85 F.4th 343
5th Cir.2023Background
- March 2019: a fire and partial collapse at ITC’s Deer Park tank farm released ~470,000–523,000 barrels of mixed products (fire water, firefighting foams, refined oils, benzene, ethylbenzene, xylene, toluene, naphtha, etc.) into the Houston Ship Channel.
- Federal and state agencies sampled the release and identified 17 CERCLA "hazardous substances" and 5 substances characterized as OPA "oil."
- The EPA and Coast Guard treated the release as a CERCLA incident; response costs were transferred from the Oil Spill Liability Trust Fund to the CERCLA fund.
- Several private parties filed consolidated lawsuits asserting only OPA claims seeking economic-loss damages for business interruption.
- ITC moved for summary judgment on OPA’s applicability, arguing a commingled spill of oil and CERCLA hazardous substances is excluded from OPA; the district court granted summary judgment for ITC.
- The Fifth Circuit affirmed: OPA’s definition of "oil" excludes mixtures containing CERCLA-regulated hazardous substances, so OPA does not apply to the commingled spill.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a spill of oil commingled with CERCLA-regulated hazardous substances qualifies as "oil" under OPA | The statutory "hazardous substance" exception applies only to substances "specifically listed" as hazardous; commingled oil is not itself "specifically listed," so OPA still governs | OPA’s definition of "oil" expressly excludes substances that are "specifically listed or designated as a hazardous substance" under CERCLA, and that exclusion covers commingled mixtures that are CERCLA hazardous substances | Held: A commingled mixture of oil and CERCLA-regulated hazardous substances is excluded from OPA’s definition of "oil"; OPA does not apply. |
| Whether OPA and CERCLA can both apply to the same mixed release | OPA and CERCLA are not mutually exclusive; both can apply to protect different remedies (including OPA economic-loss recovery) | Congress intended no overlap: OPA excludes CERCLA hazardous substances to prevent duplicate or overlapping liability schemes | Held: The statutes are mutually exclusive in this context; Congress’s text and history show intent to assign mixed releases governed by CERCLA, not OPA. |
| Whether interpreting OPA to exclude commingled releases produces an absurd result (e.g., incentivizes commingling to evade OPA economic-loss remedies) | Excluding commingled releases from OPA would improperly deny victims access to economic-loss remedies and could incentivize wrongful commingling | CERCLA still imposes substantial cleanup and cost-allocation liability and state/common-law remedies remain; speculative policy concerns do not overcome clear statutory text | Held: Not absurd as a matter of statutory interpretation; the text, legislative history, and existing CERCLA remedies control. |
Key Cases Cited
- Wilshire W. Assocs. v. Atl. Richfield Co., 881 F.2d 801 (9th Cir. 1989) (interpreting CERCLA petroleum exclusion to cover petroleum with indigenous or refining-added components)
- Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989) (mixtures containing hazardous substances are themselves hazardous under CERCLA)
- Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886 (10th Cir. 2000) (CERCLA applies where hazardous wastes have commingled with petroleum)
- Savage Servs. Corp. v. United States, 25 F.4th 925 (11th Cir. 2022) (discussion of OPA/CERCLA interaction and remedial schemes)
- United States v. Am. Commercial Lines, L.L.C., 759 F.3d 420 (5th Cir. 2014) (noting statutory remedial structures suggest exclusivity)
- Lorillard v. Pons, 434 U.S. 575 (1978) (presumption that Congress is aware of judicial interpretations of incorporated law)
- Uniroyal Chem. Co. v. Deltech Corp., 160 F.3d 238 (5th Cir. 1998) (private cost-recovery under CERCLA)
- Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) (textual primacy in statutory interpretation)