How does a plaintiff prove a Texas SWDA claim?

Section 361.344 which is entitled “Cost Recovery by Liable Party or Third Party” states that:

  • A person who conducts a removal or remedial action that is approved by the commission and is necessary to address a release or threatened release may bring suit in a district court to recover the reasonable and necessary costs of that action and other costs as the court, in its discretion, considers reasonable.
  • To recover costs under this section the person seeking cost recovery must have made reasonable attempts to notify the person against whom cost recovery is sought: (a) of the existence of the release or threatened release; and (b) that the person seeking cost recovery intended to take steps to eliminate the release or threatened release.
  • The court shall determine the amount of cost recovery according to the criteria

prescribed by Section 361.343.

The specific elements of a SWDA claim are:

  • The defendant is a “person responsible for solid waste” as defined in section 361.271;
  • The TCEQ approved the plaintiff’s removal or remedial action;
  • The action was necessary to address a release or threatened release of solid waste;
  • The costs of the action were reasonable and necessary; and
  • The plaintiff made reasonable attempts to notify the defendant of both the release and the plaintiff’s intent to take steps to eliminate the release.   

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