Bell v. Kokosing Indus.
| Decision Date | 29 March 2022 |
| Docket Number | Civil Action 19-53-DLB-CJS |
| Parties | DAVID BELL and CINDY WILDER BELL, PLAINTIFFS v. KOKOSING INDUSTRIAL, INC., DEFENDANT |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court upon four pending motions made by both parties. Plaintiffs have filed a Motion to Exclude Expert Testimony (Doc. # 80), a Motion for Summary Judgment (Doc. # 81), and a Motion to Strike (Doc. # 95). Defendants have filed a Motion for Summary Judgment (Doc. # 82). All pending Motions have been fully briefed (Docs. # 83, 84, 85 86, 87, 88, 96, and 97), and are thus ripe for the Court's review. The Court has reviewed the Motions and associated filings.
For the reasons stated herein, Plaintiffs' Motion to Exclude (Doc. # 80) is denied without prejudice Plaintiffs' Motion for Summary Judgment (Doc. # 81) is granted in part and denied in part, Plaintiffs' Motion to Strike (Doc. # 95) is denied, and Defendant's Motion for Summary Judgment (Doc. # 82) is granted in part and denied in part.
David and Cindy Bell (“the Bells”) are residents of Villa Hills, in Kenton County, Kentucky, where they own a one-acre tract of property situated on a wide bend in the Ohio River. (Doc. # 27 ¶¶ 45-46). Before 2017, the back side of the Bells' property sloped toward the river and was at one point within the river's 100-year-floodplain. (Id. ¶ 46). Even though Villa Hills' zoning regulations did not allow it, the Bells one day hoped to subdivide their property and sell the land for residential development. (Id. ¶ 49). In 2017, the Bells believed that Villa Hills would eventually change its zoning regulations, and in the meantime, they sought to use their property to create a campground, an organic garden, and a boat ramp for usage by members of their church. (Id. ¶¶ 50-51). However, the property's slope along the riverbank was too steep for the campground and too steep to be eventually subdivided, so the Bells sought to fill in and elevate the land to create a larger, more level yard. (Id.). In addition to allowing for development, filling in the property and raising the elevation would have reduced the property's flooding risk. (Id.). So, the Bells applied for and received permits from local, state, and federal authorities to fill in their property, raise the elevation, and build a boat ramp to the river. (Id. ¶ 53).
In July 2017, representatives of Kokosing Industrial, Inc. (“Kokosing”) approached the Bells at their home and offered to transport and dump fill material onto the Bells' property. (Id. ¶ 59). Kokosing told the Bells that in exchange for the rights to dump non-contaminated fill material on the Bells' property, Kokosing would bring the fill material to the property, spread it on the land, and provide the fill material to the Bells free of charge. (Id.). The fill material that Kokosing would dump onto the Bells' property was to come from a City of Cincinnati sewer construction project for which Kokosing was the general contractor. (Id. ¶ 35). Upon reaching an agreement, Kokosing presented the Bells with a contract entitled “Waste Agreement.” (Id. ¶ 82). The Bells were not represented by legal counsel. (Id. ¶ 73). Mr. Bell marked up the contract, striking out various clauses and specific words, in addition to writing “[n]o contaminated material of any type” at the bottom of one section. (Id. ¶ 88). Mr. Bell then signed the contract and delivered it to Kokosing without retaining a copy of the contract. (Id. ¶ 89). The Bells never received a fully signed copy of the contract until July 2018 (id. ¶¶ 90-91), but Kokosing (through its subcontractor, Ashcraft) began dumping fill material on the Bells' property in August 2017. (Id. ¶ 103).
According to the Bells, the copy of the contract that Kokosing signed is not the same as the contract signed by David Bell. (Id. ¶ 93). In July 2018, when the Bells received a copy of the contract, they noticed that Mr. Bell's handwritten notation prohibiting contaminated material had been removed, and an additional paragraph waiving liability with respect to the Metropolitan Sewer District had been added. (Id.). While Mr. Bell's signature remained on the document, the Bells believe that Kokosing removed the signature page signed by Mr. Bell from the notated contract and attached it to a clean copy without Mr. Bell's notations. (Id.).
Mr. Bell's notation about contaminated material would turn out to be extremely noteworthy. The fill material that Kokosing began dumping on the Bells' property was from an area known as “Site 20” within the Cincinnati sewer construction project. (Id. ¶ 111; Doc. # 81-1 at 4). Site 20 was a large parcel of land within the project, located just off the Western Hills Viaduct, and which also contained the former location of a McDonald's restaurant at 2321 Beekman Street. (Doc. # 27 ¶ 112). The McDonald's location had been built on a lot backfilled with black foundry sand, a waste byproduct dumped there at some point by the former Lunkenheimer Valve Company, which had previously been located a few blocks away at 1519 Tremont Street.[1] (Id. ¶ 16 n.1 and 121). For many years, the Lunkenheimer Company dumped black foundry sand on land that would eventually house the McDonald's building, and which would later be labeled Site 20 in the City's 2017 sewer construction project. (Id. ¶ 121). Black foundry sand contains contaminants such as heavy metals and polyaromatic hydrocarbons (“PAHs”), which are toxic and carcinogenic to humans. (Id. ¶ 124). The Site 20 site held large amounts of black foundry sand mixed into the natural earth, which had been present for many years. (Id. ¶ 123; supra note 1).
Through a subcontractor, Kokosing began transporting and dumping the fill material from Site 20 onto the Bells' property in August 2017. (Id. ¶ 103). In October 2017, after many loads had been taken to the Bells' property, Kokosing excavators at Site 20 noticed a strong petroleum smell coming from the dirt. (Id. ¶ 141). Kokosing contacted an environmental consulting firm, which initially reported that the soil was not contaminated. (Id. ¶ 142; Doc. # 82 at 7-8). Five days later, after a geologist from the consulting firm visited Site 20 in person, he notified Kokosing that the fill material was black foundry sand, and Kokosing stopped excavation. (Docs. # 27 ¶ 154 and 82 at 8). In the next few days, Kokosing was notified by the consulting firm that the black foundry sand contained contaminated material and was improper for placement on the Bells' residential property. (Docs. # 27 ¶ 160 and 82 at 8).
Around the same time, the U.S. Army Corps of Engineers was investigating the Bells' property, and a Coast Guard vessel took photographs of a bulldozer pushing the black fill material toward the riverbank. (Doc. # 27 ¶ 150). Soon thereafter, representatives from the Army Corps of Engineers and the Kentucky Division of Water came to the Bells' home to ask about the fill material. (Docs. # 81-1 at 11 and 91 at 165-66). The Bells attest that they were not able to get testing results from Kokosing (Docs. # 27 ¶ 173; 81-1 at 15; 91 at 104-05), and so they had their own testing completed on the fill material in cooperation with the Kentucky officials. (Docs. # 27 at 173 and 91 at 105). The Bells' test showed high contamination levels of heavy metals and PAHs. (Doc. # 27 ¶ 192).
The Bells provided those test results to the Kentucky Department of Water and the Kentucky Division of Environmental Protection, and then, the state government ordered its own testing of the fill material. (Id. ¶ 118; Doc. # 81-1 at 6). The Kentucky state government's test showed the same results as the Bells' test: high levels of heavy metals and PAHs, meaning that the fill material was severely contaminated and improper for disposal on the Bells' residential property. (Doc. # 27 ¶ 192). Thereafter, the Kentucky state government issued a Notice of Violation to the Bells and Kokosing, in addition to other involved parties, for dumping the contaminated material in the Bells' yard on the Ohio River floodplain. (Id. ¶ 120). The Notice, issued in early 2018, required “all responsible parties . . . to take expeditious action to mitigate the contaminants that have been released onto the residential property.” (Doc. # 81-1 at 7, Exhs. 21 and 22) (original in all caps).
The Bells filed this lawsuit in April 2019, against Kokosing, the City of Cincinnati, the Metropolitan Sewer District, Ashcraft Sand and Gravel (Kokosing's transporting subcontractor), and ATC Group Services (Kokosing's environmental consultant).
(See generally Doc. # 27). At the time of the lawsuit's filing, no remediation actions had been taken to remove the contaminated soil from the Bells' property. (Id. ¶ 211). In July 2020, the Court dismissed all claims against the City of Cincinnati, the Metropolitan Sewer District, Ashcraft Sand and Gravel, and ATC Group Services, in addition to several claims against Kokosing. (See generally Doc. # 59). In that Order, the Court noted that “the Defendants [had] been involved in ongoing negotiations with the Bells and [the Kentucky state government] about how to address the contamination.” (Id. at 10).
Since then, remediation appears to have been completed. (Doc. # 81-1 at 7). In July 2020, the Bells and Kokosing entered into a second contract regarding remediation efforts. (Doc. # 82 at 9). Kokosing retained ATC to craft a remediation plan (id.), and at Kokosing's own expense, a third-party contractor “[dug] out most of the black sand and regrade[d] the Bells' property.” (Doc. # 81-1 at 7). A Kentucky Department of Environmental Protection project...
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