Ohio Ex Rel. Dewine v. Breen

362 F.Supp.3d 420

State of OHIO, EX REL., Michael DEWINE, Ohio Attorney General, Plaintiff,

v.John G. BREEN, et al., Defendant.

Case No. 2:16-cv-802

United States District Court, S.D. Ohio, Eastern Division.

Signed January 18, 2019

Elizabeth R. Ewing, Karrie Pratt Kunkel, Timothy James Kern, Office of the Ohio Attorney General, Columbus, OH, for Plaintiff.

John Edward Breen, Breen Law, LLC, Michael J. O'Callaghan, Brian A. Coulter, David Freeman Axelrod, Kevin Patrick Braig, Marcus A. Miller, Shumaker Loop & Kendrick LLP, James Mark Schottenstein, Schottenstein Legal Services, Columbus, OH, for Defendant.

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court for consideration of the Motion for Partial Summary Judgment of Plaintiff State of Ohio, ex rel. Michael DeWine, Ohio Attorney General (the "State") (ECF No. 116); the Motion for Summary Judgment of Defendants John G. Breen, John E. Breen, and Janice L. Breen (collectively the "Breens") (ECF No. 117); Defendant Trabue Dublin, LLC's ("Trabue") Motion for Summary Judgment (ECF No. 118); the State's Response in Opposition to the Motions for Summary Judgment of the Breens and Trabue (ECF No. 123); Trabue's Response in Opposition to the Breens' Motion for Summary Judgment (ECF No. 124); Trabue's Response in Opposition to the State's Motion for Summary Judgment (ECF No. 126); the Breens' Response in Opposition to the State's Motion for Summary Judgment (ECF No. 127); the State's Reply (ECF No. 132); Trabue's Reply (ECF No. 134); and the Breens' Reply. (ECF No. 135.) For the reasons below, the Court GRANTS in PART and DENIES in PART.

I. BACKGROUND

A. Undisputed Facts

1. Defendants' Ownership and Operation of the Properties

This case involves two properties: one commercial and one residential. Pl.'s Ex. 3, Expert Report by Robin Roth at 2 ("Roth Report") (ECF No. 116-2). In 1980, the owner and President of Buckeye Terminix Company, Inc. ("Buckeye"), John G. Breen, and his wife, Janice Breen, purchased the commercial property at 2121 Riverside Drive, Upper Arlington, Ohio (the "Site") in their own names. 1980 Breen Deed; Dep. of John E. Breen ("Breen Dep.") at 18:21–23 (ECF No. 119-1). Buckeye was located at the Site from at least 1980 to 2002. Breen Dep. 19:22–20:8. Buckeye provided extermination services around Ohio from 1957 to 2002. Breen Dep. at 17:16–18:4.

The Site housed Buckeye's building, which had an office space and a connected garage. Roth Report at 14–15. That building has always been surrounded by parking areas and driveways. Id. ; Pl.'s Ex. 4, Dep. of Deborah Strayton ("Strayton Dep.") at 139:1–9 (ECF No. 116-2). Immediately west of the Site, down a steep embankment, is a tract of five land plots addressed to Scioto Pointe Lane (the "Neighboring Properties"). Roth Report at 3–4.¹

From 1980 until at least 1987, Buckeye maintained pesticides at the Site for its extermination business. Pl.'s Ex. 5, Director's Final Findings and Orders at ¶ 2 ("1992 Director Orders") (ECF No. 119-1); Breen Dep. at 42:15–21. Buckeye employees used the garage space and outdoor areas to mix, transfer, and store chlordane, aldrin, heptachlor, and dieldrin. 1992 Director Orders at ¶ 2; Roth Report, Ex. 3¶ 4. Buckeye employees also loaded, unloaded, and washed trucks containing pesticides at the facility, and they dumped pesticide-laden water at the Site and onto the western embankment. Roth Report, Ex. 3¶ 4.

From 1980 to 2002, John G. Breen served as President/General Manager of Buckeye and as the President of its Board of Directors. Breen Dep. at 18:17–19:15, 30:18–20. He also managed Buckeye's finances. Id. Janice was Safety Director and served as Secretary of the Board of Directors. Pl.'s Ex. 7, 1987 Buckeye Terminix Company Certificate of Amendment ("1987 Amendment"); Breen Dep. at 19:12–15. Starting around 1980, John G. and Janice Breen were the majority owners of Buckeye. Breen Dep. at 17:12–18:4. In 1987, John E, Breen, son of John G. and Janice Breen, also gained ownership in Buckeye. Id. In 1992, John E. Breen became Buckeye's General Counsel and Vice President. Breen Dep. at 19:7–10.

In December 1985, Specialty Restaurant Corporation ("Specialty"), Trabue's parent company, purchased the Neighboring Properties. Trabue Ex. 7, Deed from Kaufman to Specialty, Dec. 23, 1985. In 2010, Specialty created Trabue Dublin, LLC, then sold the Neighboring Properties to Trabue for a nominal price. Trabue Ex. 9 (ECF No. 118-13).

2. Environmental Issues

In 1981, Buckeye employees complained to the Ohio Environmental Protection Agency (the "OEPA") about pesticide-dumping at the Site. Roth Report at 5. In response, the OEPA's Office of Emergency Response staff collected two soil samples from the Site. Roth Report at 5; Trabue Ex. 4, Ltr. to J.G. Breen from W. Nichols, July 10, 1981 (ECF No. 118-8). Those samples showed concentrations of chlordane between 5,780 and 5,920 parts per million ("ppm"). Id.

In a letter dated July 10, 1981, the OEPA notified Buckeye that its hazardous disposal was illegal and violated Ohio law. Id. In the letter, the OEPA requested that Buckeye implement measures to prevent further releases of pesticides into the environment. Id. Because of the OEPA's letter, Buckeye installed a drainage collection system, paved its parking lot with asphalt, maintained the vegetated area at the embankment, and allowed the OEPA to monitor the Site. Trabue Ex. 5, Ltr. to J.G. Breen from W. Nichols, Dec. 16, 1981; 1992 Director Orders at 2; Breen Dep. at 37:23–38:9.

The OEPA continued sampling soil, gravel, and water runoff at Site in 1981, 1982, and 1989. Roth Report at 5. Each time, the OEPA found aldrin, chlordane, and dieldrin, among other pesticides. Id. In 1988, Buckeye excavated the storage tank from the Site. 1992 Director Orders at ¶ 3; Breen Dep. at 37:23–38:9.

In 1991, a developer interested in purchasing the 38-acre tract, which included the Neighboring Properties, hired a consulting firm, Geraghty & Miller ("G & M"), to investigate the land's environmental conditions. Trabue Ex. 1, Tallichet Affidavit at ¶ 7. G & M discovered that a portion of the 38-acre tract had been contaminated by Buckeye's pesticide operations. Trabue Ex. 8, Specialty Restaurants Corp. v. Kaufman Investment Co., et al. , No. C2-96-342, Findings of Fact and Conclusions of Law at 5 (S.D. Ohio Jan. 5, 1998) (the "Graham Order"). Until 1991, Specialty was not aware of any environmental issues related to the Neighboring Properties. Tallichet Affidavit at ¶ 7. Subsequently, Buckeye engaged G & M to sample soil and groundwater at the Site and at the Neighboring Properties. Strayton Dep., Ex. H at 3. In 1991, G & M collected ground and groundwater samples from the Neighboring Properties. Id.; Roth Report at 6–7. These samples contained aldrin, chlordane, dieldrin, and other pesticides. Id. G & M implemented Method 8080 when analyzing the soil and ground water samples. Id. On May 20, 1992, Specialty entered an agreement with the OEPA and Buckeye, allowing access to the Neighboring Properties to investigate and remediate the contaminations. Trabue's Mot. for S.J., Ex. G, Attach. D, Access Agreement, May 20, 1992.

On June 26, 1992, the OEPA Director Donald Schregardus issued a Director's Final Findings and Orders ("1992 Director Orders"). 1992 Director Orders. The 1992 Director Orders applied to and bound "Buckeye Terminix, Inc. (‘Respondent’), its officers and directors in their corporate capacity, agents, assigns, and successors in interest."² 1992 Director Orders at 1. In the 1992 Director Orders, the OEPA determined that Buckeye used pesticides at the Site until at least 1987. 1992 Director Orders at ¶ 3. Those pesticides included chlordane, aldrin, heptachlor, and dieldrin. 1992 Director Orders at ¶ 3. The 1992 Director Orders state "[Buckeye] disposed of hazardous wastes at the Facility, and has placed or caused to be placed industrial wastes or other wastes in a location where they cause or threaten to cause pollution of the waters of the state." 1992 Director Orders at ¶ 10. The 1992 Director Orders would terminate upon Buckeye: (i) proving to the OEPA that all tasks had been completed, (ii) paying the OEPA's oversight costs, and (iii) demonstrating that the remaining contamination met the OEPA's acceptable risk levels. 1992 Director Orders at 12; Ex. 13, Ltr. To John E. Breen from D. Tjoelker, June 21, 1996.

By 1992, John E. Breen was managing Buckeye's environmental issues. Strayton Aff. at ¶ 6. He negotiated the 1992 Director Orders. Id. John E. Breen also hired and oversaw environmental consultants, ordered samples and forwarded the results to the OEPA, ensured the Neighboring Properties were accessible, arranged for remedial equipment and supplies, and worked with Buckeye's insurance carriers to pay for remedial work outlined in the 1992 Director Orders. Pl.'s Ex. 11, J. E. Breen Letter to OEPA, June 8, 1992; Pl.'s Ex. 12, J. E. Breen Letter to OEPA; Strayton Aff. at ¶ 6; Breen Dep. at 86:1–88:6.

In July 1992, G & M conducted additional soil and ground water sampling at four monitoring wells, which were installed on the Neighboring Properties. Roth Report at 7. Based on the results of those samples, G & M submitted an interim action report (the "Interim Remedy"). Id. In December 1992, G & M presented its investigatory results and Interim Remedy to the OEPA. Strayton Dep., Ex. H. G & M confirmed the presence of pesticides in soil and groundwater at the Neighboring Properties but concluded that the groundwater contamination posed no threat to human health or the environment at 39 of the 44 lots in the neighboring subdivision, which were therefore suitable for residential development. Id. at 12–13; 40–41. G & M determined that contamination levels at Lots 40, 42, and 43³ exceeded residential levels, but that the contamination would naturally degrade to acceptable levels by 1996. Id. at 44. G & M recommended that if Specialty planned to develop the 39...