Wilson Rd. Dev. Corp. v. Fronabarger Concreters, Inc.

• Decision Date: 11 September 2013
• Docket Number: Case No. 1:11–CV–84 (CEJ).
• Citation: 971 F.Supp.2d 896
• Parties: WILSON ROAD DEVELOPMENT CORP., et al., Plaintiffs, v. FRONABARGER CONCRETERS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

971 F.Supp.2d 896

WILSON ROAD DEVELOPMENT CORP., et al., Plaintiffs,

v.FRONABARGER CONCRETERS, INC., et al., Defendants.

Case No. 1:11–CV–84 (CEJ).

United States District Court,

E.D. Missouri,

Southeastern Division.

Sept. 11, 2013.

Leah J. Knowlton, Matthew L. Mattila, Ryan A. Kurtz, Miller and Martin LLP, Atlanta, GA, Tom K. O'Loughlin, II, O'Loughlin and O'Loughlin, Cape Girardeau, MO, for Plaintiffs.

Brittany D. Kozal, Dale A. Guariglia, Rhiana A. Luaders, Bryan Cave LLP, John F. Cowling, Stephen N. Limbaugh, Sr., Winston E. Calvert, Armstrong Teasdale, LLP, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court on the motion for summary judgment filed jointly by defendants Union Electric Company d/b/a Ameren Missouri (Ameren) and Citizens Electric Corporation (Citizens)(collectively referred to as the “utility defendants”), and the motion filed by defendant Fronabarger Concreters, Inc. (Fronabarger). Plaintiffs oppose these motions and the issues are fully briefed.

Also before the Court are defendants' motion in limine, and defendants' and plaintiffs' motions to strike affidavits and declarations submitted in support of, or in opposition to, summary judgment.

I. Background

Plaintiffs bring this action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., and state law, seeking to hold defendants liable for the environmental contamination of their property, a 43.5 acre tract of land in Cape Girardeau, Missouri (“Dumey property”). On March 17, 1989, plaintiff Brenda Dumey acquired the Dumey property from Six–Thirty Corporation in satisfaction of a debt. Brenda Dumey subsequently placed the property into the Brenda Kay Dumey Revocable Living Trust and the Daniel E. Dumey Revocable Living Trust, and she and her husband Daniel Dumey took title as trustees. In 2011, shortly before filing the instant case, the Dumeys formed Wilson Road Development Corporation (WRDC), to develop and sell the Dumey property. The named plaintiffs in this case are the Dumeys, individually and as trustees, and WRDC.

The Dumey property is downhill and downgradient from property formerly owned by Missouri Electric Works, Inc. (MEW). The Dumey property is separated from the MEW property by a distance of 300 feet. From 1954 to 1988, MEW operated a business that purchased, sold, and repaired electrical equipment, including used electrical transformers. Some repairs performed by MEW required draining and changing the oil inside of the transformers, some of which contained polychlorinated biphenyls (PCBs). The manufacture and use of PCBs were banned in the late 1970s under the Toxic Substances Control Act, and PCBs are identified as a hazardous substance under CERCLA. 42 U.S.C. § 9601(14); 40 C.F.R. § 302.4. The operation of MEW is estimated to have generated 28,000 gallons of waste oil, which MEW disposed of on or off site. United States v. Union Elec. Co., 934 F.Supp. 324, 326–27 (E.D.Mo.1996).

The Environmental Protection Agency began investigating MEW in the mid–1980s. In 1986, an EPA field investigation found that soil on MEW's property was contaminated with PCBs. The investigation raised concerns regarding the possible spread of PCB contamination beyond MEW's property. Pl. Ex. 3H [Doc. # 104–24]. In 1989, the EPA found groundwater contamination, and surface soil contamination on over 70% of the MEW Site, including more than four acres of highly contaminated surface soil. United States v. B & D Elec., Inc., No. 1:05–CV–63 (CDP), 2007 WL 1395468, at *1 (E.D.Mo. May 9, 2007) (discussing the EPA's investigation of MEW). The MEW site was designated as a Superfund Site and placed on the National Priorities List in 1990, shortly after Brenda Dumey acquired the Dumey property nearby.

From 1988 to 1991, the EPA sent notices to potentially responsible parties (PRPs), inviting them to participate in settlement negotiations. The negotiations resulted in the entry of a consent decree between the United States, the state of Missouri, and a group of PRPs. Among the settling PRPs were the utility defendants Ameren and Citizens. During MEW's operation, the utility defendants had sent used transformers to MEW for repair, and sold used transformers to MEW either directly or through a third-party broker, National Electric Service (NES). In total, Ameren transferred 2,104 transformers to MEW, and Citizens transferred 716 transformers.

The consent decree required the settling PRPs (later known as the MEW Trust) to perform soil remediation and a groundwater study at the MEW site, and reimburse the EPA for oversight costs. Union Elec. Co., 934 F.Supp. at 332 (re-entering the consent decree); 132 F.3d 422 (8th Cir.1997) (affirming the re-entry). The MEW Trust conducted remediation including thermal treatment of contaminated soil, and sued MEW and other PRPs for contribution. Soil remediation was completed in 2000, and approved of by the EPA in its First and Second 5–year reviews in 2004 and 2009. Pl. Ex. 3C; 4I [Docs. # 104–19; 104–38]. In July 2003, the MEW Trust began fieldwork on the Dumey property and installed monitoring wells on the property pursuant to a license agreement with Brenda Kay Construction, Inc. (BKC), another development corporation founded by the Dumeys. Def. Ex. N [Doc. # 93–14]; Pl. Ex. 42 [Doc. # 104–81]. Environmental investigation on the Dumey property has confirmed the presence of PCBs.

Defendant Fronabarger is the current owner of the MEW property. Fronabarger acquired title to the property on November 12, 2009,¹ and constructed self-storage units on the property in 2010. Plaintiffs claim that this construction led to increased erosion and exacerbated PCB contamination on the Dumey property.

On May 11, 2011, plaintiffs filed suit against Ameren, Citizens, and Fronabarger, among others. Defendants now move for summary judgment on plaintiffs' claims under CERCLA (Counts I–IV), and plaintiffs' state law claims of nuisance (Count V), trespass (Count VI), negligence (Count VII), and strict liability (Count VIII). Before addressing the motions for summary judgment, the Court will discuss the parties' motions to strike.

II. Motions to Strike

A. Declarations of Felix Flechas and Fred Burnside

A written report of an expert submitted pursuant to Fed.R.Civ.P. 26(a) must contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i). If a party fails to provide information required by Fed.R.Civ.P. 26(a), and does not provide supplemental information pursuant to Rule 26(e), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

The utility defendants and defendant Fronabarger move to strike the declarations of plaintiffs' experts Felix Flechas and Fred Burnside. Pl. Ex. 3–4 [Docs. # 104–16; 104–27]. These declarations were submitted after the close of discovery. Defendants argue that these declarations contain new, and in some instances contradictory, opinions that were not disclosed in the original expert reports. Defendants move to strike the declarations in their entirety, but specifically object to the experts' statements regarding (1) the migration of PCBs during Fronabarger's ownership of the MEW property; (2) the utility defendants' failure to maintain the soil cap and prevent erosion; (3) the hazards associated with PCBs; and (4) historical grid sampling.

The Court has examined the declarations, expert reports, and deposition testimony of Flechas and Burnside, and concludes that the opinions expressed in the declarations are not new. In their October 2012 expert reports, Flechas and Burnside explained that PCBs migrated and continue to migrate during Fronabarger's ownership of the MEW site, and that failure to maintain a vegetative cap contributed to erosion. Pl. Ex. 3A; 4A [Docs. # 104–17, p. 15–16; 104–28, p. 14]. Flechas' expert report also explains potential flaws in the grid sampling performed in 2001, and refers to PCBs as carcinogens. Pl. Ex. 3A [Doc. # 104–17, p. 6, 10]. To the extent that the declarations differ from the expert reports or depositions, they merely expand upon or clarify initial opinions that the defendants had an opportunity to test during discovery. They do not express new or contradictory opinions that might prejudice the defendants. Accordingly, defendants' motions to strike the declarations will be denied.

B. Affidavits of Warren Mueller and Van Robinson

“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). The Court must disregard portions of affidavits made without personal knowledge or that purport to state legal conclusions as fact. Howard v. Columbia Pub. School Dist., 363 F.3d 797, 801 (8th Cir.2004).

Plaintiffs argue that the affidavits of Warren Mueller, Def. Ex. C [Doc. # 88–3], and Van Robinson, Def. Ex. D [Doc. # 88–4], contain legal conclusions and statements made without personal knowledge. Plaintiffs object to statements in Mueller's affidavit regarding MEW's practice of bidding on and reselling used transformers and the existence of a nationwide market for used transformers [Doc. # 88–3; ¶¶ 3–5], and they argue that Mueller lacks personal knowledge of these matters. However, the Court is convinced that Mueller, through his extensive employment at Ameren, his review of MEW records, and his intimate involvement with the MEW Steering Committee, has acquired personal knowledge of MEW's operations and of the operation of the market for used transformers in general.² Therefore,plaintiffs' motion to strike these paragraphs will be...