Weatherford International, LLC and Weatherford U.S., L.P. v. City of Midland

Opinion filed August 31, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00255-CV
__________
WEATHERFORD INTERNATIONAL, LLC AND
WEATHERFORD U.S., L.P., Appellants
V.
CITY OF MIDLAND, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV55471
OPI NI ON
This is an interlocutory appeal from the grant of a plea to the jurisdiction in
favor of Appellee, the City of Midland (the City). See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(8) (West Supp. 2021). Appellants, Weatherford International,
LLC and Weatherford U.S., L.P. (collectively, Weatherford) brought a cost-recovery
action under the Solid Waste Disposal Act (SWDA) against the City 1 for past and
future response costs incurred to remediate the contamination of well water located
on a property once owned by Weatherford. See generally TEX. HEALTH & SAFETY
CODE ANN. §§ 361.271(a), .344 (West 2016). In its sole issue on appeal,
Weatherford contends that the trial court erred when it granted the City’s plea to the
jurisdiction based on the City’s defense of governmental immunity. We affirm.
I. Factual and Procedural Background
Weatherford filed the underlying lawsuit on April 1, 2019, seeking
contribution from the City under the SWDA. In response, the City answered and
filed a plea to the jurisdiction. In its filings, the City asserted that (1) it had
governmental immunity from suit; (2) Weatherford failed to allege any waiver of the
City’s immunity; (3) Weatherford failed to assert that the City is a transporter of
hazardous waste; and (4) Weatherford lacked standing to assert the claims it had
raised in its petition.
On June 16, 2020, following a stay, 2 the trial court signed a scheduling order,
which contained an agreed-upon discovery deadline of May 25, 2021. On
October 20, 2020, Weatherford filed its second amended petition, which is the
operative pleading for purposes of our review.
A. Weatherford’s Factual Allegations
Approximately twenty-five years ago, Weatherford purchased a 20.7-acre
tract (the Site) from Energy Industries, Inc. As part of a joint-venture agreement,
1
In addition to the City of Midland, Weatherford’s original petition named the following defendants:
AB-Tex Beverage, LTD; Aegis Chemical Solutions, LLC; Aplex Industries, Inc.; Bell Petroleum Services,
Inc.; Control Power, Inc.; CorCoat I, LLC; Core Laboratories, LP; Dawson Geophysical Company; Eco-
Logical Environmental Services, Inc.; Exterran Energy Solutions, L.P.; Hy-Bon Engineering Company,
Inc.; KES (USA) Inc.; Logicoat, Inc.; Luna Mesa Ventures, LLC; NCZ I, Inc.; Pentair, Inc.; Spectrum Brand
Holdings, Inc.; and Strong Properties, LLC.
The lawsuit was stayed in July of 2019, when Weatherford commenced voluntary bankruptcy
2
proceedings. The trial court later lifted the stay and signed the scheduling order referenced above.
2
Weatherford performed an environmental assessment of the Site in November of
1998. The results of that assessment revealed that a water well located on the Site
contained certain contaminants. Weatherford subsequently notified the Texas
Natural Resource Conservation Commission (TNRCC)—the nominal predecessor
to the Texas Commission on Environmental Quality (TCEQ)3—of their November
1998 water testing results.
Weatherford sold the Site in 2001. Despite the sale, Weatherford continued
its investigation into the source and cause of the contamination: from 2001 through
2009, Weatherford installed on the Site numerous groundwater monitoring wells,
which detected the presence of trichloroethylene (TCE) and perchloroethylene
(Perc). It was determined, however, that the highest concentrations of TCE
originated from an offsite location northeast of the Site.
In August of 2002, Weatherford submitted an Affected Property Assessment
Report (APAR) to the TCEQ. The APAR revealed the existence of two
contaminants—TCE and Perc—on the Site. Two years later, toward the end of 2004,
the TCEQ conferred with Weatherford in regard to Weatherford’s APAR and the
contamination of onsite well water. At that time, the TCEQ contested Weatherford’s
representations in the APAR and required that Weatherford continue groundwater
contamination delineation procedures offsite on water wells located within a half-
mile radius of the Site. The TCEQ ultimately rejected Weatherford’s APAR and
assessment that it had delineated the affected groundwater.
In December of 2007, ownership of the Site again changed hands. However,
following another TCEQ investigation in July of 2008, the TCEQ concluded that
Weatherford was the party responsible for the subject contamination and required
that Weatherford install at least one set of cluster wells.
3
In 2004, the TNRCC became the TCEQ. Act of May 28, 2001, 77th Leg., R.S., ch. 965,
§ 18.01(a)(1), (b), 2001 Tex. Gen. Laws 1933, 1985.
3
Between 2009 and 2011, the TCEQ continued its investigation. The TCEQ
also required that Weatherford continue investigating the potential offsite source of
the contaminants; however, the TCEQ suggested that, if the source of the
groundwater contamination on the Site was, in fact, offsite, Weatherford could
consider applying for an “Innocent Owner/Operator (IOP) Certificate.”
Subsequently, a September 2013 groundwater assessment report, prepared by
Weatherford’s environmental consultant, ENVIRON, concluded that the
contamination originated from an up-gradient source that was not connected to or
associated with the Site. However, without denying the apparent existence of an
offsite contaminator source, the TCEQ rejected Weatherford’s denial of liability for
the contamination the following month and requested that Weatherford submit
another APAR.
As a result, ENVIRON continued its investigation. By February of 2015,
ENVIRON had alerted the TCEQ that Hy-Bon, as successor-in-interest to
EndDevices, was potentially responsible for the presence of TCE and any resulting
contamination. According to Weatherford, Hy-Bon and EndDevices operated in
close proximity to an upgradient monitoring well located northwest of the Site and,
in prior decades, had utilized TCE and Freon 113 in its manufacture of electronic
components.
Within days, Weatherford provided the TCEQ with ENVIRON’s interim
APAR, which “outlined the history and operations, previous investigations, offsite
sources, geology, and hydrogeology” and “recommended the installation of [ten]
additional [monitoring wells].” Although the TCEQ agreed that an offsite
contributor was likely, it maintained its contention that “sufficient evidence
demonstrated that Weatherford used TCE during its operations” and, thus, that
Weatherford’s operations were also a source and cause of the contamination.
Weatherford disputed this contention.
4
In March of 2016, Weatherford submitted a final APAR and an interim
Response Action Plan (RAP) to the TCEQ. In a response letter dated April 15, 2016,
the TCEQ tentatively approved Weatherford’s APAR, subject to Weatherford’s
responses to an enclosed list of comments and Weatherford’s revision of a section of
the APAR. In a subsequent response letter dated April 25, 2016, the TCEQ approved
Weatherford’s interim RAP.
Ramboll Energy (Ramboll)—successor to ENVIRON—prepared an “Off-Site
Investigation Summary” dated August 11, 2016 (the Ramboll Report). The Ramboll
Report provided that “the primary obstacle to completing Weatherford’s
investigation was the denial of access to a utility easement behind the EndDevices
(and subsequently Hy-Bon) property to access [the City’s] sewer system, which it
believed was one of the sources of TCE contamination in the groundwater plume.”
Ramboll concluded that ENVIRON’s 2013 investigation “revealed no evidence that
Weatherford or its predecessors or successors” were responsible for the release of
TCE or Perc on the Site. In addition to its initial Report, Ramboll prepared the final
RAP, dated September 2, 2016. Ramboll’s RAP proposed methods for remediating
the contamination, and it concluded that “TCE leaking from the sanitary sewer line
into adjacent soil was the source area of Perc in the groundwater.”
In its pleadings, Weatherford alleged that it complied with the RAP, which in
turn caused it to expend millions of dollars to investigate and respond to the
conditions at the Site. With respect to the City, Weatherford alleged that:
[The City] owned and operated the sewer systems running adjacent to
the Site and the affected water wells. [The City] also permitted
EndDevices and Hy-Bon to dispose of hazardous waste, including the
Contaminants of Concern, through its sewer system. During Ramboll’s
investigation, it identified the sewer system as a likely source of
contamination of the Site and affected water wells.
(Emphasis added). As such, Weatherford asserted a contribution claim against the
City for the response costs it incurred under the SWDA.
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B. The City’s Response
In its plea to the jurisdiction, the City contended that Weatherford’s factual
allegations did not give rise to any liability on behalf of the City under the SWDA
and that governmental immunity barred the claims that Weatherford had asserted
against it. In support of its plea, the City filed, among other things, a declaration by
Carl Craigo, the City’s Director of Utilities. Craigo’s declaration provided in part:
4. The City owns and operates a domestic wastewater treatment plant
(“WWTP”) . . . .
5. The City’s domestic WWTP is subject to Texas Pollutant Discharge
Elimination System Permit No. WQ0010223001 (the “Discharge
Permit”), which regulates [its] treatment of raw domestic
wastewater and subsequent discharge.
6. The City has not been required to maintain a TCEQ-approved
Pretreatment Program historically, and prior to the current Discharge
Permit, no reference to a TCEQ approved Pretreatment Program
existed in [the City’s] previous permits.
7. In the absence of a TCEQ-mandated Pretreatment Program, the City
has historically maintained control over discharges to its wastewater
collection system by issuing Discharge Licenses to industries that
seek to discharge into the City’s wastewater collection system. That
process is robust and requires [the City’s] approvals prior to any
discharge into the City’s wastewater collection system.
8. Upon a diligent search, the City has no Discharge License records
for either Hy-Bon Engineering Company, Inc. or EndDevices at any
point in history, including during the time frame . . . alleged by
[Weatherford] in the current litigation against the City . . . .
9. As such, [the City] has never known of, nor has it ever identified
Hy-Bon and EndDevices as entities contributing wastewater to [the
City’s] wastewater collection system.
10.[Weatherford] ha[s] never contacted [the City] to discuss the
existence of any release from [the City’s] wastewater collection
system, nor to discuss any cost recovery for any alleged release of
contaminants. The first occasion of [the City’s] contact from
[Weatherford] was their filing of the current litigation . . . .
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The City also filed objections and a motion to strike Weatherford’s responsive
evidence to the City’s plea, including the Ramboll Report.
We note that, in Weatherford’s response to the City’s plea, Weatherford
alleged that Ramboll interviewed a former employee of EndDevices. This individual
informed Ramboll that, during his employment with EndDevices, “it was common
practice to dispose of TCE down the sink.” This practice continued, according to
the unnamed former employee, for over ten years—“with the written approval of
[the City].” However, Weatherford further explained that, “Ramboll’s efforts to
locate and obtain the written approval from the City have not been successful.”
C. The Hearing
On October 21, 2020, the day after Weatherford filed its second amended
petition, the trial court held a hearing on the City’s plea to the jurisdiction and motion
to strike. After considering the evidence and arguments, in an order dated
October 28, 2020, the trial court granted the City’s plea to the jurisdiction and
dismissed all claims that Weatherford had asserted against the City with prejudice.
Additionally, the trial court sustained, in part, the City’s objections and motion to
strike portions of the Ramboll Report.
In its sole issue, Weatherford contends that, because the SWDA waives the
City’s governmental immunity, the trial court erred when it granted the City’s plea
and dismissed Weatherford’s cost-recovery claims for lack of subject-matter
jurisdiction. We disagree and affirm the trial court’s order.
II. Standard of Review
Before a court may dispose of a case, it is essential that the court possess
subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54
(Tex. 2000). Whether a trial court has subject-matter jurisdiction over a case is a
question of law that we review de novo. Harris Cnty. v. Annab, 547 S.W.3d 609,
612 (Tex. 2018) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
7
226 (Tex. 2004)); Ector Cnty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—
Eastland 2004, no pet.).
III. Analysis
A. Governmental Immunity
The term “sovereign immunity” applies to the State and the divisions of state
government. Goodson v. City of Abilene, 295 S.W.3d 692, 694 (Tex. App.—Eastland
2009, no pet.). Although the terms “sovereign immunity” and “governmental
immunity” are often used interchangeably, “governmental immunity” is the proper
term to use when referring to political subdivisions of the State, such as cities,
counties, and school districts. Id. Governmental immunity operates like sovereign
immunity. Therefore, if the State retains sovereign immunity, its political
subdivisions, such as the City in the case before us, also retains governmental
immunity. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Governmental immunity embraces two concepts: immunity from suit and
immunity from liability. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374
(Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Courts do
not possess subject-matter jurisdiction over a claim that is asserted against a
governmental defendant that is immune from suit unless the State has expressly
consented to suit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003) (“Governmental immunity from suit defeats a [trial] court’s subject matter
jurisdiction.” (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)));
Montgomery Cnty. v. Veterans Land Bd. of Tex., 342 S.W.3d 219, 221–22 (Tex.
App.—Beaumont 2011, no pet.). On the other hand, immunity from liability is an
affirmative defense, not a matter of subject-matter jurisdiction; however, this
immunity must still be waived by the State. State v. Lueck, 290 S.W.3d 876, 880
(Tex. 2009); Miranda, 133 S.W.3d at 224. Because immunity from suit defeats a
8
trial court’s subject-matter jurisdiction, it is properly raised in a plea to the
jurisdiction. Miranda, 133 S.W.3d at 225–26.
A governmental entity, such as the City, retains its immunity unless the
legislature clearly and unambiguously waives it. Dohlen v. City of San Antonio, 643
S.W.3d 387, 392 (Tex. 2022) (citing Tooke, 197 S.W.3d at 330). The party seeking
relief against a governmental entity bears the burden of alleging facts that
affirmatively demonstrate the trial court’s jurisdiction to hear the case. Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Further, “when the
Legislature conditions an immunity waiver on the existence of a statutory violation,
the elements of the violation are jurisdictional facts.” Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 784 (Tex. 2018).
B. Plea to the Jurisdiction
A plea to the jurisdiction is a dilatory plea and a proper method by which to
challenge a trial court’s subject-matter jurisdiction. Blue, 34 S.W.3d at 554. The
purpose of a plea to the jurisdiction is to defeat a pleaded cause of action without
reaching the merits. Id. A plea to the jurisdiction may challenge the pleadings, the
existence of jurisdictional facts, or both. Clark, 544 S.W.3d at 770; City of Merkel v.
Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied). When the
plea challenges the existence of jurisdictional facts, as in the case before us, we must
move beyond the pleadings and consider evidence when necessary to resolve the
jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction
and the merits of a claim. Clark, 544 S.W.3d at 770–71 (citing Blue, 34 S.W.3d at
555). In such cases, the standard of review mirrors that of a traditional summary
judgment. Id. at 771 (citing Miranda, 133 S.W.3d at 225–26).
If the plaintiff’s factual allegations are challenged with supporting evidence
necessary to the consideration of the plea to the jurisdiction, the plaintiff must
raise at least a genuine issue of material fact to overcome the challenge to the trial
9
court’s subject-matter jurisdiction and avoid dismissal. Id. (citing Miranda, 133
S.W.3d at 221). When we determine whether a material fact issue exists, “we must
take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor.” Id. We cannot, however,
disregard evidence that is necessary to show context; nor can we disregard evidence
and inferences unfavorable to the plaintiff if reasonable jurors could not. Id. (citing
City of Keller v. Wilson, 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005)).
Here, Weatherford asserts that the SWDA waives the City’s immunity from
suit and, thus, that the trial court erred when it granted the City’s plea to the
jurisdiction. The City maintains that Weatherford 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. For the reasons
discussed below, we agree with the City that Weatherford’s cost-recovery action is
barred because Weatherford failed to raise a genuine issue of material fact as to
whether the SWDA’s waiver of immunity applies to any alleged act by the City.
C. The SWDA
Codified in the Texas Health and Safety Code, the SWDA’s express purpose
is “to safeguard the health, welfare, and physical property of the people and to
protect the environment by controlling the management of solid waste, including
accounting for hazardous waste that is generated.” HEALTH & SAFETY § 361.002(a)
(emphasis added). As such, the SWDA provides mechanisms for the “clean-up” of
solid waste and authorizes a “person” to recover the costs of remediation from other
“persons”—including a “governmental subdivision”—who are responsible for the
waste. R.R. St. & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 238 (Tex. 2005); see
HEALTH & SAFETY § 361.003(23) (West Supp. 2021) (defining “person” under the
SWDA); see also HEALTH & SAFETY §§ 361.272, .197, .344.
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To establish a viable cost-recovery claim under the SWDA, a plaintiff must
prove:
(1) the defendant is a “person responsible for solid waste” as defined in
[S]ection 361.271; 4
(2) the [TCEQ] approved the plaintiff’s removal or remedial action;
(3) the action was necessary to address a release or threatened release
of solid waste;
(4) the costs of the action were reasonable and necessary; and
(5) the plaintiff made reasonable attempts to notify the defendant of
both the release and the plaintiff’s intent to take steps to eliminate the
release.
R.R. St. & Co., 166 S.W.3d at 240 (citing HEALTH & SAFETY § 361.344); e.g.,
Montfort Square Shopping Ctr., Ltd. v. Goodyear Tire & Rubber Co., No. 3:10-CV-
1673-D, 2012 WL 2358163, at *8 (N.D. Tex. June 21, 2012); Aviall Servs. Inc. v.
Cooper Indus., LLC, 694 F. Supp. 2d 567, 574 (N.D. Tex. 2010). In this case, the
parties dispute concerns the first element: whether the City is a person responsible
for solid waste under the SWDA. 5
The SWDA prescribes four categories of “persons responsible for solid
waste.” See HEALTH & SAFETY § 361.271(a)(1)–(4). As relevant here, a “person”—
i.e., “an individual, corporation, organization, government or governmental
subdivision or agency, business trust, partnership, association, or any other legal
entity”—is responsible for solid waste if the person:
(1) is any owner or operator of a solid waste facility; [or]
....
(3) by contract, agreement, or otherwise, arranged to process, store, or
4
See HEALTH & SAFETY § 361.271.
We note that, although Weatherford has requested that we take judicial notice of the City’s status
5
as a municipality, the City does not dispute that it falls within the SWDA’s definition of “person” as a
governmental subdivision.
11
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 . . . .
Id. §§ 361.003(23) (emphasis added), .271(a)(1), (a)(3)(A)–(B). “Solid waste
facility” means:
all contiguous land, including structures, appurtenances, and other
improvements on the land, used for processing, storing, or disposing of
solid waste. The term includes a publicly or privately owned solid
waste facility consisting of several processing, storage, or disposal
operational units such as one or more landfills, surface impoundments,
or a combination of units. The term does not include a pyrolysis or
gasification facility.
Id. § 361.003(36). For purposes of the SWDA, “solid waste” means:
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 . . . .
Id. § 361.003(35)(A)(i) (emphasis added). The SWDA, therefore, waives immunity
if a governmental subdivision, such as the City, is responsible for solid waste. R.R.
St. & Co., 166 S.W.3d at 240 (holding that satisfaction of Section 361.271(a) is the
first element of an SWDA cost-recovery claim); see HEALTH & SAFETY
§§ 361.003(23), .271(a). Because a statutory violation is necessary to establish an
immunity waiver under the SWDA, “jurisdiction and the merits intertwine.” Clark,
544 S.W.3d at 783; e.g., Zumwalt v. City of San Antonio, No. 03-11-00301-CV, 2012
WL 1810962, at *3 (Tex. App.—Austin May 17, 2012, no pet.) (mem. op.).
In this case, Weatherford asserts that the City is “a [governmental subdivision]
responsible for solid waste” under either of the following two scenarios: (1) as an
12
owner or an operator of a solid waste facility, or (2) as an arranger of the disposal of
solid waste at a solid waste facility. See HEALTH & SAFETY § 361.271(a)(1), (a)(3);
see also id. § 361.003(23). Therefore, taking as true all evidence that is favorable to
Weatherford, we must determine if a material fact issue exists as to whether, under
the SWDA, the City is either (1) an “owner” or “operator” of a solid waste facility
or (2) an “arranger” of the disposal of solid waste at a solid waste facility.
When we construe a statute, our primary objective is to give effect to the
legislature’s intent. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage
Comm’n, 518 S.W.3d 318, 325 (Tex. 2017); First Am. Title Ins. Co. v. Combs, 258
S.W.3d 627, 631–32 (Tex. 2008). Given the SWDA’s remedial purpose, we construe
the relevant statutory language liberally to give effect to that purpose. R.R. St. &
Co., 166 S.W.3d at 238.
As we have discussed, the City contends that it retains its governmental
immunity from suit under the SWDA unless it is determined to be responsible for
solid waste. Clearly, Section 361.271(a)(1) conditions a person’s responsibility for
solid waste on the person’s status as “any owner or operator of a solid waste facility.”
HEALTH & SAFETY § 361.271(a)(1). However, and importantly, the record before us
shows that Weatherford’s allegations against the City, as raised in Weatherford’s
pleadings, are premised on the City’s operation of a domestic sewer system—not the
City’s disposal of solid waste. In its second amended petition, Weatherford
specifically refers to and identifies the City’s sewer systems in connection with the
allegations that it claims establish the City’s liability. The City, in support of its plea,
explained that its “WWTP system collects domestic sewage for conveyance and
subsequent treatment” (emphasis added). Therefore, we hold that, pursuant to the
statute’s unambiguous terms, the SWDA’s cost-recovery provision does not apply to
the allegations and subject matter—i.e., a domestic wastewater collection system—
that form the factual basis of the claims that Weatherford has asserted against the
13
City in this case. See id. § 361.003(35)(A)(i) (“‘Solid waste’ . . . does not
include . . . solid or dissolved material in domestic sewage.”).
Further, the City negated Weatherford’s factual allegations that the City
authorized EndDevices and Hy-Bon to dispose of waste into the City’s domestic
wastewater sewer system. Because Weatherford failed to raise at least a genuine
issue of material fact to overcome the City’s jurisdictional challenge, we agree with
the City that neither its actions nor the allegations in Weatherford’s pleadings subject
the City to the provisions of the SWDA upon which Weatherford relies. Therefore,
Weatherford failed to establish a waiver of the City’s immunity under the statute.
Because the statutory definitions of “solid waste facility” and “solid waste”
are fatal to Weatherford’s cost-recovery claim against the City, we hold that the
governmental immunity waiver provisions contained in the SWDA do not apply to
the City in this case—regardless of whether the City is characterized as either (1) an
“owner” or “operator” of a “solid waste facility” or (2) an “arranger” of “solid
waste.” Accordingly, we overrule Weatherford’s sole issue on appeal.
IV. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
August 31, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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