Tilot Oil, LLC v. BP Prods. N. Am., Inc.

Decision Date17 January 2012
Docket NumberCase No. 09–CV–210–JPS.
Citation907 F.Supp.2d 955
PartiesTILOT OIL, LLC, Plaintiff, v. BP PRODUCTS NORTH AMERICA, INC., Defendant.
CourtU.S. District Court — Eastern District of Wisconsin


Donald P. Gallo, Pamela H. Schaefer, Carolyn A. Sullivan, Reinhart Boerner Van Deuren SC, Waukesha, WI, for Plaintiff.

Kathryn R. Downey, Michael S. Ryan, Nicholas J. O'Connell, Murnane Brandt, St. Paul, MN, for Defendant.


J.P. STADTMUELLER, District Judge.

On June 30, 2011, the parties in this action filed cross-motions for summary judgment (Docket # 67, # 75). The case arises under the Resource Conservation and Recovery Act's citizen suit provision, 42 U.S.C. § 6972, as well as Wisconsin tort law. Plaintiff Tilot Oil, LLC (Tilot) has essentially alleged that defendant BP Products North America, Inc. (BP) is liable for petroleum-contaminated groundwater that is impairing the use of buildings on Tilot's property. The court will deny Tilot's motion for summary judgment, and grant BP's motion in part.

In the time these motions have been pending, BP has also filed a Motion to Strike (Docket # 120) and a Motion for Leave to File Supplemental Memorandum, Proposed Facts, and Affidavit (Docket # 125). The Motion to Strike requests the court strike certain exhibits and portions of exhibits from the record, submitted by Tilot in support of its motion for summary judgment and in opposition to BP's motion. The motion for leave to file requests that certain exhibits, only available after filing the original submissions, be added to the record along with a supplemental memorandum. Both motions will be denied, with the understanding that the parties may move in limine later regarding the admissibility of evidence at trial.

1. Background

Tilot owns and operates a parcel of land in Green Bay, Wisconsin, adjacent to the Fox River (“Tilot Site”). (Stipulated Facts ¶¶ 2, 4) (Docket # 69). Prior to Tilot's ownership, the site, made up of three parcels, was owned by a number of parties before its transfer to Wolf Acquisition, LLC, in 2003. (Stipulated Facts ¶¶ 6–7); (June 30 Schaefer Aff. ¶ 9 & Ex. 51) (Docket # 71).1 Craig Wolf is the manager of Tilot. (Stipulated Facts ¶ 5). Among the prior owners in the chain of title, BP owned the Tilot Site at one point and operated a bulk oil storage and distribution terminal on the site.2 (Stipulated Facts ¶¶ 7–8). Most recently, Wolf Acquisition, LLC, purchased the Tilot Site from Tilot Oil Company, Inc., Donald Tilot, and Jeffrey Tilot. (Stipulated Facts ¶ 6); (June 30 Schaefer Aff. ¶ 9 & Ex. 51). Currently, Tilot's Buildings D, E, and C are located along the Tilot Site's north property boundary. (Stipulated Facts ¶ 3). BP also owned a parcel of land north of the Tilot Site, on which it likewise owned and operated a bulk oil storage and distribution terminal (“BP Site”). (Stipulated Facts ¶ 14).

Releases of petroleum products and/or constituents have occurred at the BP Site both prior to 1982 and subsequent to 1987. (Stipulated Facts ¶ 20). The releases contained fuel oil, diesel fuel, and gasoline. (Stipulated Facts ¶ 22). Reports from 1991 show the presence of a plume of petroleum contamination on the Tilot Site beneath Building D. (Def.'s Resp. to Pl.'s Proposed Material Facts [hereinafter DRPMF] ¶ 27) (Docket # 101). The petroleum plume extending from the BP Site to the Tilot Site contains both “free product” as well as dissolved phase petroleum. (DRPMF ¶¶ 30–31).3 Dissolved phase petroleum contamination extends beyond the southern boundaries of the free product plume and onto the Tilot Site. (Stipulated Facts ¶ 23). The free product plume's existence on the Tilot Site is due at least in part to migration from the BP Site. (DRPMF ¶¶ 35, 47, 49). At the same time, it is undisputed that some spills also occurred on the Tilot Site itself, in the vicinity of Building D. (Pl.'s Resp. to Def.'s Proposed Material Facts [hereinafter PRPMF] ¶ 5) (Docket # 95). However, the parties vigorously dispute whether these spills may have contributed to groundwater contamination now affecting Building D. ( See, e.g., PRPMF ¶¶ 11–12 & Responses). In any event, when the water table level rises above the elevation of the basement floor slab of Building D, groundwater contaminated with petroleum constituents has been observed above the floor slab. (DRPMF ¶ 51). The plume does not, however, threaten the nearby Fox River. (Pl.'s Resp. to Def.'s Add'l Proposed Material Facts ¶ 5) (Docket # 109).

Numerous tests have been done in and around Building D in order to determine the level of health risk presented by the contamination. Around February 2005, Tilot installed a ventilation fan in the basement of Building D. (PRPMF ¶ 80). Various parties have taken a number of air samples for benzene, which happens to have the lowest Occupational Safety and Health Administration (“OSHA”) permissible exposure level (“PEL”) of any hydrocarbon associated with petroleum products.4 (PRPMF ¶¶ 77, 81). These tests, from June 2006 through June 2011, total fifteen air sampling events, each event including a number of individual samples from various areas on the Tilot Site, including the basement of Building D. (PRPMF ¶ 81); (Aug. 24 Schaefer Aff. Ex. 81–A) (Docket # 97–11).

The parties dispute what legal standards ought to be applied to the various benzene concentration samples, as well as the validity of certain samples based on the methods used, but for the sake of setting out the factual bases, sampling has shown concentrations of: 63 µg/m 3 in Building C, 360 µg/m 3 in Building E, 2,700 µg/m 3 on the first floor of Building D, and 2,000 µg/m 3 to 5,700 µg/m 3 in the basement of Building D in March 2008; 10 µg/m 3 on the first floor of Building D and 43 µg/m 3 to 94 µg/m 3 in the basement of Building D in March 2009; and 64 µg/m 3 to 110 µg/m 3 on the first floor of Building D and 240 µg/m 3 to 320 µg/m 3 in the basement of Building D in June 2009. (June 30 Drought Aff. ¶ 7(b)-(c) & Ex. 2) (Docket #73–2). The highest concentration of benzene detected, 5,700 µg/m 3 in the basement of Building D in March 2008, equates to 1,800 parts per billion by volume (“ppbv”), or 1.8 parts per million (“ppm”). (June 30 Drought Aff. ¶ 7(c)). During prior sampling events in 2006 and 2007, concentrations of benzene in Building D never exceeded 50 µg/m 3 and often remained below 20 µg/m 3. (June 30 Schaefer Aff. ¶ 2(jj) & Ex. 36). In sum, none of the sampling for benzene has shown concentrations exceeding the OSHA PEL of 1.0 ppm except for the 1.8 ppm result in March 2008, (DRPMF ¶ 6); (PRPMF ¶ 77).5 March 2008 samples also exceeded the National Institute for Occupational Safety and Health's (“NIOSH”) recommended exposure limit for benzene of 319 g/m and the U.S. Environmental Protection Agency's (“EPA”) Region III Industrial Indoor Air Screening Level of 1.6 µg/m 3.6 At some points, these various samples have also exceeded Wisconsin's vapor action level (“VAL”) for benzene of 16 µg/m 3. Moreover, during the March 2008 sampling, Theodore Hogan performed four additional samples in the basement of Building D—as with the other March 2008 samples, the ventilation fan was turned off. (Aug. 24 Schaefer Aff. Ex. 81–A). Those four additional samples did not test for benzene, but did register the concentration of Total Volatile Organic Compounds (“VOCs”) as Diesel Fuel, finding concentrations of 270 mg/m 3 and 320 mg/m 3 from samples collected approximately three to four feet above ground surface. (Aug. 24 Schaefer Aff. Ex. 81–A, 81–B) (Docket #97–11). These two samples exceeded the American Conference of Governmental Hygienists time-weighted average standard of 100 mg/m 3 for diesel fuel. (DRPMF ¶ 10); (PRPMF ¶ 81, Response).7 Tilot does not assert that anyone took further samples for Total VOCs as Diesel Fuel.

March 2008 testing of near-slab soil gas outside Building D also showed benzene concentrations ranging from 500 µg/m 3 to 280,000 µg/m 3. (DRPMF ¶ 53); (June 30 Schaefer Aff. Ex. 36). In March 2010, further testing returned a benzene concentration within a well casing that intersects the floor of Building D's basement that exceeded the OSHA PEL. (DRPMF 56).

According to Tilot, the existence of the contamination at issue has led it to seal off the basement stairs in Building D in order to reduce employee exposure to any vapors rising from the basement to the main floor. (Wolf Aff. ¶ 14) (Docket # 72). The existence of the contamination also has caused Tilot to continually maintain and operate the ventilation fan in the basement of Building D. (Wolf Aff. ¶ 15).8 Tilot asserts that it cannot use Building D without continually operating the fan. (Wolf Aff. ¶ 15). By the same token, from 1977 until 2000, the basement of Building D was never used for any purpose, typically because there was water present. (PRPMF ¶ 10); (Tilot Dep. 90:4–8, Downey Aff. Ex. 1) (Docket # 82–2). Tilot's expert also developed a benzene compliance program restricting employee activity in the basement of Building D, though it was not proposed until January 2010. (DRPMF ¶ 54); (Hogan Aff. Ex. A, at Ex. H) (Docket # 74–1). Prior to this, there had been at least one occasion, in 2004, when fumes were so strong in the building that Tilot employees were forced to leave Building D. (Wolf Aff. ¶ 10). In 2009, four Tilot employees were seen for medical evaluation after chemical exposure and developing rashes. (DRPMF ¶ 63); (Dr. Sliwinski Report, Second Downey Aff. Ex. 83) (Docket # 104–7). The examining doctor concluded that the rashes were not work-related and not the result of chemical exposure in the basement of Building D. (Dr. Sliwinski Report, Second Downey Aff. Ex. 83). A doctor more recently hired by Tilot has come to the opposite conclusion. (Borkowski Dep. 40:13–41:11, Second Downy Aff. Ex. 71) (Docket # 104–3). Tilot also claims to have lost time spent by management and supervisory staff, as well as directed business resources toward the dispute at hand rather than...

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