2020 Environmental Real Estate Issues

The 11th Court of Appeals, a mid-level Texas appellate court, affirmed the dismissal of the City of Midland, Texas in a cost recovery suit a company brought under the Texas Solid Waste Disposal Act (TSWDA).

Sewer System Allegedly Conveyed Chemicals
The company sought to recover some of the millions of dollars it spent to investigate and remediate contaminated groundwater under its former facility. It alleged contamination came from a neighboring company pouring chemicals into the City’s sanitary sewer system, which conveyed the chemicals under the Company’s facility, where the pipes leaked, causing groundwater contamination.

The City argued, and the trial court agreed, that the company could not establish that the City was subject to a court’s jurisdiction. The trial court dismissed, and the company appealed.

City Not Responsible
The appellate court determined the City would only be subject to a court’s jurisdiction if evidence established that the City was a person “responsible for solid waste” under the TSWDA. The company argued the City was responsible 1) as an owner and operator because it owned the pipes that leaked the chemicals and 2) as an arranger because its pipes conveyed the chemicals to the groundwater contamination location.

The appellate Court rejected the company’s arguments; even if what the company alleged was true, the City was not responsible for the waste. The TSWDA’s definition of “solid waste” specifically excluded “dissolved material in domestic sewage.” The Court also noted the lack of evidence that the City knew the neighboring company was pouring chemicals into the sewer system.

The company has asked the Texas Supreme Court to review the appellate court’s decision; that review is discretionary. It will probably be several months until the Supreme Court decides if it will consider the case.

To see the opinion https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f0376e34-a68e-431b-be34-5b1fd79f6c4e&coa=coa11&DT=Opinion&MediaID=1ca22882-cb36-420b-83a9-90e7cde4fe71