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Click here for the full text of this decision FACTS:The owner of several dry-cleaning facilities filed this suit under the Texas Solid Waste Disposal Act seeking to recover costs that it incurred to remediate perchloroethylene (PCE) contamination. Pilgrim purchased PCE and equipment from R.R. Street & Co. Inc., which designed, manufactured, and distributed dry-cleaning equipment and products. For nearly 40 years, from 1958 to 1997, Pilgrim’s principal contact at Street was Harold Corbin. Corbin sold Pilgrim equipment that recycled dirty PCE for reuse. Following common industry practice, Pilgrim disposed of used cartridge filters that had collected PCE by simply discarding them in dumpsters located on the premises. Soils and unevaporated PCE were also discarded by Pilgrim in dumpsters, again pursuant to industry practice at the time. Corbin advised Pilgrim to dispose of PCE-contaminated “separator water” by pouring it down the drain, which Pilgrim did. Corbin also advised Pilgrim to dispose of PCE-contaminated separator water that remained after the clothes-drying process in the same way. On his visits to Pilgrim’s facilities, Corbin conducted titration tests to determine the concentration of the plant’s detergent. He performed the tests by combining a 1.25-cc sample of PCE, taken from a dry-cleaning machine, with other chemicals. Corbin used the results of these tests to evaluate the plant’s level of success in using PCE efficiently. When finished with the test vial, Corbin testified that he would dump the approximately 40 cc’s of waste fluid down the sink or toilet. According to Corbin, he likely did so on thousands of occasions. Pilgrim sued Street and several other PCE and PCE-equipment manufacturers and distributors. All defendants but Street settled with Pilgrim before trial. The trial court refused Street’s request to submit jury questions regarding Street’s arranger liability under SWDA, deciding the questions as a matter of law in Pilgrim’s favor and apportioning $1.5 million of the approximately $7 million cleanup costs to Street. The jury decided Pilgrim’s remaining claims in Street’s favor, and both parties appealed. The court of appeals affirmed the judgment in Street’s favor on the common-law and DTPA claims (Pilgrim does not complain of that portion of the judgment in this court). With regard to the SWDA portion of the judgment, the court of appeals affirmed in part and reversed in part. HOLDING:Reversed and remanded. The court concludes that analyzing arranger status based on the totality of the circumstances under guidelines that the federal cases have established pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act is most faithful to the statutory language and purposes of SWDA. The facts of each case must be examined to determine whether the requisite causal nexus exists between the defendant’s conduct and the disposal of solid waste. In examining the facts, courts should take into consideration whether a defendant: owned or possessed the solid waste in question; had the authority to make disposal decisions; had the obligation to make disposal decisions; exercised control over decisions regarding the waste’s disposal; or actually disposed of the solid waste. Any single factor may or may not be dispositive, depending upon the circumstances presented. The court declines to hold that actual involvement in waste disposal is never sufficient without the authority to control the disposal. Such a holding would allow a party to escape arranger status simply by acting outside the scope of its authority, which is contrary to the broad, remedial purpose of SWDA. As guidance in a practical application of the test, the court finds helpful the “actual control” half of the line of cases discussing when and to what extent a general contractor owes a common law duty of care to a subcontractor’s employees. Similarly in the context of arranger liability, the court believes the inquiry should focus on the degree of the defendant’s actual control over the decision regarding the specific method or manner of disposal. CERCLA’s definition of hazardous substances is not affected by either the statutory (42 U.S.C. 6903(27)) or regulatory (40 C.F.R. 261.4(a)) sewage exclusions of the Resource Conservation and Recovery Act. However, in SWDA 361.003(34), the Legislature chose to limit the definition of solid waste by both exclusions. Accordingly, if Corbin’s disposal of the test-vial PCE mixture fits within RCRA’s statutory or regulatory domestic sewage exclusions, those exclusions must be given effect. Because there is a fact issue as to whether the pipes at Pilgrim’s property leaked, the court cannot say as a matter of law that the statutory domestic sewage exclusion did not prevent the waste Corbin disposed of from qualifying as “solid waste.” There is also a fact issue as to whether the mixture Corbin disposed of falls within the regulatory domestic sewage exclusion, which is arguably broader than the statutory exclusion. As with CERCLA, there is no causation requirement in the language of SWDA with regard to maintaining a cost-recovery action or proving that a defendant is a “person responsible for solid waste. Although Street refers to the PCE contained in the discarded test-vial mixture as “trace amounts,” the federal courts have uniformly held that there is no de minimis exception to responsible-person liability. Pilgrim contends that Street arranged to process solid waste via Corbin’s selection of the equipment Pilgrim used to recycle the PCE, along with his supervision and monitoring of the equipment. Pilgrim bases its argument on the definition of “processing” in SWDA 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.” Texas Health & Safety Code 361.003(25). The court rejects this argument. In order for the recycling process in question to constitute the “processing” of solid waste, the PCE being recycled must itself qualify as solid waste. It does not, the court finds. Because no appellate court had written about the proper submission of a SWDA claim when the case was tried, the court declines to render judgment in favor of Street and holds that a remand in the interest of justice is appropriate. There is a fact issue that must be resolved before the legal determination of Street’s arranger status can be made. The court holds that the court of appeals erred in failing to remand the entire SWDA claim, both the liability elements and damages, for a new trial. OPINION:Harriet O’Neill, J., delivered the court’s opinion. Johnson, J., did not participate in the decision.

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