Southeast Texas Environmental v. Bp Amoco Chemical

• Decision Date: 17 May 2004
• Docket Number: No. CIV.A. G-03-969.,CIV.A. G-03-969.
• Citation: 329 F.Supp.2d 853
• Parties: SOUTHEAST TEXAS ENVIRONMENTAL, L.L.C. and Regor Property, L.L.C., Plaintiffs, v. BP AMOCO CHEMICAL COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

329 F.Supp.2d 853

SOUTHEAST TEXAS ENVIRONMENTAL, L.L.C. and Regor Property, L.L.C., Plaintiffs, v. BP AMOCO CHEMICAL COMPANY, et al., Defendants.

No. CIV.A. G-03-969.

United States District Court, S.D. Texas, Galveston Division.

May 17, 2004.

Frank W. Mitchell, Maloney Martin & Mitchell, Houston, TX, for Southeast Texas

Environmental, L.L.C., Regor Property LLC, plaintiffs.

Mary W. Koks, Winstead Sechrest et al., James T. McBride, Winsead Secrest et al., The Woodlands, Sonya Lillie Aston, Campbell George et al., Houston, TX, Robert T. Stewart, Attorney at Law, Austin, TX, Daniel V. Flatten, Jenkins and Gilchrist, Houston, TX, Janessa M. Glenn, Jenkens & Gilchrist PC, Austin, TX, Jeffrey Lawrence Diamond, Galloway Johnson et al., Houston, TX, Paul Bohannen, Andrews Kurth, The Woodlands, Thomas S. Henderson, III, Floyd Isgur et al., William Carroll Book, Jr., Tekell Book Matthews and Limmer, John Erik Nichols, Henslee Fowler et al., Bryan S. Dumesnil, Bracewell and Patterson, Houston, TX, James Daniel Payne, Guida Slavich et al., Dallas, TX, Brady Sherrod Edwards, Edwards & George LLP, Robert Carl Scruggs, King LeBlanc et al., Daniel F. Shank, Coats Rose et al., Houston, TX, Ronald B. Walker, Walker Keeling et al., Victoria, TX, Patricia A. Shaw, LeBoeuf Lamb, Pittsburg, PA, Kay Woods, LTV Steel Company Inc., Seven Hills, OH, Jeffrey S. Davis, Gardere Wynne et al., Kimberly Rose Stuart, Crain Caton et al., Lauri DeBrie Thanheiser, Jones Day, Houston, TX, Jack C. Brock, Mills Shirley et al., Galveston, Kirk F. Sniff, Strasburger & Price, Dallas, TX, Michael Hendryx, Strong Pipkin et al., Karen Kay Maston, Connelly Baker et al., Houston, TX, Brian Carl Newby, Cantey & Hanger LLP, Sarah K. Walls, Cantey & Hanger LLP, Fort Worth, TX, Gary W. Dugger, Dugger Associates, Marta Eugenia Montenegro, Dugger and Associates, David Matthew Bates, Gardere Wynne et al., Thomas O. Deen, McFatridge Baker et al., Robert E. Morse, III, Crain Caton & James, Kelly D. Brown, Crain Caton et al., Jim D. Hamilton, Ross Banks et al., Houston, TX, Douglas W. Poole, McLeod Alexander et al., Galveston, TX, Thomas N. Griffin, III, Parker Poe et al., Charlotte, NC, R. H. Wallace, Jr., Shannon Gracey et al., Fort Worth, TX, Joyce B. Margarce, Powers & Frost LLP, Steven E. Thompson, Attorney at Law, Houston, TX, Allen Eli Bell, Bell Turney et al., Austin, TX, Daniel James Darcy, Porto Trueheart et al., Houston, TX, Thomas N. Kiehnhoff, Reaud Morgan et al., Beaumont, TX, John B. Turney, Bell Turney Coogan, Austin, TX, William Larry Wilson, Attorney at Law, Pasadena, TX, for BP Amoco Chemical Company, Successor by Merger to Amoco Chemical Corporation, Exxon Mobil Corporation, Successor by Merger to Exxon Chemical Co USA, Marathon Oil Company, Marathon Petroleum Company, Sea Lion Technology, Inc., Successor by Merger to Sea Lion Chemmical Inc, Pharmacia Corporation, f/k/a Monsanto Company by Solutia, Inc., The Goodyear Tire & Rubber Company, Groendyke Transport, Inc., Corporation General Dynamics Corporation, Baker Petrolite Corporation fka Petrolite Corporation, Texas Instruments Incorporated, Nalco Company, Champion Technologies Inc, Lyondell Chemical Co., Rohm and Haas Company, on behalf of Southwest Specialty Chemicals, Inc., Thiokol Specialty Chemicals, NL Industries Inc, Dixie Chemical Company Inc., Ryder Airlines Services Inc. nka Aviall Services Inc., Cargill Incorporated, Basf Corporation, BP Products North America, Inc., Matlack Inc., Crystal Chemical Co., successor to Crystal Manufacturing Corporation, Marathon Oil Corp, Eltex Chemical & Supply Co. aka Philip Reclamation Services, Maxus Energy Corp, Successor to Diamond Shamrock Corporation, Ondeo Nalco Co., Successor to Nalco Chemical Company, Lyondell-Citgo Refining LP, Successor to Arco Chemical Company and Lyondell Chemical Worldwide Inc., Thiokol Corporation, Successor to ATV Aerospace Company Inc. and Southwest Specialty Chemicals Inc., Younger Brothers Inc, Mission Petroleum Carriers Inc., Successor to Ultramar DS Inc., Petrolite Inc., Mobil Chemical Company Inc., The Mason & Dixon Lines Incorporated, Griffin Corporation, Griffin Inc., Chemical Leaman Tank Lines Inc., NL Industries (USA) Inc., Lincoln Property Co, Southern Pacific Transportation Company, Betz Laboratories Inc., Successor to GE Betz Inc., Velsicol Chemical Corp, Ryder Bulk Transportation Services aka Ryder Transportation Services, Evans Harvey Corp LLC, Successor to Evans Cooperage Company Inc., Evans Cooperage Co, Steere Tank Lines Inc, Successor to Angrais Inc., Dow Badische Company, Successor to Badische Corporation, Trident Fractionators Inc., Successor to Cities Service Fractionators Inc., Gulf Oil Chemicals Company, Alcoa Inc., Successor to Aluminum Company of America, Georgia Tubing Corp, Successor to LTV Aerospace & Defense Company, CSA Limited Inc., Matheson Gas Products, Nippon Sanso USA Inc, Successor to Matheson Gas Products Inc., Power Cleaning Systems of Houston, Crown Cork & Seal Co Inc., Successor to Mundet Cork Corporation, PPG Industries Inc., BP Products North America, Inc. fka Amoco Oil Company, Amoco Oil Company dba American Oil Co., FMC Corp., Basf Corp., Union Carbide Corp., Peterbilt Motors Company, Enterprise Products, Successor to Enterprise Transportation Co., Enterprise Transportation Inc., Carpenter Chemical Co., E. R. Carpenter LP, Successor by Merger to Carpenter Chemical LP, Weatherford Aerospace Inc, Successor by Merger to Chemical Dynamics Inc., P. Chem. Inc., Successor by Merger to Chemical Manufacturing Exchange Inc., Warren Petroleum Co LLC, Vam Pts Co., Channel Shipyard Company Inc., Evans Houston Corp., Successor by Merger to Evans Cooperage Co. Inc., Rexam Beverage Can Co., Successor to American National Can Co., Cargo Tank Cleaning Inc., Howell Hydrocarbons & Chemicals, Rme Petroleum, Successor to Champlin Petroleum Co., Tenn-USS Chemicals, Successor to USS Chemicals, Phibro Inc., Successor to Petrol Refining Inc. and Texas City Refining Inc., Southwest Galvanizing Inc., Chief Supply Corp, PVI Industries Inc. aka PVI Industries LLC, Pharmacia & Upjohn Company, Successor to Upjohn Co., Champion Chemicals Inc., Blentech Corp., Platzer Shipyard Inc., Dal-Worth Industries Inc., Garrison Industries Inc., Phoenix Oil Inc., Pa Inc., Rexene Polyolefins, a Division of Dart Industries Inc., Electro-Coatings Inc, Sherman Wire Co., Successor to Desoto Inc., Shell Oil Co., W. R. Grace & Co-Conn, Mcwhorter Technologies Inc., Chemlink Petroleum Inc., Amoco Corporation, Successor to Amoco Oil Co. and Amoco Texas Refining Co., Tool & Supply Inc, Calgon Corp, Best Service Tank Wahs Inc., Torque Petroleum Products, Tuboscope Vetco International LP, Successor to AMF Tuboscope Inc., Chevron U.S.A., Inc., defendants.

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

KENT, District Judge.

This lawsuit centers on the operation of a hazardous waste facility in Texas City, Galveston County, Texas. The case comes before the Court on removal from the 10th Judicial District Court of Galveston County, Texas. Now before the Court comes Plaintiffs' Motion to Remand. Because the Court lacks subject matter jurisdiction, Plaintiffs' Motion is hereby GRANTED.

I. Background

Plaintiffs characterize this lawsuit as the latest chapter in a saga of treachery perpetrated by "outlaw waste disposal operators." The case arises out of the operation of a 150-acre toxic and hazardous waste disposal facility located in Texas City, Texas, commonly known as the Malone Facility ("the Malone Facility" or "the Facility"). The Malone Service Company, Inc. owned and operated the Facility for over 30 years. In 1997, the Texas Natural Resource Conservation Commission ("TNRCC"), now known as the Texas Commission on Environmental Quality ("TCEQ"), revoked the Malone Facility's permits, causing the Facility to cease operations. Malone Service Company, Inc. and its parent company, Malone Company, Inc. (collectively "Malone") filed for Chapter 7 bankruptcy on July 15, 1998. The Chapter 7 Trustee filed a Motion to Sell the Malone Facility to Plaintiff Southeast Texas Environmental, L.L.C., on August 4, 1999. The bankruptcy court signed its Order granting the Motion to Sell on August 13, 1999.

Plaintiffs purchased the Facility on September 24, 1999. Plaintiffs maintain that they purchased the Facility innocently and in good faith with the intention of restoring operations in a lawful manner. Prior to the purchase, the Texas Attorney General and the TNRCC appointed Plaintiffs caretakers of the Facility with the approval of the United States Bankruptcy Court. Plaintiffs decided to purchase the Facility, despite its checkered past, because they believed that it could generate a multimillion dollar revenue stream for several years. Plaintiffs intended to use the toxic sludge for alternative energy sources, fuels, and refining products, and they planned to renew the operation of two deep-well injection disposal wells. Plaintiffs also intended to retrofit the Facility to serve the adjacent Texas City Container Port Terminal.

These plans ground to a halt when the EPA determined that there had been a release or threatened release of hazardous substances at the Facility. On October 26, 1999, the Superfund Division Director of EPA Region 6 signed an Action Memorandum declaring that conditions at the Malone Facility posed an imminent and substantial threat to the environment and the public health. On June 14, 2001, after an investigation of the site, the EPA declared the Facility a Superfund site and placed the waste pit on the National Priority List for Superfund cleanup. The EPA sent general notice letters to a number of potentially responsible parties ("PRPs"), including Plaintiff Southeast Environmental, L.L.C.¹ See Malone Cooperating Parties' Response to Plaintiffs' Motion to Remand, Exh. B.

Plaintiffs filed their Original Petition on June 12, 2003 in the 10th Judicial District Court of Galveston County, Texas. Plaintiffs sued over...