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

Filing 4083

ORDER ON MOTION for Summary Judgment as to Defendant Mexico Lindo Market.(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.
MEXICO LINDO MARKET, et al,
Defendants.

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June 29, 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, Mexico Lindo Market (“Mexico Lindo”), 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# 3280].
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

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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are collectively responsible, under federal and state law, for response costs 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. 3187-3)].
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 (Dkt. Nos.
1429-1 and 1429-2)]; (c) [Second Removal Action AOC (Dkt. Nos. 3187-1 and 3187-2)]; and, (d)
[TCEQ Approval Letter (Dkt. No. 3187-3)].

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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. 31871, 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 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
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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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) [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. 31873)]. 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
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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“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).
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

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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
Mexico Lindo, contends that it is not involved in activities that generate waste containing

“the substance which plaintiff alleges constitutes the hazardous component of the grease which was
supposedly deposited in the subject Superfund site.” Nevertheless, the defendant admits that its store
generates used cooking oil and waste from the butcher shop. The defendant argues, however, that
USOR has failed to produce evidence that its disposal waste was hazardous waste under CERCLA
and solid waste under the TSWDA.
The fact that Mexico Lindo argues that its waste did not contain hazardous substances is
irrelevant to its liability under CERCLA and the TSWDA. See 42 U.S.C. § 9601(14)(c); see also
[DE# 1431-4].

USOR’s hazardous substance claim is based on USOR Site records and the

unchallenged expert opinion of Dr. Kirk Brown [DE# 3187-5]. Dr. Brown’s affidavit states the
following:

I have reviewed the discovery records concerning the operations of the
Mexico Lindo Market (“Mexico Lindo”) which were provided by counsel.
In Mexico Lindo Market’s Answer to Plaintiff’s Second Amended
Complaint, Mexico Lindo stated, “MEXICO LINDO MARKET denies the
allegations in Paragraph 2155. MEXICO LINDO MARKET denies it ever
by contract, agreement, or otherwise arranged for disposal or treatment at
the USOR Site of any waste containing hazardous substance owned or
possessed by MEXICO LINDO MARKET. MEXICO LINDO MARKET
denies it ever by contract, agreement or otherwise arranged for transport
for disposal or treatment at the USOR Site of any waste containing
hazardous substance owned or possessed by MEXICO LINDO MARKET.
Mexico Lindo operates a food market, butcher shop, and taqueria facility
located at the 508 Houston Blvd., Houston, Harris County, Texas. Waste
streams generated by the facility included food wastes, spent grease,
warehouse trash, and food service trash, among others.
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In my opinion, based on the Mexico Lindo discovery records that I
reviewed, my knowledge and experience with grease trap and grease
disposal operations carried out by companies like Mexico Lindo during
the time period in question, and references provided by EPA and other
sources, the waste streams listed above contained one or more of the
following substances, all of which are hazardous substances under
CERCLA: chromium, copper, zinc, and polycyclic aromatic hydrocarbon
(“PAH”) compounds including anthracene, fluorene, fluoranthene,
naphthalene, phenanthrene, and benzo(a)pyrene, among others.
Further, I understand that the waste streams of Mexico Lindo, which other
evidence shows were disposed of at the USOR site, would have
contributed to the wastes that were present at the USOR site.
VI.

CONCLUSION
Mexico Lindo has failed to present competent evidence that disputes the records of the

USOR Site or the expert testimony of Dr. Brown. Simply asserting that it did not contract or
otherwise dispose of its waste at the USOR Site does not, in the face of undisputed evidence that
it did, create a disputed fact issue. “The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment. See
Corsair v. Stapp Towing Co., Inc., 228 F. Supp. 2d 795, 797 (S. D. Tex. 2002).
Based on the foregoing discussion, the Court is of the opinion and holds that Mexico
Lindo’s motion should be and it is hereby Denied. The undisputed evidence supports a motion
for partial summary judgment for USOR.

Therefore, the Court sua sponte enters partial

summary judgment for USOR.
SIGNED on this 29th day of June, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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