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

Filing 4114

ORDER ON MOTION FOR SUMMARY JUDGMENT denying #3202 Defendant Atlas Texas Food & Beverages, LLC MOTION for Summary Judgment.(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.
A&M CONTRACTORS, INC., et al,
Defendants.

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July 21, 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, Atlas Texas Food & Beverages, LLC (“Atlas”) 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 Atlas’ motion
for summary judgment [DE# 3202].
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

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The Court adopts the USOR Statement of Undisputed Material Facts, found in USOR’s several motions for
summary judgment that includes attached exhibits, in reaching its conclusion on the issue of liability. To the extent
that any defendant is found liable, that finding will rest in the individual defenses and facts to be determined by the
Court. It is noteworthy that no defendant has challenged the EPA’s administrative findings and conclusion.

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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
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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).
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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
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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).
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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.

CONTENTIONS OF THE PARTIES
A.

Atlas’ Contentions

Atlas contends in multiple arguments, in its motion for summary judgment that USOR
has no evidence that supports a CERCLA and TSWDA claims against it. Atlas points out that
USOR’s claim is based on “a single page of [its] site records . . .” that refers to “. . . the
transporter ‘lws’ [as having taken] grease from a generator named ‘DNR’”. In this regard, Atlas
challenges USOR’s records as no evidence that it is the “Atlas Texas Food & Beverages, LLC
doing business as DNR Turkish Grill, or that grease contained hazardous substances under
CERCLA [and] TSWDA.”
Next, Atlas attacks USOR’s claim that: (a) the USOR Site is a facility under CERCLA;
(b) there was a release or threatened release of a hazardous substance at that site; (c) the release,
if any, caused USOR to incur response costs; (d) the costs incurred were necessary and
consistent with the National Contingency Plan under CERCLA; and, (e) Atlas falls within one of
the four categories of “covered person” as defined by 42 U.S.C § 9607(a), citing to Licardi v.
Murphy Oil USA, 111 F.3d 396 (5th Cir. 1997).
Finally, Atlas asserts that USOR has no evidence to support its solid waste claim against
it. Atlas attacks USOR’s claim of solid waste under § 361.271 of the Texas Health & Safety
Code and that Atlas was responsible for solid waste under CERCLA. Moreover, Atlas disputes
that grease is a solid waste under the TSWDA and that a release or a threatened release occurred.
Therefore, Atlas contends that summary judgment in its behalf is appropriate.
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B.

USOR’s Contentions

USOR submits that genuine issues of material fact as to Atlas’ liability may exist because
Atlas has not complied with the Court’s Order to participate in the Phase One discovery period.
This is true. Therefore, the Court struck Atlas’ early filed motion for summary judgment on or
about October 31, 2016, See [DE# 2777]. On November 9, 2016, however, Atlas filed the
instant motion for summary judgment.
In its response [DE# 3365], USOR challenges Atlas’ claim that it is not the “DNR” entity
reflected in the USOR Site records. It asserts that, of the 20 entities that operated under the DNR
assumed name, only Atlas was in operation in March 2006, the date that grease was generated
and disposed at the USOR Site. The undisputed facts show that from 2006 through 2013, Atlas
operated a grocery store under the name DNR Turkish Grill in Houston, Texas, a short distance
from the USOR Site. The evidence is substantially conclusive that Atlas is the DNR responsible
as an arranger. Nevertheless, USOR seeks discovery in support of its assertion that Atlas is the
proper party.
VI.

DISCUSSION AND ANALYSIS
As stated earlier, USOR concedes that a disputed fact issue may exist concerning the

issue of whether the Atlas that arranged for the transported hazardous substances is the Atlas in
this suit. The Court is of the opinion, however, that the evidence presented by Atlas on this point
does not proper challenge USOR’s summary judgment evidence. Moreover, its response does
not move its “bare” statement closer to summary judgment proof or dispute USOR’s evidence.
Therefore, on that basis alone, Atlas’ motion for summary judgment should be denied.
Atlas raises other issues concerning USOR’s pleadings and record of document that are
before the Court in support USOR’s suit. These issues, concerning Atlas’ remaining claims,

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however, are disposed of in the Court’s Memorandum. See [DE# 3890]. Therefore, the Court
declares the sole issue remaining in this case is Atlas’ identity.
It is ORDERED that Atlas’ motion for summary judgment is Denied.
SIGNED on this 21st day of July, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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