The Eastland Court of Appeals has upheld a Midland district court’s dismissal of a lawsuit brought by a manufacturer against the City of Weatherford. The suit alleged that the contamination of water wells located on a site once owned by the manufacturer had likely been caused by hazardous waste disposed of in the city’s sewer system. The manufacturer asserted a contribution claim to recover millions of dollars in costs it incurred in investigating and responding to the contamination at the site. The City filed a plea to the jurisdiction asserting that the manufacturer failed to state a claim giving rise to liability under the Solid Waste Disposal Act. The trial court granted the plea and dismissed all claims with prejudice. The manufacturer appealed.
The sole issue in Weatherford International, LLC and Weatherford U.S., L.P. v. City of Midland (No. 11-20-00255-CV) was whether the Solid Waste Disposal Act waived the city’s governmental immunity defense. The city responded that the manufacturer “failed (1) to identify any act committed by the City that would implicate the SWDA’s waiver of the City’s governmental immunity and (2) to raise a genuine issue of material fact to overcome the City’s challenge to the trial court’s subject-matter jurisdiction.” The court’s analysis focused on the applicable provisions of the SWDA, which authorizes a person to recover remediation costs from other persons who are responsible for the waste, including governmental subdivisions (citations omitted). In order to recover under the Act, the plaintiff must show that: (1) the defendant is a person responsible for the waste; (2) the TCEQ approved the plaintiff’s removal or remediation plan; (3) the remediation was necessary to address the release or threatened release of the waste; (4) the remediation costs were reasonable and necessary; and (5) the plaintiff made reasonable efforts to notify the defendant of the release and the plaintiff’s intent to remediate (citations omitted).
As to the definition of a responsible person, the Act requires that the person must own or operate a solid waste facility or “by contract, agreement, or otherwise have arranged to process, store, or dispose of, or arranged with a transporter 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” (citations omitted). The Act further defines “solid waste facility” and “solid waste.” The manufacturer asserted that the city was a responsible person because it owned and operated a solid waste facility, or acted as an “arranger of the disposal of solid waste at a solid waste facility.”
The court determined, however, that the manufacturer’s allegations “are premised on the City’s operation of a domestic sewer system—not the City’s disposal of solid waste.” Simply collecting domestic wastewater, as the City’s system does, does not constitute the operation or a solid waste facility under the statute. Moreover, although the manufacturer alleged that the City authorized subsequent owners of the site of the contamination to dispose of the contaminants in the sewer system, the city negated that allegation with evidence that no such arrangements had ever been made and that the manufacturer had never contacted the city about its remediation efforts. The manufacturer thus raised no genuine issue of material fact to overcome the city’s jurisdictional challenge.
