOR Site consists of approximately 18 acres, located generally at the US Oil
Recovery facility at 400 N. Richey Street and the MCC Recycling facility at 200 N. Richey
Street in Pasadena, Texas, and EPA has determined the USOR Site is a “facility” as defined in
Section 101(9) of CERCLA, 42 U.S.C. § 9601(9). See (a) [Administrative Settlement Agreement
and Order on Consent for Removal Action, U.S. EPA Region 6, CERCLA Docket No. 06-10-11,
effective August 25, 2011 (“Removal Action AOC”), Definition “p.” at p.3, Finding of Fact “a.”
at p.4, and Conclusion of Law and Determination “a.” at p.7 (Dkt. No. 1429-1, at 3, 4, 7)]2; (b)
[Administrative

Settlement

Agreement

and

Order

on

Consent

for

Remedial

Investigation/Feasibility Study, U.S. EPA Region 6, CERCLA Docket No. 06-03-15 (“AOI-1
RI/FS AOC”), Definition “u.” at p.5, Finding of Fact p.6, ¶ 13, and Conclusions of Law and
Determinations at p.8, ¶ 25 (Dkt. No. 1429-2, at 5, 6, 8)]3; and, (c) [Administrative Settlement
Agreement and Order on Consent for Removal Action, U.S. EPA Region 6, CERCLA Docket
No. 06-11-16 (“Second Removal Action AOC”), at Definition “s.” at p.4, Finding of Fact “a.” at
p.4, and Conclusions of Law and Determinations, at p.6, ¶ 20 (Dkt. No. 3187-1, at 4, 6)].4
The USOR Site was an oil processing and waste treatment facility that received and
performed pretreatment of municipal and industrial Class I and Class II wastewater,
characteristically hazardous waste, used oil and oily sludges, and municipal solid waste. See (a)
[Removal Action AOC, Findings of Fact “a” and “c” at p.4 (Dkt. No. 1429-1, at 4)]; (b) [AOI-1
RI/FS AOC, Findings of Fact 13 and 15 at p.6 (Dkt. No. 1429-2 at 6)]; and, (c) [Second Removal
Action AOC, Findings of Fact ¶ 11 at p.5 (Dkt. No. 3187-1, at 5)]. The EPA has determined that
2

The Removal Action AOC is in the record as Exhibit A (Dkt. No. 1429-1).
The AOI-1 RI/FS AOC is in the record as Exhibit B (Dkt. Nos. 1429-2 and 1430).
4
The Second Removal Action AOC is in the record as Exhibit A (Dkt. Nos. 3187-1 and 3187-2).
3

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there has been a release or threatened release of hazardous substances from the USOR Site as
defined by Section 101(22) of CERCLA, 42 U.S.C. § 9601(22). See [(a) Removal Action AOC,
Findings of Fact “k.” – “r.” at p.6, and Conclusion of Law and Determination “b.” and “e.” at p.7
(Dkt. No. 1429-1, at 6, 7)]; (b) [AOI-1 RI/FS AOC, Conclusions of Law and Determinations ¶¶
26–27 (Dkt. No. 1429-2, at 8)]; (c) [Second Removal Action AOC, Findings of Fact ¶¶ 12–14,
Conclusions of Law and Determinations ¶¶ 21–22 (Dkt. No. 3187-1, at 5–6)]; and (d) [EPA,
Designation of Hazardous Substances, 40 CFR § 302.4 (Dkt. No. 1431-4)].5
The TCEQ has also determined that there has been a release or threatened release from
the USOR Site as defined by Section 361.003(28) of the TSWDA for purposes of USOR’s action
under Section 361.344 of the TSWDA, TEX. HEALTH & SAFETY CODE ANN. §
361.003(28). See [TCEQ Approval Letter (Dkt. No. 3187-3)].6 Moreover, it has approved the
USOR Site PRP Group’s response activities as the USOR Site. See [TCEQ Approval Letter [Dkt.
No. 3187-3)].
The USOR Site PRP Group has incurred and will continue to incur response costs as a result of
the release or threatened release of hazardous substances and solid waste at the USOR Site. See
(a) [Affidavit of Joe Biss dated October 26, 2016 (Dkt. No. 3187-4)]7; (b) [Removal Action AOC
(Dkt. No. 1429-1)]; (c) [AOI-1 RI/FS AOC (Dkt. Nos. 1429-1 and 1429-2)]; (d) [Second
Removal Action AOC (Dkt. Nos. 3187-1 and 3187-2)]; and (e) [TCEQ Approval Letter (Dkt.
No. 3187-3)].
The EPA has determined that the USOR’s response costs are necessary to address the
release or threatened release of hazardous substances from the USOR Site. See (a) [Removal
Action AOC, Conclusions of Law and Determinations “f,” p.7 (Dkt. No. 1429-1, at 7)]; (b)
5

The EPA Designation of Hazardous Substances is in the record as Exhibit G (Dkt. No. 1431-4).
The TCEQ Approval Letter is in the record as Exhibit B (Dkt. No. 3187-3).
7
The Affidavit of Joe Biss is in the record as Exhibit C (Dkt. No. 3187-4).
6

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[AOI-1 RI/FS AOC, Conclusions of Law and Determinations ¶¶ 30–31 (Dkt. No. 1429-2, at 8)];
and (c) [Second Removal Action AOC, Conclusions of Law and Determinations ¶ 25 (Dkt. No.
3187-1, at 6–7)]. As well, TCEQ has determined that the USOR’s response costs are necessary to
address the release or threatened release of solid waste from the USOR Site. See [TCEQ
Approval Letter (Dkt. No. 3187-3)]. The EPA has also determined that the USOR’s response
costs are consistent with the National Contingency Plan (“NCP”). See (a) [Removal Action
AOC, Conclusions of Law and Determinations “f,” p.7 (Dkt. No. 1429-1, at 7)]; (b) [AOI-1
RI/FS AOC Conclusions of Law and Determinations ¶ 31 (Dkt. No. 1429-2, at 8)]; (c) [Second
Removal Action AOC, Conclusions of Law and Determinations ¶ 25 (Dkt. No. 3187-1, at 6–7)].
The Court adopts the EPA’s findings as to response costs necessity and consistency.
IV.

SUMMARY JUDGMENT STANDARD
Both the USOR and certain defendants have filed motions and/or cross-motions for

summary judgment. These motions are not addressed in this Memorandum. However, the law
that controls the outcome is set forth hereinafter.
Summary judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A fact is “material” if
its resolution in favor of one party might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant
or unnecessary will not be counted.” Id. at 248. An issue is “genuine” if the evidence is sufficient
for a reasonable jury to return a verdict for the nonmoving party. Id. If the evidence rebutting the
motion for summary judgment is only colorable or not significantly probative, summary
judgment should be granted. Id. at 249-50; see also Shields v. Twiss, 389 F.3d 142, 149-50 (5th
Cir. 2004).

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Under Rule 56(c) of the Federal Rules of Civil Procedure, the moving party bears the
initial burden of “informing the district court of the basis for its motion and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue for trial.”
Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 - 87 (1986); Adams v.
Travelers Indem. Co. of Connecticut, 465 F.3d 156, 163 (5th Cir. 2006).
Where the moving party has met its Rule 56(c) burden, the nonmovant must come
forward with “specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S.
at 586-87 (quoting Fed. R. Civ. P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477
U.S. 317 (1986); and Adams, 465 F.3d at 164. To sustain the burden, the nonmoving party must
produce evidence admissible at trial showing that reasonable minds could differ regarding a
genuine issue of material fact. Anderson, 477 U.S. at 250-51; 255; Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). In deciding a summary judgment motion, “[t]he
evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255.
V.

DISCUSSION AND ANALYSIS
In its cross-motion for summary judgment, USOR asserts that Bealine was a

“transporter” as defined by CERCLA. Bealine does not dispute that it transported waste to the
USOR Site identified in this case. Instead, it seeks to limit its culpability by asserting that it
“was a transporter of the materials: nothing more . . . [it played] no part what so every in
selecting the delivery site . . .” Hence, the Court finds that Bealine is a transporter of hazardous
materials to the USOR Site.
In support of this conclusion, Bealine admits that it transported waste to the USOR Site
on behalf of: Alpha Technical Services Corporation, LC; Alvin Chemical Inc.; American Acryl

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L.P.; Baker Hughes Oilfield Operations, Inc.; BP Amoco Deer Park; BSMP Inc.; CITGO
Petroleum Corp. (CITGO Gasoline Terminal); Cole Chemical & Distributing, Inc. (Cole
Distribution Inc.); Dan-Loc Bolt & Gasket Co.; Domco Products Texas Inc.; The Dow Chemical
Company (Johann Haltermann, Ltd. and Dow Halterman); Ecolab Inc. (Corsicana Technology);
Eagle Construction and Environmental Services, LLC d/b/a SWS Environmental Services; Evans
Industries, Inc., as successor to Evans Houston Corp. (Evans Cooperage of Houston); First Wave
(New York); Formosa Plastics Corp., U.S.A.; Garner Environmental Services, Inc. (All Chem
Service, Inc.); Houston Dynamic Service, Inc.; Houston Independent School District; Houston
Marine Services, Inc.; Houston Unlimited, Inc.; HOYER Global (USA), Inc.; Inkjet, Inc.; IntraServices Inc.; KSolv, LP; KBR, Inc.; KMCO, LLP; LBC Houston, L.P.; Liquid Environmental
Solutions of Texas, LLC (US Liquids); Maverick Tube Corp., as successor to Texas Arai Inc.;
MEMC Pasadena, Inc.; METTON America, Inc.; Mitsui & Co. (U.S.A.), Inc. (Global Octanes
Corp.); National Oilwell Varco LP (Grant Prideco); ONEOK Hydrocarbon Southwest, L.L.C.;
Pan-Glo Services, LLC; Pepper-Lawson Construction, L.P.; PLT3 Liabilities Holdings, L.P.
f/k/a Oxid, L.P.; RaceTrac Petroleum, Inc.; Sea Lion Technology (SeaLion Chemical); South
Atlantic Services, Inc.; Southwest Shipyard, L.P.; The Sun Products Corporation (Huish
Detergents); Texas A&M University; Texas Couplings, L.P.; Texas General Land Office; Tidal
Tank, Inc.; TPC Group, LLC (Texas Petrochemicals Corp.); Tri-Star Protector Services Co.; TT
Barge; United States Steel Corporation (Delta Tubular); VLS Recovery Services; Weatherford
U.S., L.P. (P Chem Inc.); West Texas Drum Company; and Westway Terminal Co. LLC.
USOR has also identified the following additional entities for which Bealine transported
waste to the USOR Site: AAA Cooper Transportation d/b/a AAA Cooper Transportation, Inc.;
Aviana Foods; Control Solutions, Inc.; Clean Harbors San Leon, Inc. f/k/a DuraTherm, Inc.;

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Innovene Polyethylene N.A.; Laboratory Corp. of America Holdings; The Meadows Group,
LLC; Nalco Co. (f/k/a Ondeo Nalco and successor to Nalco Energy); Pilot Chemical Company;
Pilot Industries of Texas; Tasker Manufacturing Corp., Tasker Products Corp. and Tasker
Capital Corp.; United States Coast Guard; and Cellco Partnership d/b/a Verizon Wireless. This
list does not reveal all of Bealine’s customers.
Some of the waste Bealine transported to the USOR Site was RCRA hazardous waste
described on USOR Site Records as: “Hazardous Waste, Liquid, N.O.3.9.NA3082,III” (AAA
Cooper); “Waste Caustic alkali liquids, n.o.s., 8, UN 1919, II” (All Chem); “RQ, Waste
Corrosive Liquid, N.O.S., 8, UN1760, PGII (Acrylic Acid)” (American Acryl); “Combustible
Liquid, N.O.S. (contains diesel), Comb. Liquid, PG III” (Baker Hughes); “Hazardous Waste,
Liquid N.O.S. (Benzene) 9 NA3082 III” (Dow Haltermann); “RQ, Waste Flammable Liquids,
N.O.S. (Hexane), 3, 1993, PG I, EAG 128” (Formosa Plastics); “Waste Corrosive Liquid, [],
Inorganic, NOS (Sodium Hydroxide) 8 UN 3263 PG II” (Haltermann Custom Processing);
“Hazardous Waste Liquid, NOS (BENZENE) 9 NA3082 III” (Hoyer Global); “Paint related
material including paint thinning, 3, UN1263, PG III (Universal)” (InkJet); “WASTE
FLAMMABLE LIQUID, N.O.S. (WASTERWATER CONTAINING ORGANICS) 3, UN1963
III DOO1” (Johann Haltermann); “RQ, Waste Flammable Liquids N.O.S. (Styrene), 3, UN1993,
PG III” (K-Solv); “Waste Hazardous Liquid, Reactive, n.o.s., contains, (diesulfides, t-butyl
mercaptans) 9, UN3082, III” (KMCO); “RQ Waste Flammable Liquid, NOS (Petroleum
Distillate) 3 UN1993 III” (LBC Baton Rouge); “Waste Flammable Liquid, NOS (RTBA) 3
UN1993 III” (LBC Houston); “Waste Corrosive Liquid, Flammable, NOS (Sodium silicate,
Toluene) 8, UN 2920 PG II” (MEMC Pasadena); “Hazardous Waste Liquid, N.O.S. (Benzene) 8
NA3082 PG III” (ONEOK Hydrocarbons); “RQ: WASTE COMBUSTIBLE LIQUID; n.o.s.;

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COMBUSTIBLE LIQUID; 3,NA1993; PGIII (RQ=1,4-DIOXANE 100 LBS)” (Oxid); “Waste
Hazardous Liquid, nos, 9, NA3082, PGIII (P Chem); “Waste Corrosive liquid, acidic, inorganic
NOS 8, UN3264 PGII (Fluorosilicic acid)” (Pepper Lawson); “RQ WASTE CORROSIVE
LIQUID, BASIC, INORGANIC, N.O.S. 8, UN3266 PGIII” (Pilot Chemical); “WASTE
CORROSIVE LIQUID, INORGANIC N.O.S., 8, UN 3225, PGIII” (Pilot Industries);
“Hazardous Waste Solids, N.O.S.,9, NA 3077, III, (Benzene), RQ” (Southwest Shipyard); “RQ
Waste Corrosive Liquid N.O.S. 8, UN1760 PGIII (Sulfuric Acid Solution)” (Tasker
Manufacturing); “Hazardous Waste Liquid, N.O.S. (Benzene) 9 NA3082 PGIII” (Texas
Petrochemicals); “RQ, Hazardous Waste, Liquid, N.O.S. (Benzene) 9, NA3082 PG III” (TT
Barge Cleaning Mile 183); “RQ Hazardous Waste Liquid, N.O.s. (Benzene), 9 NA3082 PG III”
(TT

Barge

237);

and

“RQ

Waste

Corrosive

Liquid

Basic

Inorganic,

N.O.S.

(Hexamethyldiamine) 8 UN 3266 PG II” (VLS Recovery Services). See Exh. A, Bates Nos.
USOR-08202975 (AAA Cooper), USOR-12101070 (Pilot Chemical), USOR-STR0501624 (Pilot
Industries), USOR-STR0102399 (Tasker Manufacturing).
VI.

CONCLUSION
Based on Bealine’s admissions and the aforementioned, the evidence is undisputed that

Bealine was a transporter under CERCLA. Therefore, summary judgment is appropriate. See
Shields 389 F.3d at 149-150. The extent to which Bealine is liable for response costs is a matter
yet to be determined.

The Court, therefore, Grants USOR’s motion for partial summary

judgment.
SIGNED on this 28th day of June, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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