Petition for Writ of Certiorari — Texas Aromatics, L.P., et al., Petitioners v. Intercontinental Terminals Company, L.L.C.
Supreme Court briefFeb 26, 2024
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Fifth Circuit
(October 27, 2023) . . . . . . . . . . . . . App. 1
Appendix B Judgment in the United States Court
of Appeals for the Fifth Circuit
(October 27, 2023) . . . . . . . . . . . . App. 18
Appendix C O r d e r
Adopting
Report and
Recommendation in the United States
District Court for the Southern
District of Texas
(August 24, 2022) . . . . . . . . . . . . App. 21
Appendix D Magistrate Judge’s Report and
Recommendation in the United States
District Court for the Southern
District of Texas
(July 2, 2021). . . . . . . . . . . . . . . . App. 25
Appendix E Order Denying Petition for Rehearing
En Banc in the United States Court of
Appeals for the Fifth Circuit
(November 28, 2023) . . . . . . . . . . App. 53
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 22-20456
[Filed October 27, 2023]
________________________________________________
ROGELIO LOPEZ MUNOZ
)
Plaintiff,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant,
)
--------------------------------------------------------------)
TEXAS AROMATICS, L.P.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
RIO ENERGY INTERNATIONAL, INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-------------------------------------------------------------------- )
App. 2
GUNVOR USA, L.L.C.,
Plaintiff-Appellant,
)
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
CASTLETON COMMODITIES MERCHANT
)
TRADING L.P.; CASTLETON COMMODITIES
)
MERCHANT ASIA COMPANY PTE, LIMITED,
)
Plaintiffs—Appellants,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
STOLT TANKERS, B.V.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
PETREDEC TRADING (U.S.), INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee.
)
_______________________________________________ )
App. 3
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:19-CV-1460, 4:20-CV-1387,
4:20-CV-1863, 4:20-CV-1867,
4:20-CV-1930, 4:21-CV-846,
4:22-CV-201
______________________________
Before JOLLY, SOUTHWICK, and OLDHAM,
Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The Oil Pollution Act of 1990 (“OPA”)1 and
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (“CERCLA”)2
both create comprehensive remedial schemes that
apportion liability for the costs of removing
environmental pollutants. But OPA, unlike CERCLA,
expressly allows for recovery of purely economic losses.
Liability under both statutes depends on the type of
pollutant released into the environment. As its title
suggests, OPA deals only with oil, while CERCLA deals
with “hazardous substances.”
But which statute governs when oil is mixed with
hazardous substances? That is the question in this
case.
1
Pub. L. No. 101-380, 104 Stat. 484 (codified as amended in
scattered sections of 33 U.S.C.).
2
Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended in
scattered sections of 26, 33, and 42 U.S.C.).
App. 4
In March of 2019, Intercontinental Terminals
Company, LLC (“ITC”) spilled a mixture of oil and
hazardous substances into the Houston Ship Channel.
In response to the spill, Plaintiffs filed this suit against
ITC, which seeks economic loss damages under OPA.3
Their OPA claims rest on one argument: that OPA’s
definition of “oil” includes mixtures of oil and CERCLAregulated hazardous substances.
The district court granted summary judgment in
favor of the defendant, holding that the mixed spill
containing oil and hazardous substances is not “oil” as
defined by OPA. Consequently, it dismissed each of the
Plaintiffs’ complaints. For the reasons set out below, we
AFFIRM the judgment of the district court.
I.
A.
Because this case involves the interplay of OPA and
CERCLA, we provide a brief overview of the two
statutes before turning to the facts and procedural
history.
In 1980, Congress enacted CERCLA. See OHM
Remediation Servs. v. Evans Cooperage Co., 116 F.3d
1574, 1578 (5th Cir. 1997). Its purpose is to facilitate
the cleanup of hazardous substances that have been
3
The parties to this appeal asserted exclusively OPA claims in
their complaints. They are Texas Aromatics, L.P., Rio Energy
International, Inc., Gunvor USA, L.L.C., Castleton Commodities
Merchant Trading, L.P., Castleton Commodities Merchant Asia
Co. Pte., Petredec Trading (U.S.) Inc., and Stolt Tankers, B.V. We
will call them “Plaintiffs.”
App. 5
released into the environment and to shift the costs of
the environmental response to those responsible for
such a release. Id. To effectuate that purpose, CERCLA
allows private parties to bring cost-recovery claims
against responsible parties for the costs associated with
responding to the release of “hazardous substance[s].”
See Uniroyal Chem. Co. v. Deltech Corp., 160 F.3d 238,
242 (5th Cir. 1998) (citing 42 U.S.C. § 9607(a)),
modified on reh’g, 160 F.3d 238 (5th Cir. 1999). Thus,
liability under CERCLA depends on what constitutes
a “hazardous substance.”
CERCLA defines “hazardous substance” by
reference to substances listed under various other
federal statutes. See 42 U.S.C. § 9601(14). But
CERCLA expressly excludes from its “hazardous
substance” definition “petroleum, including crude oil or
any fraction thereof which is not otherwise specifically
listed or designated as a hazardous substance.” Id. This
exclusion is known as the “petroleum exclusion.” E.g.,
Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co.,
704 F.3d 413, 428 n.4 (5th Cir. 2013).
Ten years after CERCLA was enacted, and in the
wake of the Exxon Valdez oil spill, Congress passed
OPA in an effort “to streamline federal law so as to
provide quick and efficient cleanup of oil spills,
compensate victims of such spills, and internalize the
costs of spills within the petroleum industry.” Rice v.
Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)
(citing S. REP. NO. 101-94, at 1–2 (1989), as reprinted in
1990 U.S.C.C.A.N. 722, 723). To that end, OPA, like
CERCLA, creates a comprehensive scheme that
governs and apportions liability for the costs of
App. 6
responding to oil spills. See Savage Servs. Corp. v.
United States, 25 F.4th 925, 931 (11th Cir. 2022). OPA
imposes strict liability on parties responsible for the
discharge of oil in Section 1002(a) of the statute,
codified at 33 U.S.C. § 2702(a). That section provides
the following:
[E]ach responsible party for . . . a facility from
which oil is discharged, or which poses the
substantial threat of a discharge of oil, into or
upon the navigable waters or adjoining
shorelines . . . is liable for the removal costs and
damages specified in [Section 2702(b)] that
result from such incident.
33 U.S.C. § 2702(a) (emphasis added). Thus, liability
under OPA is limited to the discharge or “substantial
threat of a discharge” of “oil.” OPA defines “oil” as:
oil of any kind or in any form, including
petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil, but
does not include any substance which is
specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F)
of section 101(14) of the Comprehensive
Environmental Response, Compensation, and
Liability Act [(CERCLA)] (42 U.S.C. [§] 9601)
and which is subject to the provisions of that
Act[.]
33 U.S.C. § 2701(23) (emphasis added). As one can see,
OPA’s definition of “oil” explicitly excludes substances
covered by CERCLA in its “hazardous substance”
exclusion.
App. 7
Critically here, as we have noted, OPA, unlike
CERCLA, allows injured parties to recover economic
losses resulting from oil spills. Id. § 2702(b)(2)(E).
B.
Against this statutory backdrop, we return to the
case at hand. Intercontinental Terminals Company
(“ITC”) operates a chemical-storage facility at Deer
Park, Texas. On March 17, 2019, a fire broke out at
that facility. As emergency crews worked to control the
fire, various tank products, fire water, and firefighting
foam accumulated in ITC’s secondary containment
area. The secondary containment area was enclosed by
ITC’s “secondary containment wall surrounding the
tank farm.” But on March 22, 2019, damage to the
secondary containment wall caused it to collapse
partially, resulting in the discharge of an estimated
470,000 to 523,000 barrels of the following products:
fire water, firefighting aqueous film forming foams,
benzene, ethylbenzene, naphtha, xylene, toluene,
pyrolysis gas, and refined oils. Those unwelcomed
products ultimately entered the Houston Ship Channel
(“HSC”). Jumping into action, the Coast Guard
temporarily restricted traffic on a portion of the HSC.
The EPA coordinated response efforts with federal
and state agencies, including the Coast Guard and
Texas Commission on Environmental Quality
(“TCEQ”). The agencies involved with the spill clean-up
determined that, of the 50 chemicals released, 17 were
“hazardous substances” under CERCLA, and five were
“oils” under OPA. Because the spill contained both
hazardous substances and oil, the EPA initially opened
a “CERCLA fund” and the Coast Guard opened an
App. 8
account with the Oil Spill Liability Trust Fund
(“OSLTF”) administered under OPA. Later, sampling
by the TCEQ confirmed that the spill was oil mixed
with hazardous substances. And as a result, the EPA
and Coast Guard determined that the spill was a
CERCLA incident. Thus, the Coast Guard closed the
OSTLF account and transferred response costs to the
CERCLA fund.
Once the response costs were transferred to the
CERCLA fund, some claimants unsuccessfully applied
for compensation from the Coast Guard’s National
Pollution Fund Center (“NPFC”), which administers
the OSLTF. In denying those claims, the NPFC
concluded that the mixed spill of both CERCLAregulated hazardous substances and OPA oil fell within
CERCLA’s definition of hazardous substances and
therefore was excluded from OPA’s definition of oil.
Other claimants sued ITC under OPA, alleging
economic losses due to interruptions of their business
activities caused by closures of the HSC.
On April 17, 2020, Texas Aromatics filed its
complaint against ITC and asserted two claims
exclusively under OPA: (1) monetary damages for
violations of OPA and (2) declaratory relief that OPA
applies. Several other parties filed substantially
identical complaints, which the district court
consolidated herein.
ITC and Plaintiffs agreed that resolving the
threshold issue of OPA’s applicability would save time
and expense. And so, in the early stages of the
proceeding, the parties jointly filed a motion for leave
to allow ITC to file a motion for summary judgment
App. 9
seeking dismissal of all OPA claims. The court granted
the motion for leave. On September 4, 2020, ITC filed
its motion for summary judgment limited to the issue
of OPA’s applicability. ITC argued that OPA did not
apply as a matter of law because the spill contained a
mixture of both oil and CERCLA-regulated hazardous
substances. The asserted claims against ITC were,
therefore, covered exclusively under CERCLA. The
Plaintiffs opposed that motion, arguing that both
CERCLA and OPA can apply to a mixed spill of oil and
CERCLA-regulated hazardous substances.
On July 2, 2021, the Magistrate Judge issued a
report and recommendation (“R&R”) recommending
that the district court grant ITC’s motion for summary
judgment. The R&R surveyed the text and structure of
the statutes, their legislative histories, administrative
guidance. It concluded that “OPA and CERCLA are
mutually exclusive of each other” and that OPA “does
not apply to spills containing a mixture of oil and
CERCLA-regulated hazardous substances.” The R&R
rejected Plaintiffs’ argument that CERCLA and OPA
could both apply to mixed spills. It reasoned that the
Plaintiffs could not bring their OPA claim because the
spill at issue—a spill containing both oil and hazardous
substances—is not within the scope of the OPA’s
definition of “oil.” That is, the “hazardous substance”
exception in OPA’s definition of “oil” excludes
substances covered by CERCLA, including mixtures of
oil and hazardous substances that cannot be
segregated.
App. 10
In a three-page order, the district court concluded
that the R&R was “well founded and that it should be
adopted,” granted ITC’s motion for summary judgment,
and entered final judgment in Plaintiffs’ consolidated
case.4 This appeal followed.
II.
The district court premised its summary judgment
decision on the proposition that the commingled spill of
oil and CERCLA-regulated hazardous substances is not
“oil” within the meaning of OPA. Accordingly, we will
review de novo the district court’s ruling on that
question of law. See Grant v. Dir., Off. of Worker’s
Comp. Programs, 502 F.3d 361, 363 (5th Cir. 2007)
(citation omitted).
III.
A.
As is always true in cases of statutory
interpretation, we begin with the text of the statute.
See In re DeBerry, 945 F.3d 943, 947 (5th Cir. 2019)
(“In matters of statutory interpretation, text is always
the alpha.”). “Statutory definitions control the meaning
of statutory words . . . in the usual case.” Burgess v.
United States, 553 U.S. 124, 129 (2008) (cleaned up);
see also Stenberg v. Carhart, 530 U.S. 914, 942 (2000)
4
The district court’s consolidated summary judgment order
dismissed all OPA claims against ITC. The Plaintiffs in this appeal
exclusively asserted OPA claims. Thus, the order was final as to
each of their complaints.
App. 11
(“When a statute includes an explicit definition, we
must follow that definition . . . .”).5
Thus, OPA’s definition of “oil” warrants repetition:
oil of any kind or in any form, including
petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil, but
does not include any substance which is
specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F)
of section 101(14) of [CERCLA] and which is
subject to the provisions of that Act.
33 U.S.C. § 2701(23). It would certainly seem that
OPA’s definition of “oil” explicitly carves out any
CERCLA-regulated substances in its “hazardous
substance” exclusion.
Plaintiffs contend, however, that the “hazardous
substance” exclusion’s plain and unambiguous terms
compel the conclusion that it does not apply to oil that
has been commingled with hazardous substances; that
is, since oil commingled with a hazardous substance is
not “specifically listed” as a hazardous substance under
CERCLA, OPA’s “hazardous substance” exclusion
should be narrowly construed so that only
unadulterated hazardous substance spills are
precluded from OPA coverage. We cannot agree.
5
We are aware of no federal court, aside from the district court in
this case, that has been required to interpret the definition of “oil”
under OPA as it relates to oil commingled with CERCLA
hazardous substances.
App. 12
B.
As earlier noted, OPA was enacted against the
backdrop of existing federal environmental laws,
including CERCLA. See United States v. Am. Com.
Lines, L.L.C., 759 F.3d 420, 424 (5th Cir. 2014). Thus,
although the scope of OPA’s “oil” definition presents a
question of first impression in this court, we are not
“painting on a blank canvas.” See Savage Servs. Corp.
v. United States, 25 F.4th 925, 943 (11th Cir. 2022).
“[W]here, as here, Congress adopts a new law
incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of
the interpretation given to the incorporated law, at
least insofar as it affects the new statute.” Lorillard v.
Pons, 434 U.S. 575, 581 (1978). Applied to this case, we
can assume that when Congress enacted OPA in 1990,
it was aware that courts had interpreted CERCLA’s
“hazardous substance” definition to include mixtures of
oil and hazardous substances.
To reiterate, CERCLA defines “hazardous
substance” to mean “any element, compound, mixture,
solution, or substance” designated as such under
CERCLA or other environmental statutes. See 42
U.S.C. § 9601(14). But CERCLA’s “hazardous
substance” definition explicitly excludes “petroleum,
including crude oil or any fraction thereof which is not
otherwise specifically listed or designated as a
hazardous substance….” Id.
In 1989, the Ninth Circuit became the first circuit
to address the scope of CERCLA’s petroleum exclusion.
In Wilshire Westwood Associates v. Atlantic Richfield
Corp., 881 F.2d 801, 810 (9th Cir. 1989), the court
App. 13
interpreted the petroleum exclusion also to exclude oil
products even when such products contain limited
amounts of certain CERCLA-regulated hazardous
substances, including components indigenous to
petroleum or additives acquired during the normal
refining process.
That same year, this court addressed the meaning
of the term “hazardous substance” under CERCLA, see
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir.
1989), when we held that CERCLA “fails to impose any
quantitative requirement on the term hazardous
substance.” Id. at 669. Stated differently, the particular
concentration of hazardous substances “regardless of
how low a percentage” is not relevant to liability
determinations under CERCLA. See B.F. Goodrich Co.
v. Murtha, 958 F.2d 1192, 1200 (2d Cir. 1992). Thus,
“[w]hen a mixture or waste solution contains hazardous
substances, that mixture is itself hazardous.” Id. at
1201.
Finally, although it is subordinate to the language
of the statute, we should at least take note of the EPA’s
early interpretation of the scope of CERCLA’s coverage.
In a 1987 memorandum, the EPA considered whether
oil that has been contaminated by hazardous
substances is excluded from CERCLA. It explained:
The legislative history [of CERCLA] clearly
contemplates that the petroleum exclusion will
not apply to mixtures of petroleum and other
toxic materials since there would not be releases
‘strictly of oil.’… [I]t was clear that the omission
of oil coverage [from CERCLA] was intended to
cover spills of oil only, and there was no intent to
App. 14
exclude from the bill mixtures of oil and
hazardous substances.
Memorandum from Francis S. Blake, Gen. Couns., U.S.
Env’t Prot. Agency, to J. Winston Porter, Assistant
Adm’r for Solid Waste and Emergency Response, U.S.
Env’t Prot. Agency, Scope of the CERCLA Petroleum
Exclusion Under Sections 101(14) and 104(a)(2)
(July 31, 1987).
Taken together, these interpretations of CERCLA
reflect a recognition that when oil contains a hazardous
substance that is not indigenous to the refining
process, the commingled mixture is itself a hazardous
substance covered by CERCLA.6 And when Congress
exempted CERCLA-regulated hazardous substances
from OPA’s coverage, it did so in the light of those
interpretations. To the point: Congress intended to
exclude “hazardous substances”—including oil that has
been commingled with hazardous substances—from the
OPA’s coverage.
OPA’s legislative history, again subordinate to text,
confirms this understanding. The House Conference
Report notes:
6
When interpreting the scope of CERCLA’s petroleum exclusion,
at least one court has determined that “Congress intended that the
petroleum exclusion address oil spills, not releases of oil which has
become infused with hazardous substances.” Tosco Corp. v. Koch
Indus., Inc., 216 F.3d 886, 893 (10th Cir. 2000) (applying CERCLA
to spill of “hazardous wastes [that] have commingled with the
petroleum products in the soil and [were] floating on the
groundwater beneath the refinery…”).
App. 15
The definition [of “oil”] . . . does not include any
constituent or component of oil which may fall
within the definition of “hazardous substances”,
as that term is defined for the purposes of the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA).
This ensures that there will be no overlap in the
liability provisions of CERCLA and the Oil
Pollution Act.
H.R. Rep. No. 101-653, at 2 (1990) (Conf. Rep.), as
reprinted in 1990 U.S.C.C.A.N. 779, 780. Congress’s
intent is lucid: OPA and CERCLA create mutually
exclusive liability regimes. See Am. Com. Lines, 759
F.3d at 424 (“[W]hen Congress enacts a carefully
calibrated liability scheme with respect to specific
remedies, the structure of the remedies suggests that
Congress intended for the statutory remedies to be
exclusive.” (cleaned up)).
Plaintiffs argue, however, that interpreting
CERCLA and OPA as mutually exclusive liability
regimes will lead to an absurd result; that is, such an
interpretation incentivizes the intentional or reckless
commingling of oil with hazardous substances so that
those responsible may not be sued for economic losses
under OPA. We cannot agree with such a sinister
characterization.
As outlined above, parties who are found
responsible for the discharge of oil mixed with
hazardous substances, do not escape liability. For
example, under CERCLA, those parties responsible for
such a discharge are still liable for their equitable
share of the cleanup costs incurred by both the
App. 16
government and private parties. See Amoco, 889 F.2d
at 667–68 (citing 42 U.S.C. §§ 9607(a)(4)(B), 9613(f)).
Furthermore, CERCLA does not close the door for
liability under state or other federal laws, including
common law.
To be sure, we hold that the Plaintiffs may not bring
economic loss claims under OPA because the mixed
spill is covered under the terms of CERCLA. And
undoubtedly, our holding will affect the Plaintiffs’
respective means to recovering economic losses. But
even if we believed that Congress had failed properly
“to appreciate the effect” of its chosen words, the
governing absurdity standard, controlling our review,
is too high to accommodate such an opinion. See Tex.
Brine Co. v. Am. Arb. Ass’n., 955 F.3d 482, 486 (5th Cir.
2020) (citing ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS
238 (2012)). “Absurdity requires more than
questionable policy.” Little v. Shell Expl. & Prod. Co.,
690 F.3d 282, 291 (5th Cir. 2012) (citation omitted). It
requires a result that “no reasonable person could
intend.” See Tex. Brine, 955 F.3d at 486. Thus, “vague
notions” about OPA’s overall purpose cannot “overcome
the words of [OPA’s] text” that, as earlier discussed,
exclude the mixed spill at issue here from its coverage.
See Mertens v. Hewitt Assocs., 508 U.S. 248, 262
(1993)(quotation omitted).7
7
Plaintiffs make several additional arguments on appeal that are
either conclusory, unpreserved, or asserted positions that this
opinion rejected—that is, that OPA governs spills of substances
governed by CERCLA and that their respective jurisdictions are
not mutually exclusive. See OOGC Am., L.L.C. v. Chesapeake
App. 17
IV.
To sum up: We hold that the district court correctly
interpreted OPA’s definition of “oil” to exclude a
commingled mixture of oil and CERCLA-regulated
“hazardous substances.” Consequently, the district
court correctly granted ITC’s motion for summary
judgment and dismissed Plaintiffs’ OPA claims. The
judgment of the district court dismissing Plaintiffs’
OPA claims is, therefore,
AFFIRMED.
Expl., L.L.C., 975 F.3d 449, 456 n.10 (5th Cir. 2020) (citing Bridas
S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir.
2003)) (“[A]rguments raised in a perfunctory manner, such as in a
footnote, are waived.”). The district court did not err in granting
ITC’s summary judgment motion. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (citations
omitted).
App. 18
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 22-20456
[Filed October 27, 2023]
________________________________________________
ROGELIO LOPEZ MUNOZ
)
Plaintiff,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant,
)
--------------------------------------------------------------)
TEXAS AROMATICS, L.P.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
RIO ENERGY INTERNATIONAL, INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-------------------------------------------------------------------- )
App. 19
GUNVOR USA, L.L.C.,
Plaintiff-Appellant,
)
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
CASTLETON COMMODITIES MERCHANT
)
TRADING L.P.; CASTLETON COMMODITIES
)
MERCHANT ASIA COMPANY PTE, LIMITED,
)
Plaintiffs—Appellants,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
STOLT TANKERS, B.V.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
PETREDEC TRADING (U.S.), INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee.
)
_______________________________________________ )
App. 20
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1460
USDC No. 4:20-CV-1387
USDC No. 4:20-CV-1863
USDC No. 4:20-CV-1867
USDC No. 4:20-CV-1930
USDC No. 4:21-CV-846
USDC No. 4:22-CV-201
______________________________
Before JOLLY, SOUTHWICK, and OLDHAM,
Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal
and was argued by counsel.
IT IS ORDERED and ADJUDGED that the
judgment of the District Court is AFFIRMED.
IT IS FURTHER ORDERED that appellants pay to
appellee the costs on appeal to be taxed by the Clerk of
this Court.
[SEAL]
Certified as a true copy and issued as
the mandate on Dec 06, 2023
Attest: /s/ Lyle W. Cayce
Clerk, U.S. Court of Appeals,
Fifth Circuit
App. 21
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Lead Case No. 4:19-cv-01460
[Filed August 24, 2022]
_________________________________
IN RE: INTERCONTINENTAL
)
TERMINALS COMPANY LLC
)
DEER PARK FIRE LITIGATION )
________________________________ )
ORDER ADOPTING REPORT
AND RECOMMENDATION
This matter was referred to United States
Magistrate Judge Dena Palermo to conduct all pretrial
proceedings pursuant to 28 U.S.C. § 636. ECF No. 112.
Pending before Judge Palermo was Defendant
Intercontinental Terminals Company LLC’s (“ITC”)
motion for partial summary judgment regarding claims
under the Oil Pollution Act (“OPA”), ECF. 395. On
July 2, 2021, Judge Palermo filed a Report and
Recommendation (“R&R”), recommending that
Defendant’s motion be granted, that summary
judgment be granted as to all claims under the OPA,
and that certain cases be dismissed. ECF No. 890. OPA
Plaintiffs filed objections to the R&R, asking the Court
to deny ITC’s motion. ECF Nos. 909, 910, 911, 912, 913,
914, 915, 927, 928, 929. Defendant ITC and Non-OPA
App. 22
Plaintiffs filed responses to OPA Plaintiffs’ objections,
urging the Court to adopt the R&R. ECF No. 930, 931.
OPA Plaintiff Petredec Trading (U.S.), Inc. (“Petredec”)
filed an opposed motion for leave to file a reply in
support of OPA Plaintiffs’ objections, ECF No. 943, and
Defendant ITC filed a response in opposition to
Petredec’s motion. ECF No. 970.
Since Plaintiffs filed objections, the Court conducted
a de novo review. The Court finds that the R&R is well
founded and that it should be adopted. Accordingly, it
is ORDERED that:
1. OPA Plaintiffs’ objections to the R&R are
OVERRULED.
2. Petredec’s motion for leave to file a reply in
support of OPA Plaintiffs’ objections, ECF No.
943, is DENIED.
3. The R&R is ADOPTED in its entirety as the
holding of the Court.
4. Defendant ITC’s motion for summary judgment,
ECF No. 395, is GRANTED;
5. All claims under the OPA are summarily
DISMISSED in the following cases:
a. G T M
International
LLC
v.
Intercontinental Terminals Company
LLC, et al., Case Number 4:19-cv-1460;
b. Charlotte Owners Inc. v. Intercontinental
Terminals Company LLC, et al., Case
Number 4:19-cv-1460;
App. 23
c. W a t e r w a y s
Tankers
Inc.
v.
Intercontinental Terminals Company
LLC, et al., Case Number 4:19-cv-1460;
d. Petrochem
Transport,
Inc.
v.
Intercontinental Terminals Company
LLC, et al., Case Number 4:20-cv-36;
e. United Seafood, et al. v. Intercontinental
Terminals Company LLC, et al., Case
Number 4:20-cv-1714;
f. Hyundai Marine Fire Insurance v.
Intercontinental Terminals Company
LLC, Case Number 4:21-cv-497;
g. AET Inc. Ltd. v. Intercontinental
Terminals Company, LLC, Case Number
4:21-cv-825;
h. Clean Harbors Deer Park, LLC v.
Intercontinental Terminals Company,
LLC, Case Number 4:21-cv-1105;
i. O’Rourke Marine Services, LLC v.
Intercontinental Terminals Company
LLC, Case Number 4:21-cv-1200;
j. SASOL Chemicals North America LLC, et
al. v. Intercontinental Terminals
Company LLC, et al., Case Number 4:21cv-1251; and
k. INEOS USA LLC v. Intercontinental
Terminals Company LLC, et al., Case
Number 4:21-cv-1254.
App. 24
6. The following cases are DISMISSED WITH
PREJUDICE:
a. Texas Aromatics LP v. Intercontinental
Terminals Company LLC, Case Number
4:20-cv-1387;
b. Rio Energy International, Inc. v.
Intercontinental Terminals Company
LLC, Case Number 4:20-cv-1843;
c. Gunvor USA LLC v. Intercontinental
Terminals Company LLC, Case Number
4:20-cv-1867;
d. Castleton Commodities Merchant Trading
L.P. and Castleton Commodities
Merchant Asia Co. PTE. Ltd. v.
Intercontinental Terminals Company
LLC, Case Number 4:20-cv-1930; and
e. Petredec Trading (U.S.), Inc. v.
Intercontinental Terminals Company
LLC, Case Number 4:21-cv-846.
SIGNED on August 24, 2022, at Houston, Texas.
/s/ Kenneth M. Hoyt
Kenneth M. Hoyt
United States District Judge
App. 25
APPENDIX D
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Lead Case No. 4:19-cv-01460
[Filed July 2, 2021]
_________________________________
IN RE: INTERCONTINENTAL
)
TERMINALS COMPANY LLC
)
DEER PARK FIRE LITIGATION )
________________________________ )
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION
Pending before the Court1 is Defendant
Intercontinental Terminals Company, LLC’s (“ITC”)
motion for summary judgment regarding claims under
the Oil Pollution Act (“OPA”), ECF No. 395.2 Based on
1
The district judge before whom this case is pending referred it for
all pretrial purposes pursuant to 28 U.S.C. § 636. Order, ECF No.
112. Defendant’s motion for summary judgment is appropriate for
report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
2
Plaintiffs Castleton Commodities Merchant Trading L.P. and
Castleton Commodities Merchant Asia Co. Pte. Ltd. (“Castleton”),
Gunvor USA LLC (“Gunvor”), Rio Energy International, Inc. (“Rio
Energy”), and Texas Aromatics LP (“Texas Aromatics”) filed a
response in opposition. ECF No. 410. Defendant filed a reply. ECF
No. 421. The Court entered an order adopting and incorporating
prior motion for summary judgment briefing on OPA claims to
App. 26
a review of the record and the argument of counsel, the
Court recommends that the motion be granted.
I.
BACKGROUND
The essential facts are undisputed. These
consolidated cases arise from a March 17, 2019 fire at
Defendant ITC’s Deer Park storage tank facility. As
emergency crews worked to control the fire, various
tank products, fire water, and firefighting foam
accumulated in ITC’s secondary containment area.
ECF No. 395 at 3-4; ECF No. 410 at 4. On March 22,
2019, damage to the secondary containment wall
caused it to partially collapse and discharge an
estimated 470,000 to 523,000 barrels of a mixture of
fire water, firefighting aqueous film forming foams, and
the remaining petrochemical products from the storage
tanks into the Tucker Bayou and onto the Buffalo
Bayou, San Jacinto River, and Houston Ship Channel.
ECF No. 395 at 4; ECF No. 410 at 4-5. In a
Preassessment Screen of the spill, several federal and
state agencies involved with the spill clean-up
determined that of the 50 chemicals released, 17 were
hazardous substances on the Consolidated List of Lists
under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) and 5
were on the OPA’s List of Petroleum and NonPetroleum Oils. ECF No. 395 at 4; ECF No. 410 at 5.
additional cases. ECF No. 855. The Court entered an order joining
Plaintiffs United Seafood et al. to ITC’s motion for summary
judgment. ECF No. 868. Exhibit A contains a list of the Plaintiff’s
cases to which this R&R applies.
App. 27
Given the presence of both hazardous substances
and oil in the spill, the United States Environmental
Protection Agency (“EPA”) initially opened a “CERCLA
fund” account and the United States Coast Guard
(“USCG”) opened an account with the Oil Spill Liability
Trust Fund (“OSLTF”) administered under the OPA.
Memorandum from William Grawe, Director, NPFC, to
Maarten Overbeek, NPFC, Fin. Mgmt. (Dec. 3, 2020).
However, after subsequent sampling of the discharge
by the Texas Commission on Environmental Quality
(“TCEQ”) confirmed that the spill was oil mixed with
hazardous substances, the EPA and USCG determined
that the spill was a CERCLA incident. Id. The USCG
closed the OSLTF account and transferred response
costs to form a unilateral CERCLA account. Id.
Compare ECF No. 395 at 4-5 (describing timeline of
remediation effort), with ECF No. 410 at 18 (noting
that EPA elected to pursue cleanup under CERCLA
rather than OPA).
Plaintiffs are commodities merchants, traders and
marketing companies who allege economic losses
suffered due to interruptions in their business
activities caused by closures of the Houston Ship
Channel. ECF No. 1, Case No. 4:20-cv-1387 (Plaintiff
Texas Aromatics’ original petition); ECF No. 1, Case
No. 4:20-cv-1843 (Plaintiff Rio Energy’s original
petition); ECF No. 1, Case No. 4:20-cv-1867 (Plaintiff
Gunvor’s original petition); ECF No. 1, Case No. 4:20cv-1930 (Plaintiff Castleton’s original petition).
Between June and August of 2019, Plaintiffs sent
demand letters to ITC claiming OPA damages, which
ITC denied in October 2019. ECF No. 395 at 6-7.
Plaintiffs filed suits against ITC, asserting claims for:
App. 28
(1) monetary damages under the OPA and
(2) declaratory relief that (a) the OPA applies; (b) ITC
is a “Responsible Party” thereunder; (c) and the
economic loss rule does not apply. Id. at 7.
Defendant filed the instant motion, which seeks to
dismiss all of Plaintiffs’ OPA claims. ECF. 395 at 25.
Defendant argues that the OPA does not apply as a
matter of law to the spill because it contains a mixture
of both oil and CERCLA-regulated hazardous
substances and is thus covered exclusively under
CERCLA, and not the OPA. Defendant further argues
that the USCG’s decision not to designate ITC as a
“responsible party” under the OPA bars Plaintiffs’
private right of action because the designation of a
“responsible party” is a condition precedent to allowing
private damage claims. ECF No. 395 at 2.
Plaintiffs oppose the motion, arguing that ITC’s
interpretation of the OPA is without merit. Plaintiffs
argue that ITC is strictly liable under the OPA for
economic damages claims resulting from closure of the
Houston Ship Channel. Plaintiffs assert that violation
of CERCLA is not a defense to OPA liability and both
CERCLA and the OPA can apply to a mixed spill of oil
and CERCLA-regulated hazardous substances. ECF
No. 410 at 2-3. Plaintiffs further argue that designation
in the OPA is optional, and that the language only
applies to designation of a “source,” not of a
“responsible party,” where there is no dispute that ITC
was the “source” of the discharge. ECF No. 410 at 3.
Lastly, Plaintiffs argue that deference to agency
interpretations and guidance are inappropriate or
inapplicable in this case. ECF No. 410 at 4.
App. 29
II.
LEGAL STANDARD
JUDGMENT
FOR
SUMMARY
Summary judgment is authorized if the movant
establishes that there is no genuine dispute about any
material fact and the law entities it to judgment. Fed.
R. Civ. P. 56(a). A fact is “material” if its resolution
“might affect the outcome of the suit under the
governing law.” Parrish v. Premier Directional Drilling,
L.P., 917 F.3d 369, 378 (5th Cir. 2019) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Disputes about material facts are “genuine” “if
the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Brackeen v.
Haaland, 994 F.3d 249, 290 (5th Cir. 2021) (quoting
Anderson, 477 U.S. at 248)).
The movant has the “initial responsibility of
informing the district court of the basis for its motion,
and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of
material fact.” Nola Spice Design, L.L.C. v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(alteration in original) (quoting Equal Emp’t
Opportunity Comm’n v. LHC Grp., Inc., 773 F.3d 688,
694 (5th Cir. 2014)). If the movant meets its burden,
the non-movant must “go beyond the pleadings and . . .
designate specific facts showing that there is a genuine
issue for trial.” Id. (quoting LHC Grp., Inc., 773 F.3d at
694).
In reviewing the evidence, the Court may “not make
credibility determinations or weigh the evidence.” Wells
v. Minnesota Life Ins. Co., 885 F.3d 885, 889 (5th Cir.
2018) (quoting Reeves v. Sanderson Plumbing Prods.,
App. 30
Inc., 530 U.S. 133, 150 (2000)). “The evidence of the
non-movant is to be believed, with all justifiable
inferences drawn in his favor.” Darden v. City of Fort
Worth, 880 F.3d 722, 727 (5th Cir. 2018) (quoting
Liberty Lobby, 477 U.S. at 255). However, the nonmovant’s burden is not satisfied with “‘some
metaphysical doubt as to the material facts,’ by
‘conclusory allegations,’ by ‘unsubstantiated
assertions,’ or by only a ‘scintilla’ of evidence.” SalazarLimon v. City of Houston, 826 F.3d 272, 277 (5th Cir.
2016) (quoting Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994)). The Court may also not, “‘in the
absence of any proof, assume that the nonmoving party
could or would prove the necessary facts’ to survive
summary judgment.” Id. (quoting Little, 37 F.3d at
1075).
III.
DISCUSSION
A. The Oil Pollution Act of 1990
In the wake of the Exxon Valdez oil spill, Congress
passed the Oil Pollution Act of 1990 (codified at 33
U.S.C. §§ 2701-2762) “to streamline federal law so as to
provide quick and efficient cleanup of oil spills,
compensate victims of such spills, and internalize the
costs of spills within the petroleum industry.” Rice v.
Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)
(citing S. REP. NO. 101-94). Pursuant to an Executive
Order, the USCG administers the OPA. Exec. Order
No. 12,777, 56 Fed. Reg. 54,757 (Oct. 18, 1991). The
OPA provides that:
Notwithstanding any other provision or rule of
law, and subject to the provisions of this Act,
App. 31
each responsible party for a vessel or a facility
from which oil is discharged, or which poses the
substantial threat of a discharge of oil, into or
upon the navigable waters or adjoining
shorelines or the exclusive economic zone is
liable for the removal costs and damages
specified in subsection (b) of this section that
result from such incident.
33 U.S.C. § 2702(a).
The OPA defines an “incident” as “any occurrence or
series of occurrences having the same origin, involving
one or more vessels, facilities or any combination
thereof, resulting in the discharge or substantial threat
of discharge of oil[.]” 33 U.S.C. §2701(14). A
“responsible party” in the case of an onshore facility is
“any person owning or operating the facility, except a
Federal agency, State, municipality, commission, or
political subdivision of a State, or any interstate body,
that as the owner transfers possession and right to use
the property to another person by lease, assignment, or
permit.” 33 U.S.C. § 2701(32)(B).
A “responsible party” is “strictly liable for cleanup
costs and damages and first in line to pay any claims
for removal costs or damages that may arise under the
OPA.” United States v. Am. Commercial Lines, L.L.C.,
759 F.3d 420, 422 n.2 (5th Cir. 2014); see also 33 U.S.C.
§ 2702(a). However, a “responsible party” has three
absolute defenses, which must be established by a
preponderance of the evidence: (1) an act of God; (2) an
act of war; or (3) an act or omission of a third party,
with certain exceptions. See 33 U.S.C. § 2703(a).
App. 32
Relevant to this matter, under the OPA, a
“responsible party” may be liable for, among other
things, economic losses suffered by individual
claimants. The OPA provides that claimants may
recover against a “responsible party” “damages equal to
the loss of profits or impairment of earning capacity
due to the injury, destruction, or loss of real property,
personal property, or natural resources[.]” 33 U.S.C.
§ 2702(b)(2)(E). However, to receive recovery, claimants
must follow the OPA’s presentment requirement.
Under the present requirement, claimants must
present a claim to a “responsible party” and wait the
shorter of 90 days or until the “responsible party”
denies all liability before filing suit in court for
damages. See 33 U.S.C. § 2713. The purpose of the
presentment requirement is to “promote settlement
and thereby reduce litigation and streamline claims
processes.” Nguyen v. Am. Commercial Lines, L.L.C.,
Nos. 11-1799, 11-2705, 2014 WL 3587490, at *3 (E.D.
La. July 17, 2014).
The OPA also created the OSLTF, which the
Director of USCG’s National Pollution Center manages.
In addition, the OPA established a claims process
under which claimants may in some instances submit
OPA claims to the OSLTF in lieu of filing suit in court.
See 33 U.S.C. §§ 2701(11); 2713(b). If a claimant
accepts payment from the OSLTF, the government is
then “subrogated” to the claimant’s rights under the
OPA and may later assert those rights in litigation
against a “responsible party” and thereby recoup any
payments on those claims. See 33 U.S.C. § 2715.
App. 33
B. The Oil Pollution Act does not apply in
this matter because CERCLA more
appropriately covered the spill in the
Houston Ship Channel containing both
oil and CERCLA-regulated hazardous
substances.
To prevail on summary judgment, Defendant must
establish that “there is no genuine issue as to any
material fact and [it] is entitled to judgment as a
matter of law.” Klocke v. Watson, 936 F.3d 240, 246
(5th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). In
pertinent part, the OPA imposes liability on “each
responsible party for a vessel or a facility from which
oil is discharged, or which poses the substantial threat
of a discharge of oil[.]” 33 U.S.C. § 2702(a). To prevail
on their claims against Defendant, Plaintiffs must
prove that “(1) Defendant is a ‘responsible party,’3
(2) for the ‘facility,’ (3) from which oil was discharged,
or from which there was a substantial threat of
discharge, (4) ‘into or upon the navigable waters or
adjoining shorelines,’ and (5) that the discharge
resulted in ‘removal costs and damages.’” United States
v. Viking Resources, Inc., 607 F. Supp. 2d 808, 815
(S.D. Tex. 2009) (quoting 33 U.S.C. § 2702(a)). The
3
The OPA defines a responsible party as the owner or operator of
a facility. 33 U.S.C. § 2701(32)(B). Plaintiffs assert that Defendant
meets the statutory definition of a responsible party. ECF No. 410
at 9, 24. Defendant does not dispute that it is the owner of the
facility that caused the spill. Instead, it contends that since the
USCG did not designate a source of the spill, it is not a responsible
party under the OPA and, therefore, Plaintiffs have no private
right of action under the OPA. ECF No. 395 at 19-25. The private
right of action is addressed in the next section.
App. 34
central dispute is whether “oil” within the statutory
definition of the OPA was discharged from the facility.
The OPA defines “oil” as:
oil of any kind or in any form, including
petroleum, fuel oil, sludge, oil refuse, and oil
mixed with wastes other than dredged spoil, but
does not include any substance which is
specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F)
of section 101(14) of the Comprehensive
Environmental Response, Compensation, and
Liability Act [(CERCLA)] (42 U.S.C. 9601) and
which is subject to the provisions of that Act[.]
33 U.S.C. § 2701(23). Known as the “hazardous
substance” exception, the definition of “oil” in the OPA
excludes substances covered by CERCLA.
As a threshold issue, the parties disagree over
whether mixed spills, containing both oil and CERCLAregulated hazardous substances, fit within the
meaning of “oil” and thus fall within the coverage of the
OPA. Defendant ITC argues that mixed spills are the
exclusive domain of CERCLA, based on the text of both
statutes, legislative history, and agency guidance. ECF
No. 395 at 8-17. Plaintiffs, on the other hand, argue
that both CERCLA and the OPA can equally apply to
mixed spills, and that violation of CERCLA does not
remove OPA liability. ECF No. 410 at 11-19.
Whether CERCLA and the OPA both apply to a
mixed spill is a question of first impression for the
Court.
App. 35
1. The Oil Pollution Act does not apply to
spills containing a mixture of oil and
CERCLA-regulated hazardous
substances.
In a statutory construction case, the inquiry “begins
with the language of the statute, and, in the absence of
ambiguity, often ends there.” In re Deepwater Horizon,
745 F.3d 157, 173 (5th Cir. 2014) (internal citation
omitted). However, neither party contends that a spill
containing both oil and CERCLA-regulated hazardous
substances fits within a plain language reading of the
statutory definition of “oil.”
Yet, the language of the statute is not the only tool
at the Court’s disposal. “To determine the meaning of
a statute, ‘we look not only to the particular statutory
language, but to the design of the statute as a whole
and to its object and policy.’” Buffalo Marine Servs.,
Inc. v. United States, 663 F.3d 750, 757 (5th Cir. 2011)
(quoting Crandon v. United States, 494 U.S. 152, 158
(1990)). Due to their “common purposes and shared
history,” courts have often looked to CERCLA to
understand the scope of the OPA. Id.; see also United
States v. Nature’s Way Marine, L.L.C., 904 F.3d 416,
420-21 (5th Cir. 2018); In re Settoon Towing, L.L.C.,
859 F.3d 340, 349-50 (5th Cir. 2017).
Congress intended the OPA “to provide a
comprehensive regulatory and liability scheme
governing all forms of petroleum pollution affecting the
navigable waters of the United States, to the extent
they are not covered by [CERCLA].” Avitts v. Amoco
Prod. Co., 840 F. Supp. 1116, 1121 (S.D. Tex. 1994),
vacated on other grounds by 53 F.3d 690 (5th Cir.
App. 36
1995). As Representative Stangeland explained, “The
conferees have defined the term ‘oil’ to clarify that the
term is mutually exclusive from hazardous
substances subject to regulation under [CERCLA]. In
fact, the conferees have focused on oil spills rather than
hazardous substances or hazardous materials spills
throughout development of the legislation.” 136 CONG.
REC. H6933-02 (daily ed. Aug. 3, 1990) (statement of
Rep. Stangeland) (emphasis added). This is because
there was to be “no overlap in the liability provisions of
CERCLA and the Oil Pollution Act.” 136 CONG. REC.
H6210-03 (daily ed. Aug. 1, 1990) (Joint Explanatory
Statement of the Committee of Conference).
In 1980, Congress enacted CERCLA “to promote the
timely cleanup of hazardous waste sites and to ensure
that the costs of such cleanup efforts [are] borne by
those responsible for the contamination.” Atlantic
Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020)
(alteration in original) (quoting CTS Corp. v.
Waldburger, 573 U.S. 1, 4 (2014)). The EPA was
charged with managing CERCLA. CERCLA imposes
liability on parties for damages stemming from a
release or threatened release of a “hazardous
substance.” 42 U.S.C. § 9607(a). Notably, several courts
have held that “when a mixture or waste solution
contains hazardous substances, that mixture is itself
hazardous for purposes of determining CERCLA
liability” and that “[l]iability under CERCLA depends
only on the presence in any form of listed hazardous
substances.” B.F. Goodrich Co. v. Murtha, 958 F.2d
1192, 1201 (2d Cir. 1992); see also Amoco Oil Co. v.
Borden, Inc., 889 F.2d 664, 669 (5th Cir. 1989) (“The
plain statutory language fails to impose any
App. 37
quantitative requirement on the term hazardous
substance and we decline to imply that any is
necessary.”); Eagle-Picher Indus., Inc. v. U.S. Envtl.
Prot. Agency, 759 F.2d 922, 930-31 (D.C. Cir. 1985)
(EPA acted fully within its power when it construed as
“hazardous substances” petitioner’s mining wastes and
fly ash). The CERCLA definition of “hazardous
substance,” however, includes a specific “petroleum
exception,” excluding: “petroleum, including crude oil
or any fraction thereof which is not otherwise
specifically listed or designated as a hazardous
substance . . . natural gas, natural gas liquids, liquified
natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas).” 42
U.S.C. § 9601(14).
From its inception the “petroleum exception” was
read narrowly to only exclude spills consisting of
strictly oil. “Under section 2(b)(13), petroleum,
including crude oil and including fractions of crude oil
which are not otherwise specifically listed or
designated as hazardous substances . . . is excluded
from the definition of a hazardous substance. The
reported bill does not cover spills or other releases
strictly of oil.” S. REP. NO. 96-848, at 28 (1980).
The EPA’s subsequent interpretation confirms that
the “petroleum exception” continued to be understood
in this way. If a CERCLA-regulated hazardous
substance present in a spill of oil is “not normally found
in refined petroleum fractions or present at levels
which exceed those normally found in such fractions,”
the substance is not within the “petroleum exception”
App. 38
and still subject to CERCLA.4 U.S. ENVTL. PROT.
AGENCY, OFFICE OF GEN. COUNSEL, SCOPE OF THE
CERCLA PETROLEUM EXCLUSION UNDER SECTIONS
101(14) AND 104(A)(2) (1987); see also In re Oil Spill by
the Oil Rig Deepwater Horizon in the Gulf of Mexico, on
April 20, 2010, Nos. 10-2454,10-1768, 2015 WL
5363039, at *5 (E.D. La. Sept. 14, 2015) (citing
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S.
837, 842-45 (1984) (deferring to 1987 EPA Office of
General Counsel’s “reasonable interpretation” of
petroleum exclusion)). Thus, at the enactment of the
OPA, it was understood that mixed spills containing
both oil and CERCLA-regulated hazardous substances
did not fall under the “petroleum exception” but were
instead covered under the definition of “hazardous
substances” in CERCLA.
The OPA’s “hazardous substance” exception is a
reference back to the scope of coverage of CERCLA.
“[W]here, as here, Congress adopts a new law
incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of
4
Plaintiffs argue that reliance on the 1987 EPA Office of General
Counsel’s interpretation of CERCLA’s “petroleum exception” is
misplaced because the memorandum pre-dates the enactment of
the OPA by three years. ECF No. 410 at 14-16. Plaintiffs contend
that after the enactment of the OPA, the same oil spill already
covered by CERCLA would be subject to OPA liability as well. Id.
at 15. However, Plaintiffs’ argument is flawed. As explained
further below, the legislative history of the OPA establishes that
Congress was aware of the EPA’s narrow interpretation of the
“petroleum exception” when enacting the OPA and crafted the
OPA to fill in the gap left by the “petroleum exception.” Moreover,
Congress and several courts provide that the OPA was designed to
dovetail and not overlap with CERCLA.
App. 39
the interpretation given to the incorporated law, at
least insofar as it affects the new statute.” Collins v.
Mnuchin, 938 F.3d 553, 570 (5th Cir. 2019) (quoting
Lorillard v. Pons, 434 U.S. 575, 581 (1978)). Since
Congress enacted the OPA to fill in the gap left by
CERCLA’s “petroleum exception,” the Court can infer
that the OPA’s “hazardous substances” exception
should be read so that the definition of “oil” does not
include any substance understood to be within the
scope of CERCLA’s definition of “hazardous
substances.” See, e.g., Avitts v. Amoco Prod. Co., 840 F.
Supp. 1116, 1121 (S.D. Tex. 1994) (“The OPA provides
a comprehensive regulatory and liability scheme
governing all forms of petroleum pollution affecting the
navigable waters of the United States, to the extent
they are not covered by [CERCLA].”); accord Sun Pipe
Line Co. v. Conewago Contractors, Inc., No. 4:CV-931995, 1994 WL 539326, at *11 (M.D. Pa. Aug. 22, 1994)
(“The OPA was written to dovetail with preexisting
federal legislation, specially, with [CERCLA] and the
Clean Water Act.”). Thus, since at the enactment of the
OPA the scope of CERCLA’s definition of “hazardous
substances” already included mixed spills, the Court
can infer that when Congress drafted the OPA, it did
not intend to include mixed spills in the definition of
“oil” under the OPA.
In contrast, Plaintiffs argue that since the structure
of the OPA’s “hazardous substance exception” is similar
to CERCLA’s “petroleum exception,” the rules of
statutory interpretation dictate that the “hazardous
substance” exception should be read narrowly as well,
to leave space for both statutes to apply to mixed spills.
ECF No. 410 at 13. However, while Plaintiffs are
App. 40
correct that similar statutes should be read
consistently, see, e.g., Morales v. TWA, Inc., 504 U.S.
374, 384-85 (1992), that general rule “only makes sense
when the word or phrase being interpreted has
acquired special, non-literal significance as a legal term
of art.” Boca Ciega Hotel, Inc. v. Bouchard Transp. Co.,
51 F.3d 235, 240 (5th Cir. 1995) (citing Molzof v. United
States, 502 U.S. 301, 307-309 (1992)). Plaintiffs have
not identified to the Court any word or phrase in the
“hazardous substance exception” which has become a
legal term of art.
Moreover, Plaintiffs cite POM Wonderful L.L.C. v.
Coca-Cola Co. in support of their argument that
holding that Plaintiffs cannot bring suit under the OPA
would mean that CERCLA precludes an OPA private
right of action. 573 U.S. 102 (2014). In POM, the
Supreme Court held that the Federal Food, Drug, and
Cosmetic Act (“FDCA”) does not preclude a private
Lanham Act claim because, among other things, “when
two statutes complement each other, it would show
disregard for the congressional design to hold that
Congress nonetheless intended one federal statute to
preclude the operation of the other.” Id. at 115.
However, POM is inapplicable in this matter. Unlike
the FDCA and the Lanham Act, which both touch the
same issue – food and beverage labelling – CERCLA
and the OPA address two distinct sets of facts: spills of
“hazardous substances” and spills of “oil,” respectively.
Plaintiffs are unable to bring their OPA claim in this
matter not because CERCLA precludes it, but rather
because the spill at issue is not within the scope of the
OPA’s definition of “oil.”
App. 41
Plaintiffs also cite United States v. English as an
example of a case in which both CERCLA and the OPA
applied to the same spill. No. CV00-00016ACKBMK,
2001 WL 940946, at *5-*7 (D. Haw. Mar. 28, 2011). The
key difference, however, between English and this
matter is that English involved spills that were
segregated. One of the spills involved leakage of oil into
the navigable waters as well as free floating petroleum
in the vessel. The other spill involved hazardous
substances contained in 55-gallon drums in a separate
part of the vessel from the oil spill. CERCLA applied to
the hazardous substance clean up and the OPA applied
to the oil clean up.
The parties do not dispute that the discharge in the
Houston Ship Channel was a mixture of oil and other
hazardous substances that either had leaked from the
tanks or were used to put out the fire. See
Memorandum from William Grawe, Director, NPFC, to
Maarten Overbeek, NPFC, Fin. Mgmt. (Dec. 3, 2020).
Compare ECF No. 395 at 17 (“ITC’s tank farm
discharged a mixture of oil and multiple CERCLAregulated substances into waterways[.]”), with ECF
No. 410 at 11 (“The fact that ITC also discharged
CERCLA-listed hazardous substances that allegedly
mixed with the oil . . . .”). No evidence established that
the mixed spill was separable into its distinct
hazardous substance and oil parts. In fact, the only
evidence, the pictures of the spill, suggests the contrary
is true. ECF No. 1 at 8, Case No. 4:20-cv-1387 (citing
Field Report For Airborne Data Collected in Support of
US EPA Region 6 Intercontinental Terminals Company
LLC Fire (Mar. 23, 2019), https://response.
epa.gov/sites/14150/files/ASPECT%20report%20ITC
App. 42
%2023%20March%202019%20fina.pdf); ECF No. 1 at
8, Case No. 4:20-cv-1843 (same); ECF No. 1 at 8, Case
No. 4:20-cv-1867 (same); ECF No. 1 at 8, Case No. 4:20cv-1930 (same).
2. The spill in the Houston Ship Channel
contained a “so commingled” mixture of
oil and CERCLA-regulated hazardous
substances.
In support of its motion, Defendant points to the
determination by EPA and USCG that the spill in the
Houston Ship Channel was a CERCLA hazardous
product. ECF No. 395 at 17-18. Defendant argues that
this determination excludes the spill from the
definition of “oil” under the OPA, and without a
discharge of “oil,” there can be no OPA liability. Id. at
18.
Plaintiffs argue that the Court’s inquiry should
instead end with the text of the OPA. ECF No. 410 at
8-10. Plaintiffs contend that the OPA is unambiguous
in its coverage of the discharge in question. They argue
that the OPA imposes strict liability on “responsible
parties” for removal costs and damages associated with
oil spills in navigable waters; ITC is the responsible
party as the owner and operator of the Deer Park
facility, which discharged hundreds of thousands of
barrels of oil into the Houston Ship Channel; and the
discharge resulted in the closure of the Houston Ship
Channel and damages to the Plaintiffs. ECF No. 410 at
7-11.5
5
Plaintiffs have the burden of pleading sufficient facts in their
complaints to establish ITC’s liability under the OPA. Plaintiffs
App. 43
The parties do not dispute that on March 22, 2019,
470,000 to 523,000 barrels of a mixture of fire water,
firefighting aqueous film forming foams, and various
petrochemical products were released into the
waterways adjacent to ITC’s Deer Park facility. ECF
No. 395 at 4; ECF No. 410 at 4-5. Plaintiffs call into
question the make-up of the spill in the Houston Ship
Channel, alleging that OPA products composed 88% of
all chemicals discharged by volume and that the
remaining hazardous substances might be indigenous
to oil and thus covered under the OPA or simply not
present in the Houston Ship Channel. ECF No. 410 at
6-7. Specifically, Plaintiffs suppose that ITC’s toluene
tank remained intact and did not leak into the spill, the
firefighting foam did not actually contain a CERCLAregulated hazardous substance, and other
petrochemicals were indigenous to the oil and thus do
not count as “hazardous substances” based on
CERCLA’s “petroleum exception.” ECF No. 410 at 6. In
support of their argument Plaintiffs point to the Harris
County Fire Marshal’s Office Final report, which stated
and provided aerial photos that the toluene tank was
upright and undistorted. JIM HARGRAVES, HARRIS CTY.
FIRE MARSHAL’S OFFICE, FINAL REPORT 150-51 (2019).
Plaintiffs also allege that Defendant failed to carry its
must allege facts that indicate that the spill in the Houston Ship
Channel was “oil” within the statutory definition. See United
States v. Nature’s Way Marine, L.L.C., 904 F.3d 416, 420 (5th Cir.
2018) (“33 U.S.C. § 2702(a) establishes that each ‘responsible
party’ shall be liable for the removal costs and damages when oil
is discharged into navigable waters or onto adjoining shorelines.”).
This includes showing that the substance is not a “hazardous
substance” under CERCLA. See 33 U.S.C. § 2701(23).
App. 44
initial burden in its motion for summary judgment to
demonstrate that there is an absence of a genuine issue
of material fact on the CERCLA status of firefighting
foam and other chemicals named in its motion. ECF
No. 410 at 6. Plaintiffs further consider in a footnote
that the spilled xylene could have burned and/or
migrated to the Houston Ship Channel and thus was
not commingled with the other substances. ECF No.
410 at 7 n.13.
However, as the non-movant, Plaintiffs must do
more than show that there is “some metaphysical doubt
as to the material facts,” and their burden is not met by
“unsubstantiated assertions.” Salazar-Limon, 826 F.3d
272, 277 (5th Cir. 2016) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). Plaintiffs
must “adduce admissible evidence which creates a fact
issue concerning the existence of every essential
component of that party’s case.” Terry v. Chicago
Bridge & Iron Co., 283 F. Supp. 3d 601, 605 (S.D. Tex.
2017) (quoting Thomas v. Price, 975 F.2d 231, 235 (5th
Cir. 1992)). Therefore, even when “view[ing] the
evidence in the light most favorable to the non-movant
and draw[ing] all reasonable inferences in the nonmovant’s favor,” Brewer v. Hayne, 860 F.3d 819, 822
(5th Cir. 2017) (citing Scott v. Harris, 550 U.S. 372, 378
(2007)), and accepting that there may be a genuine
issue of material fact as to several of the spill
composition-related issues Plaintiffs raised, the Court
cannot accept Plaintiffs’ argument that xylene was not
present in the Houston Ship Channel. Defendant
satisfied its initial burden by citing to conclusions the
EPA and USCG reached based on sampling the TCEQ
conducted that found the existence of CERCLA-
App. 45
regulated hazardous substances, including xylene, in
the adjacent ditch to the containment wall that
ultimately led into the Houston Ship Channel. ECF
No. 395 at 5. Plaintiffs, on the other hand, cite to
nothing in support of their speculation that the xylene
may not have reached the Houston Ship Channel.
What the Court is left with then is a discharge in the
Houston Ship Channel that consisted of a mixture of oil
and at least one undisputed CERCLA-regulated
hazardous substance – xylene. This alone is sufficient
for Defendant’s burden on summary judgment showing
that the spill did not come within the OPA’s definition
of oil because of the presence of CERCLA hazardous
substances.
Plaintiffs attempt to create an issue of material fact
sufficient to overcome a motion for summary judgment
by contending in a single sentence that Defendant
failed to establish that the spill in the Houston Ship
Channel was “so commingled” such that its oil and
CERCLA-regulated hazardous substance parts could
not be separated. ECF No. 410 at 20. Plaintiffs’ briefing
is insufficient to address this issue or meet its burden
of creating a fact issue. Magee v. Life Ins. Co. of N. Am.,
261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003)
(“[F]ailure to brief an argument in the district court
waives that argument in that court.”).
Moreover, according to the two agencies that
administer CERCLA and the OPA, the EPA and the
USCG, mixed spills that are “so commingled” should be
addressed under CERCLA, and not the OPA. See U.S.
COAST GUARD, NAT’L POLLUTION FUNDS CTR., OIL SPILL
LIABILITY TRUST FUND (OSTLF) FUNDING FOR OIL
App. 46
SPILLS (2006) (“If the substances become so-comingled
that they cannot be separated, [CERCLA] Superfund is
used to clean the spill.”); U.S. ENVTL. PROT. AGENCY,
OFFICE OF GEN. COUNSEL, SCOPE OF THE CERCLA
PETROLEUM EXCLUSION UNDER SECTIONS 101(14) AND
104(A)(2) (1987) (“If the hazardous substance and the
petroleum product are so commingled that, as a
practical matter, they cannot be separated, then the
entire oil spill would come under CERCLA’s
jurisdiction.”).
Contrary to Plaintiffs’ single sentence argument,
Defendant carried its burden of showing the absence of
a genuine dispute of material fact on the “so
commingled” nature of the discharge because there is
no dispute that the EPA and USCG addressed the spill
in the Houston Ship Channel under CERCLA, rather
than the OPA. Compare ECF No. 395 at 4-6 (describing
joint determination to proceed with cleanup under
CERCLA instead of OPA), with ECF No. 410 at 18
(noting EPA’s invocation of CERCLA). Since the EPA
and USCG are aware of and charged with abiding by
their own rules and regulations, Richardson v. Joslin,
501 F.3d 415, 418 (5th Cir. 2007) (“[A]n agency must
abide by its own regulations.”), the Court can infer that
the spill was “so commingled” that it could not be
separated into its oil and CERCLA-regulated
hazardous substance parts. Based on internal USCG
guidance for the management of oil spills, the USCG
would not have determined that the spill fell under
CERCLA, had the spill not been “so commingled.” See
U.S. COAST GUARD, NAT’L POLLUTION FUNDS CTR., OIL
SPILL LIABILITY TRUST FUND (OSTLF) FUNDING FOR OIL
SPILLS (2006) (“If the substances become so co-mingled
App. 47
that they cannot be separated, Superfund [under
CERCLA] is used to clean the spill.”).
The determination by the EPA and USCG that the
spill in the Houston Ship Channel was a CERCLA
incident is entitled to deference under Skidmore v.
Swift & Co., 323 U.S. 134 (1944); see also Lopez
Ventura v. Sessions, 907 F.3d 306 (5th Cir. 2018)
(agency interpretations that lack the force of law are
entitled to Skidmore deference). Skidmore deference
accords “weight” to an agency’s judgment depending on
“the thoroughness evident in [the agency’s]
consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if
lacking power to control.” Envtl. Integrity Project v.
U.S. Envtl. Prot. Agency, 969 F.3d 529, 540 (5th Cir.
2020) (quoting Dhuka v. Holder, 716 F.3d 149, 156 (5th
Cir. 2013)). In applying Skidmore, the Court ultimately
asks whether the interpretation of the OPA in this
determination is “persuasive.” Id. at 541. As explained
above, an interpretation of the OPA that places mixed
spills outside of the definition of “oil” accords well with
the design, purpose, and legislative history of the OPA.
Moreover, the EPA and USCG have consistently held
that “so commingled” spills of oil and CERCLAregulated hazardous substances fall under CERCLA
rather than the OPA. See U.S. COAST GUARD, NAT’L
POLLUTION FUNDS CTR., OIL SPILL LIABILITY TRUST
FUND (OSTLF) FUNDING FOR OIL SPILLS (2006); U.S.
ENVTL. PROT. AGENCY, OFFICE OF GEN. COUNSEL,
SCOPE OF THE CERCLA PETROLEUM EXCLUSION UNDER
SECTIONS 101(14) AND 104(A)(2) (1987).
App. 48
In short, the motion for summary judgment should
be granted because Defendant carried its burden by
establishing that the spill in the Houston Ship Channel
is not “oil” as defined in the OPA. Mixtures of both oil
and CERCLA-regulated hazardous substances do not
fit within the definition of “oil” either as the statute is
written or as the term was conceived by Congress.
Since “oil” under the OPA serves to fill in the gap left
by the definition of “hazardous substances” under
CERCLA and its corresponding “petroleum exception,”
and the OPA and CERCLA are mutually exclusive of
each other, a substance that falls under CERCLA
cannot also invoke liability under the OPA. At the time
of the enactment of the OPA, it was understood that
mixed spills fell within the scope of CERCLA’s
definition of “hazardous substances.” Moreover, there
is no genuine dispute of material fact that the spill in
the Houston Ship Channel contained oil and at least
one CERCLA-regulated hazardous substance. Plaintiffs
must do more than speculate as to the composition of
the spill. Instead, the Court defers to the determination
by the EPA and USCG that the mixture in the Houston
Ship Channel was “so commingled” as to prevent
separation of its oil and CERCLA-regulated hazardous
substance parts.
C. Court declines to address whether
Plaintiffs have a private right of action
against ITC.
Even assuming the Oil Pollution Act applied to the
discharge in the Houston Ship Channel, Defendant
argues that Plaintiffs lack a private right of action
under the OPA because the USCG did not designate
App. 49
ITC as the “responsible party.” ECF No. 395 at 19-25.
Defendant contends that USCG’s decision not to
designate ITC as a “responsible party” makes proper
compliance with the presentment requirement
impossible because, based on the text and structure of
the OPA, designation of a “responsible party” is a
condition precedent to claim presentment.6
Plaintiffs counter that for a party to be strictly
liable under the OPA, it must only fit the statutory
definition of “responsible party,” and that the USCG is
not required to make any designation to establish
liability under the OPA. ECF No. 410 at 24-25.
Because the Court finds that the OPA does not
cover the spill in the Houston Ship Channel, the Court
declines to address whether Defendant ITC is a
“responsible party” as defined by the OPA and whether
Plaintiffs have a private right of action against ITC as
an alternative grounds for summary judgment. See,
e.g., McNickles v. Thaler, No. H-10-3493, 2012 WL
568069, 2012 WL 568069, at *5 (S.D. Tex. Feb. 21,
2012) (declining to address alternative summary
6
The OPA outlines specific procedures that claimants must follow
before filing suit in court to recover damages. Section 2713(a)
provides: “Except as provided in subsection (b), all claims for
removal costs or damages shall be presented first to the
responsible party or guarantor of the source designated under
section 2714(a) of this title.” 33 U.S.C. § 2713(a); see also 33 U.S.C.
§ 2714(a). Presentment of claims to the “responsible party” is a
“mandatory condition precedent barring all OPA claims unless and
until a claimant has presented her claims in compliance with
§ 2713(a).” Nguyen v. Am. Commercial Lines, L.L.C., 805 F.3d 134,
139 (5th Cir. 2015).
App. 50
judgment ground because respondent was already
entitled to summary judgment).
CONCLUSION
Therefore, the Court RECOMMENDS that:
1. Defendant’s Motion for Partial Summary
Judgment Regarding Claims Under the OPA,
ECF No. 395, should be GRANTED.
2. The following Plaintiffs’ cases that assert only
OPA claims against ITC should be DISMISSED
WITH PREJUDICE:
a. Texas Aromatics LP v. Intercontinental
Terminals Company LLC, Case No. 4:20cv-1387;
b. Rio Energy International, Inc. v.
Intercontinental Terminals Company
LLC, Case No. 4:20-cv-1843;
c. Gunvor USA LLC v. Intercontinental
Terminals Company LLC, Case No. 4:20cv-1867;
d. Castleton Commodities Merchant Trading
L.P. and Castleton Commodities
Merchant Asia Co. PTE. Ltd. v.
Intercontinental Terminals Company
LLC, Case No. 4:20-cv-1930; and
e. Petredec Trading (U.S.), Inc. v.
Intercontinental Terminals Company
LLC, Case No. 4:21-cv-846.
App. 51
3. The following Plaintiffs’ cases that assert other
claims as well as OPA claims, the OPA claims
should be DISMISSED:
a. G T M
International
LLC
v.
Intercontinental Terminals Company
LLC, et al., 4:19-cv-1460;
b. Charlotte Owners Inc. v. Intercontinental
Terminals Company LLC, et al., 4:19-cv1460;
c. W a t e r w a y s
Tankers
Inc.
v.
Intercontinental Terminals Company
LLC, et al., 4:19-cv-1460;
d. Petrochem
Transport,
Inc.
v.
Intercontinental Terminals Company
LLC, et al., Case Number 4:20-cv-36;
e. United Seafood, et al. v. Intercontinental
Terminals Company LLC, et al., Case
Number 4:20-cv-1714;
f. Hyundai Marine Fire Insurance v.
Intercontinental Terminals Company
LLC, Case Number 4:21-cv-497;
g. AET Inc. Ltd. v. Intercontinental
Terminals Company, LLC, Case Number
4:21-cv-825;
h. Clean Harbors Deer Park, LLC v.
Intercontinental Terminals Company,
LLC, Case Number 4:21-cv-1105;
App. 52
i. O’Rourke Marine Services, LLC v.
Intercontinental Terminals Company
LLC, Case Number 4:21-cv-1200;
j. SASOL Chemicals North America LLC, et
al. v. Intercontinental Terminals
Company LLC, et al., 4:21-cv-1251; and
k. INEOS USA LLC v. Intercontinental
Terminals Company LLC, et al., 4:21-cv1254.
The parties have fourteen days from service of
this Report and Recommendation to file written
objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Failure to file timely objections will
preclude appellate review of factual findings and
legal conclusions, except for plain error. Ortiz v.
City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on July 2, 2021, at Houston, Texas.
/s/ Dena Palermo
Dena Hanovice Palermo
United States Magistrate Judge
App. 53
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 22-20456
[Filed November 28, 2023]
________________________________________________
ROGELIO LOPEZ MUNOZ
)
Plaintiff,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant,
)
--------------------------------------------------------------)
TEXAS AROMATICS, L.P.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
RIO ENERGY INTERNATIONAL, INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-------------------------------------------------------------------- )
App. 54
GUNVOR USA, L.L.C.,
Plaintiff-Appellant,
)
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
CASTLETON COMMODITIES MERCHANT
)
TRADING L.P.; CASTLETON COMMODITIES
)
MERCHANT ASIA COMPANY PTE, LIMITED,
)
Plaintiffs—Appellants,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
STOLT TANKERS, B.V.,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee,
)
-----------------------------------------------------------------)
PETREDEC TRADING (U.S.), INCORPORATED,
)
Plaintiff—Appellant,
)
)
versus
)
)
INTERCONTINENTAL TERMINALS COMPANY, L.L.C., )
Defendant—Appellee.
)
_______________________________________________ )
App. 55
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1460
USDC No. 4:20-CV-1387
USDC No. 4:20-CV-1863
USDC No. 4:20-CV-1867
USDC No. 4:20-CV-1930
USDC No. 4:21-CV-846
USDC No. 4:22-CV-201
______________________________
ON PETITION FOR REHEARING EN BANC
Before JOLLY, SOUTHWICK, and OLDHAM,
Circuit Judges.*
PER CURIAM:
Treating the petition for rehearing en banc as a
petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. Because no
member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for
rehearing en banc is DENIED.
*
Judges Catharina Haynes and Dana M. Douglas, did not
participate in the consideration of the rehearing en banc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.