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

Filing 4134

MEMORANDUM OPINION AND ORDER granting #3286 USOR's MOTION for Partial Summary Judgment and denying #3758 the City's 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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August 02, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-2441

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Before the Court is USOR’s amended motion for summary judgment and the defendant,

the City of Pasadena’s, cross-motion for summary judgment1. 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”). With that memorandum opinion in place
and the issue of general liability resolved, the Court will hereafter addresses USOR’s amended
motion for summary judgment [DE# 3286] and the City’s cross-motion for summary judgment
[DE# 3758].
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
1

The Court adopts the USOR Statement of Undisputed Material Facts, found in its motion 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 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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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
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)].

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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 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)
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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[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 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)].
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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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. 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

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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 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.

FEDERAL LAW STANDARD AND RELATED EPA FINDINGS
A.

CERCLA and RCRA Defined

To establish its CERCLA claim, a plaintiff must establish that a defendant is a
“covered person” within the meaning of Section 107(a)(3) of CERCLA, which provides, in
relevant part:
(a) Notwithstanding any other provision or rule of law, and subject only to
the defenses set forth in subsection (b) of this section. . .

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(3) any person who, by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport for disposal
or treatment, of hazardous substances owned or possessed by such person, by
any other party or entity, at any facility or incineration vessel owned or
operated by another party or entity containing such hazardous substances. . .,
and
(4) any person who accepts or accepted any hazardous substances for
transport to disposal or treatment facilities, incineration vessels or sites
selected by such person, from which there is a release, or a threatened
release which causes the incurrence for response costs, of a hazardous
substance, shall be liable for⎯
(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan . . . .
42 U.S.C. § 9607(a). Section 107(a) requires a plaintiff to demonstrate that: (1) the USOR Site
is a facility, at which (2) there was a release or threatened release, (3) causing the
incurrence of response costs, necessary and consistent with the national contingency plan and,
(4) the defendant either “arranged for disposal or treatment” or “arranged with a
transporter for transport for “disposal or treatment” of “hazardous substances.” See, e.g.,
Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238, 242–43 (5th Cir. 1998) as modified on
rehr’g (Jan. 8, 1999).
Concerning the question of “facility”, the EPA has determined that the USOR Site is
a “facility” within the meaning of CERCLA in the Removal Action AOC, the AOI-1 RI/FS
AOC, and in the Second Removal Action AOC. Therefore, the EPA’s factual determinations
warrant deference by this Court. See, e.g., Galveston-Houston Ass’n for Smog Prevention
(GHASP) v. U.S. E.P.A., 289 Fed.Appx. 745, 749 (5th Cir. 2008) (deferring to EPA, but
noting heightened deference for complex scientific findings as opposed to simple findings of
fact). As discussed earlier, the Court adopts this factual determination.

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There has also been an EPA finding that a “release” or threatened “release” of
hazardous substances from the USOR Sites occurred. CERCLA defines “release” broadly to
mean “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment . . . .” See 42 U.S.C. § 9601(22).
As a result of the release or threatened release of hazardous substances at or from the USOR
Site, the USOR has incurred response costs. This determination also warrants deference because
of the complexity of the data. Id. Therefore, this undisputed factual determination is adopted by
the Court.
The USOR is the respondent in Removal Action AOC, the AOI-1 RI/FS AOC, and the
Second Removal Action AOC. As such, and based on EPA findings, they have and will
continue to incur response costs in order to comply with EPA administrative orders. These
response costs, as found by the EPA, are “necessary” and this determination in the Court’s
opinion warrants deference by this Court and the Court adopts this determination. See GHASP,
289 Fed.Appx. at
749.
The EPA has also determined that the USOR’s response costs under the Removal
Action AOC, AOI-1 RI/FS AOC and Second Removal Action AOC are consistent with the
National Contingency Plan.

Unlike voluntary response actions, where the burden of

demonstrating consistency with the NCP is on a plaintiff, “[w]here a private party is cleaning up
a site pursuant to an administrative order . . . or . . . a consent order . . ., the regulations
establish an irrebuttable presumption that the private party’s actions were consistent with the
NCP.”

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See, e.g., Aviall Services, Inc. v. Cooper Indus., LLC, 572 F. Supp. 2d 676, 695

(N.D. Tex. 2008), see, also, Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1137 (10th
Cir. 2002).
Regarding the question of “disposal” or “treatment,” CERCLA Section 101(29)
defines “disposal” and “treatment” as they are defined under the Resource Conservation
Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq. See 42 U.S.C. § 9601(29). RCRA defines
“disposal” broadly to mean:
the discharge, deposit, injection, dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including ground
waters.
42 U.S.C. § 6903(3) (emphasis added). In turn, the RCRA defines “solid waste” broadly as:
garbage, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility and other
discarded material, including sold, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and from
community activities .
.
.
.
42 U.S.C. § 6903(27). Further, the RCRA defines “treatment to mean:
The term “treatment,” when used in connection with hazardous
waste, means any method, technique, or process, including
neutralization, designed to change the physical, chemical, or
biological character or composition of any hazardous waste so as
to neutralize such waste or so as to render such waste
nonhazardous, safer for transport, amenable for recovery,
amenable for storage, or reduced in volume. Such term includes
any activity or processing designed to change the physical form
or chemical composition of hazardous waste so as to render it
nonhazardous.
42 U.S.C. § 6903(34).
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Taking the USOR’s proffers of EPA rulings as true, the Court determines that the
USOR Site was engaged in treatment and disposal operations. This fact is also a matter of
public record subject to judicial notice as it is “generally known within the territorial
jurisdiction” of this Court and “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” See Funk v. Stryker Corp., 631 F.3d
777, 783 (5th Cir. 2011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).
CERCLA does not define “arranged for,” but the Supreme Court has given the term its
“ordinary meaning,” and held that an “arranger” is one who “takes intentional steps to dispose
of a hazardous substance.” MEMC Pasadena, Inc. v. Goodgames Indus. Solutions, LLC, 143
F. Supp. 3d 570, 578 (S.D. Tex. 2015) (citing Burlington N. & Santa Fe Ry. Co. v. United
States, 556 U.S. 499, 611 (2009)). Where the evidence shows that an entity arranges for
another, collects and “haul away” its “grit” waste, and chooses an USOR Site as the “Disposal
Site” for its waste, it cannot be disputed that this act constitutes an “arrangement” under
CERCLA and federal precedent.
“Hazardous substances” are identified in

EPA’s

Designation of

Hazardous

Substances regulation implementing CERCLA, at 40 CFR 302.4. The USOR has submitted the
affidavit of Dr. Kirk W. Brown, a former professor at Texas A&M University, in support of its
contentions that waste streams attributed to the defendants contained “hazardous substances” as
that term is defined under CERCLA. Dr. Brown credentials are not challenged. Hence, he is
an expert capable of opining whether a particular party’s waste stream contains hazardous
substances, thereby triggering CERCLA liability. The Court finds that he relie[s] on the
methodology and data typically used and accepted in these cases . . . and his testimony is,

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therefore, admissible.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–95
(1993).
In this case, the USOR relies on Dr. Brown’s expert opinions to demonstrate that
the waste streams associated with certain defendants’ waste such as dirt, oil, oily sludge grease
and road tar, as well as corrosion inhibitors, spot removers, degreasing compounds, tar removers
and solvents, contained hazardous substances that triggered CERCLA liability. Based on
the evidence and his opinion, there is no genuine dispute that these waste contained
CERCLA hazardous substances. See [Findings of Facts (Dkt. No. 1429, Fact 17)].
The USOR has no obligation to prove that certain hazardous substances, attributable to
a defendant, are the same hazardous substances currently being released or threatened to be
released at the facility, or that the hazardous substances attributable to a defendant exceed a
particular contaminant threshold. See, Uniroyal Chemical Co., Inc., 160 F.3d at 242–43;
Halliburton Energy Servs., Inc. v. NL Indus., 648 F. Supp. 2d 840, 848 (S.D. Tex. 2009)
(“Because CERCLA imposes strict liability, a plaintiff generally does not need to prove that the
defendant caused the contamination, only that the defendant is a ‘covered person.’”) (citing OHM
Remediation Servs. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1578 (5th Cir. 1997). It
is enough that for substance to be determined, a substance is on one or more of the lists
identified at 42 U.S.C. § 9601(14), for substance to be determined a hazardous substance,
irrespective of the volume or concentration of the substance found at the site in question”.
See United States v. Nicolet, Inc., 712 F.Supp. 1205, 1207 (E.D. Pa. 1989).
Although the Fifth Circuit Court of Appeals has determined that whether a hazardous
substance exceeds “background levels” may be relevant to determining if there was a “release”
that caused the incurrence of response costs, Licciardi v. Murphy Oil U.S.A., Inc., 111 F.3d

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396, 398-99 (5th Cir. 1997), this is irrelevant to the liability of a “covered person.” See Asarco
LLC, 21 F.Supp. 3d at 803 (“[T]he only causation required under CERCLA is that the release
of hazardous substances at the ‘facility’ cause the response costs; a plaintiff does not need to
prove that the defendant’s waste caused the response costs.” (internal citations omitted).
B.

State Law Standards TCEQ Findings

To recover costs under state law, specifically, Section 361.344 of the TSWDA, the USOR
must establish that: (1) TCEQ has approved the response action; (2) the response action is
necessary to address a release or threatened release of solid waste; (3) the costs of the action are
reasonable and necessary; (4) the defendant is a “person responsible for solid waste” as defined
in § 361.271; and, (5) the USOR made reasonable attempts to notify the defendant(s) of the
release and its intent to take steps to eliminate the release. See TEX. HEALTH & SAFETY
CODE ANN. § 361.344; e.g., see also R.R. Street & Co., Inc. v. Pilgrim Enters., Inc., 166
S.W.3d 232, 240 (Tex. 2005).
TCEQ has been involved in the response actions at the USOR Site in various
respects. By letter dated August 4, 2016, TCEQ formally “acknowledge[d] EPA’s approval of
the USOR’s response actions and, for the purposes of Texas Health and Safety Code §
361.344, the TCEQ approve[d] the USOR Site’s response actions.”
The TSWDA definition of “release” is almost identical to that of CERCLA.
Compare TEX. HEALTH & SAFETY CODE ANN. § 361.003(28) with 42 U.S.C. § 9601(22).
The distinctions are without a difference in this case as is evident by the following: (a) both the
EPA and TCEQ have determined that there has determined there has been a release or
threatened release as defined by CERCLA, and the TSWDA. See [Finding of Facts Dkt. No.
1429]; and (b) the EP and the TCEQ have determined that the USOR Site PRP Group’s

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response activities are necessary to address the release or threatened release. See Id. Like the
EPA determinations on this subject, the TCEQ determinations warrant deference by this Court.
It follows that if the USOR’s response costs were incurred in response to a release, and
the costs were necessary to address the release, then the costs were “reasonable and necessary”
under § 361.344.

Therefore, the EPA and TCEQ’s approval of the USOR’s response

activities and determinations that the USOR’s response activities are necessary, are also an
affirmation that the USOR’s costs are reasonable and necessary. Further, any dispute concerning
the USOR’s costs, as to reasonableness, is a question for the Court to determine in apportioning
response costs among liable parties. See TEX. HEALTH & SAFETY CODE ANN. §
361.344.

See also, TEX. HEALTH & SAFETY CODE ANN.

§ 361.343(c) (noting

apportionment of costs only affects rights of parties to cost recovery actions as against each other
and does not affect liability).
Like CERCLA, the TSWDA defines “persons responsible for solid waste” to include
a person that:
(3) by contract, agreement, or otherwise, arranged to process,
store, or dispose of, or arranged with a transporter for
transport to process, store, or dispose of, solid waste owned or
possessed by the person, by any other person or entity at:
(A) the solid waste facility owned or operated by another person
or entity that contains the solid waste; or
(B) the site to which the solid waste was transported that
contains the solid waste .
...

TEX. HEALTH & SAFETY CODE ANN § 361.271(a)(3).

Thus, the Court need not

repeat the standard of proof simply because state law is involved. It is sufficient to say, based

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on the record before the Court, that a finding under CERCLA concerning “person,”8 “arranger”
or “transporter’ of “solid waste” by EPA at the USOR Site, satisfies a necessary finding under the
TSWDA.
Regarding “processing, storage or disposal,” the TSWDA defines “processing,” in
relevant part, as “the extraction of materials from or the transfer, volume reduction, conversion
to energy, or other separation and preparation of solid waste for reuse or disposal . . . .”
TEX. HEALTH & SAFETY CODE ANN. § 361.003(25). “Storage” is defined as “the
temporary holding of solid waste, after which the solid waste is processed, disposed of, or
stored elsewhere.” Id. § 361.003(38). “Disposal” is defined broadly, to mean “discharging,
depositing, injecting, dumping, spilling, leaking, or placing of solid waste or hazardous waste .
. . into or on land or water . . . .” Id. § 361.003(7). And,, “solid waste” is defined in relevant part
as:
garbage, rubbish, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility, and other
discarded material, including solid, liquid semisolid, or contained
gaseous material resulting from industrial, municipal, commercial,
mining, and agricultural operations and from community and
institutional activities. The term:
(A) does not include:
(i) solid or dissolved material in domestic sewage ... (B) does
include hazardous substances . . . .
Id. § 361.003(34) and (35). As noted the definition of “solid waste” specifically includes, but
is not limited to, hazardous substances. See Id. see also TEX. HEALTH & SAFETY CODE
ANN. § 361.003(34) and (35); and Zumwalt v. City of San Antonio, No. 03-11-00301-CV,

8

Under Texas law a “person” is defined as “an individual, corporation, organization,
government or governmental subdivision or agency, business trust, partnership, association, or
any other legal entity.” TEX. HEALTH & SAFETY CODE ANN. § 361.003(23).

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2012 WL 1810962, at •6 (Tex. App. May 17, 2012). Consequently, the Court concludes that the
TSWDA imposes the same or broader liability upon “persons responsible for the disposal of solid
waste” as CERCLA upon “covered persons.”
VI.

CONTENTIONS OF THE PARTIES
A.

The USOR’s Contentions and Evidence Proffer

The USOR seeks partial summary judgment against the City under CERCLA and the
TSWDA. The Court has reviewed USOR’s motion, contentions and supporting evidence and
determines its proffer of evidence to be as follows 9:
City of Pasadena is a municipality, and as a municipality, is a
government or governmental subdivision or agency, and a legal
entity. See City of Pasadena’s Response in Opposition to
Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 1730,
at 9, ¶ 4) (admitting City of Pasadena is a municipality and that
municipality falls within CERCLA’s definition of “person”).
City of Pasadena owned the 200 N. Richey portion of the USOR
Site during the approximately 65-year period from 1944 to
January 2009, when it was acquired by U.S. Oil Recovery, which
abandoned the USOR Site in June 2010. See City of Pasadena’s
EPA Information Request Response at 1-2 (Dkt. No. 1431-2, at 12); Removal Action AOC, Finding of Fact 9.a., at p. 4 (Dkt. No.
1428-1, at 4); AOI-1 RI/FS AOC, Finding of Fact 14, at p. 6 (Dkt.
No. 1429-2, at 6); Second Removal Action AOC, Finding of Fact
11, p.5 (Dkt. No. 3187-1, at 5).
City of Pasadena operated a wastewater treatment plant commonly
known as “Old Vince” at the 200 N. Richey portion of the USOR
Site during the approximately 50-year period from 1944 until
March 1994. See City of Pasadena’s EPA Information Request
Response at 2-3 (Dkt. No. 1431-2, at 2–3).
From March 1, 1994 through April 7, 2004, City of Pasadena still
owned the 200 N. Richey portion of the USOR Site but contracted
with its agent, Defendant Severn Trent Services, Inc., to operate
Old Vince. See City of Pasadena’s EPA Information Request
Response at 2-3 (Dkt. No. 1431-2, at 2–3).
9

USOR has attached to its motion for partial summary judgment Exhibits A through I in support of its proffer as
referenced. This Memorandum relies on those documents.

15 / 27

Defendant Severn Trent Services operated Old Vince under the
direction and control of City of Pasadena pursuant to contract and
City of Pasadena ordinance. See PASADENA, TEX.,
ORDINANCES 94-32, amended by 2015-120.
Old Vince comprised land, structures, appurtenances, and other
improvements at the 200 N. Richey portion of the USOR Site,
including but not limited to two clarifiers, two oxygen digesters,
an oxygen activation sludge unit, an oxygen plant, a chlorination
building, a lift station, a gravity thickener, an aerobic digester, a
belt filter press building, a pump control room, a chlorine contact
tank (basin/concrete containment area), a high-rate trickling filter,
primary clarifier, final clarifier, and two lift stations. See Removal
Action AOC, Findings of Fact “e.” at p.5 (Dkt. No. 1429-1, at 5).
Old Vince accepted wastewater from residential sources, but also
accepted wastewater from commercial and industrial sources,
including machine shops, fabrication shops grocery stores and
other “businesses operating in the City of Pasadena.” See City of
Pasadena’s February 20, 2014 Letter to EPA at 2 & n.2, 5 (Dkt.
No. 1431-3, at 2 & n.2, 5).
Hazardous substances were used in the course of treating
domestic wastewater during the City of Pasadena’s ownership of
the 200 N. Richey portion of the USOR Site and during the
operations of Old Vince by the City of Pasadena and Severn Trent
Services. See City of Pasadena’s EPA Information Request
Response at 6, 11–12 (Dkt. No. 1431-2, at 6, 11–12) (admitting
that, “[i]n the course of treating normal domestic wastewater
hazardous substances . . . were used.”); City of Pasadena’s
Response in Opposition to Plaintiff’s Motion for Partial Summary
Judgment Against (Dkt. No. 1730, at 10, ¶ 11) (admitting use of at
least the hazardous substance chlorine).
Wastewater was spilled and/or released at various times from Old
Vince and the 200 N. Richey portion of the USOR Site between
1944 and 2004 when the City of Pasadena owned the 200 N.
Richey portion of the USOR Site and from 1944 to 1994 when the
City of Pasadena operated Old Vince. See City of Pasadena’s EPA
Information Request Response at 10, 12–13 (Dkt. No. 1431-2, at
10, 12–13) (admitting “[t]here may have been an occasional spill
or release of domestic wastewater at the Old Vince. That
wastewater would have contained normal background
concentration contaminants, which may have included pollutants
and/or contaminants.”); id., at 3 (Dkt. No. 1431-2, at 3) (admitting
16 / 27

that during high rainfall, because of the naturally high water table,
“hydraulic overload would result in wastewater spills from the Old
Vince” and further admitting to “raw sewage spills or the release
of sewer water” due to “sewer stoppages, line breaks, power
outages and five spills of insignificant volumes . . . during
mechanical malfunctions.”); Plaintiff’s Letter to City of Pasadena
of April 25, 2013 with Selected Attachments (Exhibit A hereto),
May 22, 2009 Harris County Public Health & Environmental
Services Investigative Report, at 3, stating:
According to City of Pasadena Engineer, D.
Dayananda, the plant was sold as-is. He stated that
Pasadena did not conduct a property assessment
before the sale. He stated that he personally
notified the President of USOR, Klaus Genssler,
that . . . there were problems with the clarifier on
the west side of the plant that consisted of a leak to
Vince Bayou and that when the water level in
Vince Bayou got high, it flooded into the clarifier”;
See Id., January 29, 2009 Deed Without Warranty
relating to 200 N. Richey, Pasadena, TX, at 2,
¶ 5, which states:
Grantee acknowledges that the Property described
herein may have been used in connection with
municipal sewage treatment operations, including
the storage, transfer and disposal of raw municipal
sewage and that such sewage products, or
derivatives may have been spilled, leaked, or
otherwise discharged onto or in the Property.
Equipment and sites may contain asbestos,
hazardous substances, or Naturally Occurring
Radioactive Material (“NORM”); and NORMcontaining material and other waste or hazardous
substances may be buried, have come into contact
with the soil, or otherwise have been disposed of
on the Property. Grantee understands that special
procedures may be required for the remediation,
removal, transportation, or disposal of the wastes,
asbestos, hazardous substances, and NORM from
the equipment and Property . . . .;
See also FEMA Flood Maps for 200 N. Richey (Exhibit A.1
hereto) (demonstrating 200 N. Richey portion of USOR Site is
within floodplain).

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City of Pasadena acknowledges that any wastewater which was
spilled and/or released from Old Vince operations from 1944 to
2004 would have contained the heavy metals copper, lead and
zinc, among other CERCLA hazardous substances. See City of
Pasadena February 20, 2014 Letter to EPA, at 2 (Dkt. No. 1431-3,
at 2) (admitting wastewater and sludge samples from Old Vince
contained CERCLA hazardous substances and heavy metals in
“trace” amounts, and that, “contained within any wastewater spill
were ‘normal background concentration contaminants, which may
have included pollutants and/or contaminants.’”); see also 40 CFR
302.4 – Designation of hazardous substances (Dkt. No. 1431-4);
.”); Plaintiff’s Letter to City of Pasadena of April 25, 2013 with
Selected Attachments (Exh. A) (January 29, 2009 Deed Without
Warranty relating to 200 N. Richey, Pasadena, TX, at 2, ¶ 5,
acknowledging there may have been spills, leaks or discharges
from 200 N. Richey, and that the property “may contain . . .
hazardous substances.”)
Between April 2002 and July 2003, at a time period when City of
Pasadena owned the 200 N. Richey portion of the USOR Site,
there were several exceedences of hazardous substances such as
ammonia (NH3) and chlorine in the effluent discharged and/or
released from the Old Vince operations in violation of City of
Pasadena’s wastewater discharge permit. See City of Pasadena’s
EPA Information Request Response, at 8-10 (Dkt. No. 1431-2, at
8–10) (admitting same); City of Pasadena’s Response in
Opposition to Plaintiffs Motion for Partial Summary Judgment, at
11, ¶ 14 (Dkt. No. 1730, at 11, ¶ 14) (admitting same); TCEQ
Agreed Order, Docket No. 2003-1017-MWD-E, effective May 11,
2005 (“TCEQ Agreed Order”) (Dkt. No. 1431-5); Declaration of
Gregory W. Jalowy (Dkt. No. 1730-1); see also 40 CFR 302.4 –
Designation of Hazardous Substances (Dkt. No. 1431-5).
As part of its NPDES permitting process, City of Pasadena
collected effluent samples of municipal wastewater treated at Old
Vince, which contained the following hazardous substances
during the following years: 1990 – copper, nickel, phenols,
toluene and zinc; 1997 – aluminum, barium, zinc; 2001 aluminum, barium, chloroform, 1,4-dichlorobenzene, phenols and
zinc. See 1990, 1997 and 2001 City of Pasadena Effluent Samples
(Dkt. No. 1431-6); see also 40 CFR 302.4 – Designation of
Hazardous Substances (Dkt. No. 1431-4); City of Pasadena’s
Response in Opposition to Plaintiff’s Motion for Partial Summary
Judgment Against (Dkt. No. 1730, at 11, ¶ 15) (admitting effluent

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samples in 1990, 1997 and 2001 contained some or all of these
substances).
From 1944 until at least 1983 when a sludge thickener and belt
presses were installed at Old Vince, sludges that were generated
by Old Vince operations were managed in two drying beds, one
located to the west of the Eastern portion of Old Vince, and one
located to the north of the Western portion of Old Vince (“north of
the Headworks”). See City of Pasadena’s EPA Information
Request Response, at 6–7 (Dkt. No. 1431-2, at 6–7); Historical
Map of Old Vince Drying Bed Locations (Dkt. No. 1431-7)
(rectangular grids indicate sludge drying beds); October 12, 2015
Site Visit Memorandum, at 4 and Attached Maps (Dkt. No. 18831, at 4, 6–7); City of Pasadena Response in Opposition to
Plaintiff’s Motion for Partial Summary Judgment, at 11, ¶ 16
(Dkt. No. 1730, at 11, ¶ 16) (admitting two sludge drying beds but
disputing exact location).
Portions of each sludge drying bed were located within the USOR
Site as defined by EPA. Compare EPA maps of USOR Site (Dkt.
No. 1429-1, at 52-56) with Historical Map of Old Vince Drying
Bed Locations (Dkt. No. 1431-7) and maps attached to October
12, 2015 Site Visit Memorandum (Dkt. No. 1883-1, at 6-7).
The sludge drying bed “north of the Headworks” was constructed
of concrete and gravelly sand. See October 12, 2015 Site Visit
Memorandum (Dkt. No. 1883-1, at 4).
City of Pasadena’s Sludge Data Reports from 1996, 1998 and
2000 demonstrate sludges generated by Old Vince operations
contained at least the following hazardous substances: 1996 –
barium, benzene, chromium, copper, cyanide, lead, nickel, phenols
and zinc; 1998 – lindane (gamma-BHC) #2 and methyl ethyl
ketone; 2000 – barium and selenium. See 1996, 1998 and 2000
City of Pasadena Sludge Data Reports (Dkt. No. 1431-8); see also
40 CFR 302.4 – Designation of Hazardous Substances (Dkt. No.
1431-4); City of Pasadena’s Response in Opposition to Plaintiff’s
Motion for Partial Summary Judgment Against (Dkt. No. 1730, at
11, ¶ 17) (admitting these sludge samples contained some or all of
these substances).
During decommissioning of Old Vince in 2004, all tanks and
basins were drained and additional rainfall accumulation was
pumped out to a nearby lift station, but significant solids which
could not be pumped were not removed. See City of Pasadena’s
EPA Information Request Response (Dkt. No. 1431-2, at 14)
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(EPA request about “substance remaining in the tanks at the 200
N. Richey property” and City of Pasadena’s response thereto);
October 12, 2015 Site Visit Memorandum (Dkt. No. 1883-1, at 4);
see also Exh. A, Plaintiff’s Letter to City of Pasadena of April 25,
2013 with Selected Attachments, May 22, 2009 Harris County
Public Health & Environmental Services Investigative Report, at
4, stating
At the time this investigation began . . . . it was
also clear that tanks, pipes, valves, and structures
had not been cleaned, cleared, or properly
maintained before the plant was put into use by
MCC. This was evident in the fact that the
chlorine
contact
chamber
contained
approximately 40 cubic yards of sludge, the sand
filters had plant growth in them, similar plant
debris was floating on the contents of the
clarifiers and aeration basins on the east side,
there was trash, litter, and plant debris in the
raceways connecting the tanks, plant debris and
litter was obstructing at least one gate valve
preventing it from seating and causing leakage on
the east side. A gate valve was completely
missing on the west side between the clarifier and
Vince Bayou. Severe rust on metal apparatus was
endemic . . . .”
EPA sent City of Pasadena a March 12, 2013 general notice letter
notifying City of Pasadena of its potential CERCLA liability at the
USOR Site and EPA and Plaintiff’s ongoing removal action
activities; requesting that City of Pasadena negotiate in good faith
a settlement agreement with EPA to perform a Remedial
Investigation and Feasibility Study (“RI/FS”) at the USOR Site;
and requesting that City of Pasadena provide information and
documents to EPA pursuant to CERCLA Section 104(e). See
March 12, 2013 EPA General Notice Letter with 104(e)
Information Request to City of Pasadena (Dkt. No. 1431-1).
Plaintiff met with City of Pasadena on March 20, 2013 to discuss
City of Pasadena’s liability and participation with in the cleanup
of the USOR Site, and Plaintiff’s representative emailed City of
Pasadena shortly thereafter, on March 22, 2013, to request
assistance from the City of Pasadena and its agents in
understanding the operations of Old Vince. See Pastor Email to
City of Pasadena of March 22, 2013 (Exhibit B hereto); see also
Plaintiff’s Letter to City of Pasadena of April 25, 2013 with

20 / 27

Selected Attachments (Exh. A) (referencing March 20, 2013
meeting).
By letter dated April 25, 2013, Plaintiff’s representatives mailed
counsel for City of Pasadena evidence of City of Pasadena’s
liability at the USOR Site. See Exh. A.
City of Pasadena responded to EPA’s 104(e) Information Request
by letter dated June 14, 2013 from Robin Green, P.E., Public
Works Director for City of Pasadena. See City of Pasadena’s EPA
Information Request Response at 2-3 (Dkt. No. 1431-2, at 2-3).
Defendant Severn Trent Services representatives, Mr. Richard
Neely and Mr. Greg Jalowy, participated in the preparation of
City of Pasadena’s Information Request Response. See City of
Pasadena’s EPA Information Request Response at 2-3 (Dkt. No.
1431-2, at 2-3).
City of Pasadena employed Mr. Jalowy from 1982 to 1994 during
City of Pasadena’s ownership and operation of Old Vince, and
Defendant Severn Trent Services has employed Mr. Jalowy since
1994, when Defendant Severn Trent Services began operating Old
Vince under contract with City of Pasadena. See Declaration of
Gregory W. Jalowy (Dkt. No. 1730-1).
On September 25, 2013, Plaintiff ‘s representatives met with EPA
to discuss City of Pasadena’s liability at the USOR Site,
identifying various spills and overflows and hazardous substances
present in wastewater effluent and sludges. See Plaintiff’s
Presentation to EPA of September 25, 2013 (Exhibit C hereto).
By email October 29, 2013, Plaintiff’s representatives re-alerted
EPA to the results of EPA’s own field sampling conducted in July
2010 at Old Vince which and identified numerous CERCLA
hazardous substances present at the 200 N. Richey portion of the
USOR Site. See Plaintiff’s Email to EPA Regarding 2010 MCC
Sampling of October 29, 2013 (Exhibit D hereto).
By letter dated December 26, 2013, Plaintiff alerted City of
Pasadena of deficiencies and inaccuracies in the City of
Pasadena’s June 14, 2013 Information Request Response, by
reference to various public records and other evidence. See
Plaintiff’s Deficiency Notice Letter to City of Pasadena of
December 26, 2013 (Exhibit E hereto).

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Instead of supplementing its June 14, 2013 Information Request
Response, City of Pasadena sent a letter to EPA dated February
20, 2014 addressing Plaintiff’s December 26, 2013 letter to City
of Pasadena. See City of Pasadena’s February 20, 2014 Letter to
EPA (Dkt. No. 1431-3).
By letter dated April 18, 2014, Plaintiff notified EPA of the
inadequacy of City of Pasadena’s 104(e) Information Request
Response and February 20, 2014 letter. See Plaintiff’s Deficiency
Notice Letter to EPA of April 18, 2014 Regarding City’s 104(e)
Response (Exhibit F hereto).
In Summer 2014, the USOR Site PRP Group conducted sediment
core sampling of substances remaining in the tanks of Old Vince,
including over four feet of sludge in the aerobic digester and three
feet of sludge in the oxygen digesters. Sampling identified the
following hazardous substances: aluminum, arsenic, barium,
cadmium, chromium, copper, lead, nickel, selenium, silver and
zinc. See July 22, 2014 Report entitled “Old Vince Bayou
Wastewater Treatment Plant Residual Materials Sampling” (Dkt.
Nos. 1432–1440, especially Dkt. No. 1432 at 9, 121); see also 40
CFR 302.4 – Designation of Hazardous Substances (Dkt. No.
1431-4).
On July 2, 2014, while the July 22, 2014 Report was pending,
Plaintiff’s representatives met with EPA again to discuss the
results of the Residual Materials Sampling. See Plaintiff’s
Presentation to EPA of July 2, 2014 (Exhibit G hereto).
In May 2015, in response to significant rainfall events, Plaintiff’s
consultants studied overflows at Lift Station 1 at Old Vince and
identified among overflow material waste left in place from
historical wastewater treatment operations, including, inter alia,
rotting organic matter and tampon applicators. See Golder Lift
Station 1 Overflow Report of May 22, 2015 (Exhibit H hereto).
In late May and/or June 2015, Plaintiff and EPA sought assistance
from City of Pasadena and Defendant Severn Trent Services to
deal with significant rainfall events and ensuing overflows from
the former wastewater treatment units at Old Vince. Specifically,
Plaintiff and EPA requested the assistance of City of Pasadena and
Severn Trent to show Plaintiff and EPA representatives which
valves could be triggered or what other means could be used to
close off historical Old Vince hydraulic connections to minimize
the actual and threatened overflows from the 200 N. Richey Street
portion of the USOR Site as a result of the significant rain events
22 / 27

and flooding. See Pastor Aff. at 2, ¶¶ 4–8 (Dkt. No. 2007-2, at 2,
¶¶ 4–8); EPA’s Third 104(e) Information Request to Severn Trent,
at 1 and Enclosure 3 (Dkt. No. 2007-3, at 1, 10).
On August 17, 2015, EPA issued a CERCLA Section 104(e)
Information Request to Defendant Severn Trent Services, wherein
EPA requested “to have a technical representative meet EPA at
[Old Vince] to visually show the locations indicated by the City . .
.” of various valves and Old Vince apparatus.” See EPA’s Third
104(e) Information Request to Severn Trent, at 1 and Enclosure 3
(Dkt. No. 2007-3, at 1, 10). Defendant Severn Trent Services
selected Mr. Greg Jalowy as its technical representative. See
Severn Trent’s Third 104(e) Response of September 18, 2015, at 2
(Exhibit I hereto).
On September 29, 2015, in response to EPA’s Third 104(e)
Information Request, Mr. Jalowy and other Severn Trent Services
representatives participated in a two-hour site visit at Old Vince
led by EPA’s On-Scene Coordinator, Mr. Adam Adams (“Site
Visit”). Plaintiff also participated in the Site Visit through its
engineering and environmental consultants, including Mr. Eric
Pastor, Pastor, Behring & Wheeler, LLC. Mr. Pastor drafted a
memorandum summarizing the Site Visit subject to the review
and approval of Mr. Adams, which memorandum was complete
on October 12, 2015. See Pastor Aff. and Exhibits thereto (Dkt.
Nos. 2007-1, 2007-2 and 2007-3); October 12, 2015 Site Visit
Memorandum (Dkt. No. 1883-1).
As the September 29, 2015 Site Visit was responsive to EPA’s
Third 104(e) Information Request, any statements made by
representatives of Defendant Severn Trent Services, including Mr.
Jalowy, were made subject to criminal penalty. See EPA 104(e)
Information Request to Severn Trent, at 1 (Dkt. No. 2007-3, at 1).
Based on these asserted facts; investigations and findings, USOR contends that the
evidence is undisputed that: (a) City is a “person” within the CERCLA definition; (b) the USOR
Site is a “facility as defined in § 101(9) of CRECLA; (c) the City operated a wastewater
treatment facility on part of the USOR Site at the time that hazardous substances were disposed
of in effluents, sludges and wastewater spills; (d) there has been a “release” or threatened
“release” at the USOR Site, as defined by § 9601(22); and (e) USOR has incurred response

23 / 27

costs; (f) the TCEQ has acknowledged approval of actions under TCEQ. Therefore, USOR
asserts that it is undisputed that USOR is entitled to judgment as a matter of law under the
TSWDA on liability and permitted to seek allocation of the City in response costs.
B.

The City of Pasadena’s Contentions

The City contends that its wastewater treatment prior to the sale of its treatment plant did
not involve hazardous substances and, therefore, does not create a basis for liability under
CERCLA and TSWDA. The City asserts that any contamination for which response costs may
be claimed “arose as a result of USOR’s operations after the City sold Old Vince to USOR.”
The City cites to Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d 750, 760 (5th Cir. 1994) as
authority for its position that there is no liability on its part.
The City also asserts in general, without evidence of equal dignity, that it “disputes”
certain evidence provided by USOR in support of its motion for partial summary judgment. In
this regard, the City argues that certain documentation is “unauthenticated as required under FRE
901. The City goes further and disputes USOR proffers that are irrelevant to its defense. For
example, the City disputes whether USOR consists of “persons”, whether USOR has been
required to pay response costs consistent with the National Contingency Plan (“NCP”) and
whether response costs are necessary to address “the release or threatened release of hazardous
substances.

At the same time, the City admits that these “disputed” matters do not raise

questions of fact, but instead questions of law. The City has filed a cross-motion for summary
judgment that rests on matters that it contends are disputed fact. The Court takes the City’s
position to be that because USOR cannot establish its motion, as a consequence, the City is
entitled to summary judgment on the same claims.

24 / 27

VII.

DISCUSSION AND ANALYSIS
The mere fact that the City alleges the existence of “some” factual dispute between the

parties and that casual and stray disputes exist, will not defeat an otherwise properly supported
motion for summary judgment. Corsair v. Stapp Towing Co., Inc., 228 F. Supp. 2d 795, 797
(S.D. Tex. 2002). Disputes are genuine only if they require resolution by a fact finder. Anderson
v. Liberty Lobby, Inc., 488 U.S. at 248, 250. Genuine facts that the City contends are disputed,
are, in fact, admitted by the City in the record. For example, the City admits that it used
hazardous substances in its wastewater treatment process. It admits to the presence of hazardous
substances and discharges of sludge and effluents. And, it admits that various spills, leaks,
releases and/or overflows from its treatment plant occurred. The proof is found in the fact that
the City accepted wastewater from commercial and industrial sites, including machine shops,
fabrication shops, grocery stores and other commercial venues. See [DE# 1431-3, at 2 and no. 2,
5].
The City cannot refute that during flooding and high water “there may have been an
occasional spill.” In its deed of sale to USOR, the City acknowledged that spills occurred and
that its equipment “may contain . . . hazardous substances”. Hence, these admissions establish
that the City’s wastewater and sludge samples contained CERCLA hazardous substances and
heavy metals. Looking further, in response to EPA requests, the City admitted that there were
several instances where it effluent discharge exceeded EPA standards in violation of its
discharge permit.

These effluents contained hazardous substances such as copper, nickel,

phenols, toluene and zinc, aluminum, barium, chloroform, and 1, 4 dichlorobenzene.

Finally,

the evidence is undisputed that sludge remains in two drying beds located at the Old Vince site
and are within the USOR Site. Furthermore, the City reported the presence of like or similar

25 / 27

hazardous substances that were not pumped out or otherwise removed at the time of the sale of
its plant.
From the undisputed facts and City admissions, the Court concludes that the City is a
“person” as defined by CERCLA, that solid and hazardous waste, as defined by CERCLA and
RCRA are deposited at Old Vince for treatment, that it is necessary for the USOR Site to
address a release or threatened release, that the costs associated have been determined to be
reasonable and necessary, that the City has been properly notified and that the City is a
responsible person under CERCLA and the TSWDA. See [DE# 3890 Incorporated Here].
Lastly, the City argues that because it did not own or operate its plant at the relevant time
that Joslyn absolves it of liability. See Joslyn Mfg. Co., 40 F.3d at 760. The City misread the
Joslyn opinion when it contends that it was not the owner at the time of any release and/or that
it is simply a prior owner. A past owner may be liable for operating a contaminated site even
though that status alone may not be the basis for liability. See Id. at 761-62. The question of
liability, however, turns on whether use during ownership gives rise to liability. Id.

As a

matter of law, because the facts are undisputed, Joslyn does not absolve the City of liability.
VIII. CONCLUSION
Therefore, the Court HOLDS that the City’s use during ownership gives rise to liability
under CERCL and the TSWDA.

26 / 27

Based on the foregoing discussion and conclusions of law, USOR’s motion for partial
summary judgment is GRANTED and concomitantly, the City’s motion for summary
judgment is Denied.
It is so Ordered.
SIGNED on this 2nd day of August, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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