Pro-Built Dev. v. Delta Oil Servs.

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PRO-BUILT DEVELOPMENT LLC, Plaintiff, v. DELTA OIL SERVICES INC. et al., Defendants.

No. 7:21-cv-01477-RDP

United States District Court, N.D. Alabama, Western Division

December 10, 2024

MEMORANDUM OPINION

R. DAVID PROCTOR, CHIEF U.S. DISTRICT JUDGE

This matter is before the court on Defendant Delta Oil Services Inc.'s Motion for Summary Judgment (Doc. # 62), Defendant Burgess Equipment Repair LLC's Motion for Summary Judgment (Doc. # 72), and a Motion in Limine to Exclude Testimony of Abner Patton filed by both Defendants Delta Oil Services Inc. and Burgess Equipment Repair LLC (Doc. # 86). The parties have fully briefed the Motions for Summary Judgment (Docs. # 87, 93, 94, 96, 97), as well as the Motion in Limine (Docs. # 90, 91, 92). For the reasons explained below, both Motions for Summary Judgment (Docs. # 62, 72) are due to be granted and Defendants' Motion in Limine (Doc # 86) is moot.

I. Factual Background

The court has gleaned the facts set out in this opinion from the parties' submissions and the court's own examination of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only. They may not be the actual facts that could be established through live testimony at trial. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386 1400 (11th Cir. 1994).

A. The Parties

Wade Burgess (“Mr. Burgess”) is the primary owner of Burgess Equipment Repair (“Burgess”). (Docs. # 63-2 at 4; 87 at 4 ¶ 3; 94 at 5 ¶ 3). Defendant Burgess Equipment Repair, LLC owns property adjacent to the Pro-Built property. (Docs. # 63-1 at 20; 87 at 4 ¶ 4; 94 at 5 ¶ 1). Burgess opened its physical office around 2010 or 2011. (Docs. # 90-2 at 22, 53; 93 at 11 ¶ 1; 97 at 4 ¶ 1). An unnamed tributary of Carroll Creek runs across the property owned by Burgess and in turn across the property owned by Plaintiff Pro-Built. (Docs. # 72-1 at 3 ¶ 5; 93 at 4 ¶ 1). Carroll Creek is a “water of the state” of Alabama. (Doc. # 90-15 at 2). The northwestern portion of the Pro-Built property is adjacent to the southwestern portion of the Burgess property. (Doc. # 90-7 at 6).

Delta Oil Services, Inc. (“Delta Oil”) is a used oil recycling company. (Docs. # 87 at 4 ¶ 5; 94 at 5 ¶ 1; 90-15 at 1). Since around 2017, Burgess had allowed Delta Oil to park several of its tanker trucks - usually three at a time - on Burgess's property and worked on Delta Oil trucks in exchange for Delta Oil's removal of Burgess's waste oil. (Docs. # 63-2 at 8; 87 at 4 ¶ 6; 94 at 5 ¶ 6; 90-2 at 5, 7; 93 at 11 ¶ 2; 97 at 4 ¶ 2). “[F]rom time to time,” Burgess also allowed Delta Oil to store their chemical totes and drums on Burgess's property. (Docs. # 90-2 at 6, 22; 93 at 11 ¶ 4; 97 at 4 ¶ 4). Mr. Burgess testified that all the totes and drums of oil on Burgess's property were owned by Delta Oil, not by Burgess. (Doc. # 90-2 at 6, 20, 22).

B. The Spill

On the night of April 15, 2021, Greg Fontaine, who was an Emergency Management Specialist with the Tuscaloosa County Emergency Management Agency, investigated a spill of what he believed to be a petroleum product near the Burgess property. (Docs. # 64-1 at 31-32; 87 at 4 ¶ 7; 94 at 5 ¶ 3, 12 ¶ 7(a); 93 at 10 ¶ 1; 97 at 3 ¶ 1; 96 at 7 ¶ 7(a)). When he arrived, Fontaine went to the southwestern edge of Burgess's property and saw several of Delta Oil's “short-haul transport tanker trucks” parked close to the edge of the embankment. (Docs. # 90-17 at 8-9, 13, 32; 94 at 12 ¶ 7(b); 96 at 7 ¶ 7(b); 93 at 10 ¶ 2; 97 at 3 ¶ 2). Fontaine said he saw petroleum contamination floating in the creek and an area blackened by petroleum. (Docs. # 90-17 at 32, 36; 93 at 11 ¶¶ 4-5; 97 at 3 ¶¶ 4-5). Fontaine also saw two sets of tire tracks running from the back of the Delta Oil trucks to the area where the petroleum contamination was found. (Docs. # 90-17 at 33; 93 at 11 ¶ 6; 97 at 4 ¶ 6).

Timothy Wynn is a Senior Environmental Scientist with the Alabama Department of Environmental Management (“ADEM”) who was on call the week of April 15, 2021, as part of an ADEM Emergency Response Team. (Docs. # 60-4 at 3, 5; 72-1 at 8 ¶¶ 11-12; 93 at 4 ¶ 1, 7-8 ¶ 1; 97 at 1 ¶ 1; 67-1 at 3; 87 at 5 ¶ 10; 94 at 5 ¶ 10). On April 16, 2021, Wynn went out to the Burgess site to perform an investigation because people reported “smelling vapors” in that location. (Docs. # 60-4 at 5, 7; 72-1 at 8 ¶ 13; 93 at 4 ¶ 1; 67-1 at 7; 87 at 5 ¶ 12; 94 at 5 ¶ 10). Wynn observed and photographed petroleum product that was leaking into the unnamed tributary of Carroll Creek that runs through Pro-Built's land. (Docs. # 60-4 at 7-9; 90-10 at 6, 9; 93 at 8 ¶ 2; 97 at 1 ¶ 2). Wynn observed the product pooling in a 100 feet by 100 feet area on a floodplain below the embankment at the back of the Burgess parking lot. (Doc. # 60-4 at 9). Wynn also testified that he saw petroleum and sheens in the creek well past the 100 foot by 100 foot area of land impacted by the pooling. (Docs. # 60-4 at 36-38; 90-10 at 7, 9, 21, 31, 32; 93 at 8 ¶ 3; 97 at 2 ¶ 3; 94 at 10 ¶ 2(c); 96 at 4 ¶ 2(c)).

Wynn also observed that Delta Oil tanker trucks were parked directly above the contamination area and that there was staining on the ground behind the trucks. (Docs. # 60-4 at 11; 93 at 8 ¶ 5; 97 at 2 ¶ 5). He testified that it looked like the tankers were the “source of the contamination,” and that he believed there had been a “fairly large release” of product from the trucks. (Docs. # 60-4 at 33, 42). Wynn saw and photographed tire tracks on the dirt road that linked the Delta Oil trucks to the brush pile where the spill appeared to have started, although he noted that there was not a continuous trail of a spill from the brush pile to the trucks. (Docs. # 60-4 at 36; 90-10 at 16-18).

Eddie Wiggins is a 50% owner of Pro-Built Development, LLC and testified that he became aware of the spill when the fire department contacted him and when the Environmental Protection Agency (“EPA”) called him in April 2021. (Docs. # 63-1 at 6, 17-18; 87 at 4 ¶ 1, 6 ¶ 24; 94 at 5 ¶¶ 1, 24).

Gloria Owen is the other 50% owner of Pro-Built and provided a declaration. (Doc. # 9021). Owen's declaration described “extensive and in-depth” negative press about the oil spill in 2021, as well as her concerns about the potential for Pro-Built's liability to third parties if any pollutants remained on the land. (Id. at 2). She declared that the property had a value of $500,000 pre-contamination and $0 post-contamination. (Id. at 3). Neither Wiggins nor Owen were disclosed in Plaintiff's Expert Disclosures (Doc. # 81-1 at 2), although they were listed as potential expert witnesses in Plaintiff's Initial Disclosures. (Doc. # 90-25 at 12-13).

C. Remediation Efforts

Once he heard about the spill, Mr. Burgess instructed an employee to tell Delta Oil to remove their trucks, totes, and drums from the Burgess property, and cease using Delta Oil to dispose of Burgess's waste oil. (Docs. # 63-2 at 11, 13; 90-2 at 29). On April 18, 2021, Mr. Burgess observed the oil spill on the flat part of the gravel road on the Burgess property and confirmed that Delta Oil had removed its trucks from the property. (Docs. # 63-2 at 46; 87 at 5 ¶ 9; 94 at 5 ¶ 9; 60-3 at 13; 72-1 at 4 ¶ 10; 93 at 4 ¶ 1). Mr. Burgess never called Delta Oil to ask them what happened because he “figured what happened . . . [a] spill.” (Doc. # 63-2 at 13). Mr. Burgess said he believes Delta Oil spilled the oil. (Docs. # 90-2 at 6; 93 at 11 ¶ 3; 97 at 4 ¶ 3).

Around April 19, 2021, Mr. Burgess contacted Spectrum Environmental to remediate the contaminated area. (Docs. # 60-3 at 11; 72-1 at 6 ¶ 19; 93 at 4 ¶ 1, 12 ¶ 6; 63-2 at 11; 87 at 5 ¶¶ 13-14; 94 at 5 ¶ 13; 97 at 4 ¶ 6). Pro-Built did not hire any contractors to clean up its property and did not incur any out-of-pocket costs for remediating the spill. (Docs. # 63-1 at 66; 87 at 7 ¶ 30; 94 at 6 ¶ 30; 60-2 at 18). Spectrum installed oil absorbent booms, mats, an underflow dam, and silt fencing to clean up the affected waterway. (Doc. # 90-3 at 7). An “absorbent boom” is a tool that absorbs oil from waterways after an oil spill. (Doc. # 82-1 at 14). If petroleum products are released into a waterway and then absorbed by an absorbent boom, the boom could test positive for those products. (Doc. # 82-1 at 14). Between the dates of April 21, 2021, and April 28, 2021, Spectrum also removed 283 tons of soil and 4,000 gallons of wastewater. (Doc. # 90-3 at 7; 80-1 at 2). Spectrum completed its remediation efforts in May 2021. (Doc. # 61-2 at 2).

Mr. Burgess paid out of pocket approximately $50,000 to Spectrum and $10,000 to the landfill to take the contaminated dirt but did not request any contribution from Delta Oil. (Docs. # 90-2 at 11, 27, 46; 93 at 12 ¶ 11; 97 at 4 ¶ 11). Mr. Burgess's insurance carrier ultimately reimbursed him for these costs. (Doc. # 90-2 at 27). Beyond these efforts listed above, Mr. Burgess did not investigate the 2021 spill. (Docs. # 90-2 at 29; 93 at 12 ¶ 12; 97 at 4 ¶ 12).

On February 7, 2022, Delta Oil entered into a Consent Order with ADEM in which it agreed to pay ADEM a $58,680 fine for the April 15, 2021 spill, and for spills at Delta Oil facilities in Adger and Cottondale. (Docs. # 90-15 at 3-5, 8; 93 at 10 ¶ 1; 97 at 3 ¶ 1; 94 at 12 ¶ 5(a)). ADEM determined that the spill came from Delta Oil trucks. (Docs. # 90-15 at 2 ¶ 4(a); 93 at 10 ¶ 2; 97 at 3 ¶ 2). The consent order stated that “Delta discharged pollutants to a water of the state without a permit in violation of Ala. Code § 22-22-9(i)(3).” (Docs. # 90-15 at 2 ¶ 4(b); 93 at 10 ¶ 3; 97 at 3 ¶ 3).

D. Remediation Results

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