United States v. Brothers Enterprises, Inc.

113 F. Supp. 3d 907, 81 ERC (BNA) 1445, 2015 U.S. Dist. LEXIS 85429, 2015 WL 4039848
CourtDistrict Court, E.D. Texas
DecidedJuly 1, 2015
DocketCIVIL ACTION NO. 1:13-CV-17
StatusPublished
Cited by5 cases

This text of 113 F. Supp. 3d 907 (United States v. Brothers Enterprises, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brothers Enterprises, Inc., 113 F. Supp. 3d 907, 81 ERC (BNA) 1445, 2015 U.S. Dist. LEXIS 85429, 2015 WL 4039848 (E.D. Tex. 2015).

Opinion

MEMORANDUM AND ORDER

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

The government is suing Defendants Brothers Enterprises, Inc., (“Brothers”), [909]*909Tom’s Welding, Inc. (‘Welding”), and Leesboro Corporation (“Leesboro”) for violations of the Oil Pollution Act (“OPA”), 33 U.S.C. §§ 2701-2761,1 Pending before the court are the government’s motion for summary judgment (# 107) against Brothers and Welding and Brothers’s cross-motion for summary judgment (#112) against the .government. Having considered the motions, the submissions of- the parties, the pleadings, and the applicable law, the court is of the opinion that both motions should be denied. •

I. Background.

This lawsuit involves the cleanup of an oil spill emanating from the oil barge DIA-1A (the “Barge”) into waters near Orange, Texas. Brothers purchased the Barge at a United States Marshal’s sale on April 23, 2008. The double-hulled Barge was built in 1975 and had a 23,735 barrel cargo capacity. After Hurricane Ike struck the Texas coast on September 13, 2008, the Barge, which contained both an “oil/water solution” and “asphaltene,”2 became grounded on wetlands adjoining, a tributary to the Sabine River near Orange, Texas. Brothers subsequently hired a marine surveyor, Mark Shiffer (“Shiffer”), owner of Mark Shiffer Surveyors, Inc. (“MSS”), to assess the Barge’s condition.

In his initial report, submitted on September 20,2008, Shiffer noted:

The subject vessel was aground, nearly perpendicular to the''shoreline, with the bow facing inland. The stem was located approximately 20’ inshore of the water’s edge. The vessel was lying upon marsh grass, on what appears to be a soft muddy bottom. The marsh appears to have an elevation of roughly 1’ to 2’ above [ ] the mean water level____ The bottom plate was not sighted. The area surrounding the vessel did not appear to have any pilings or other protuberances.

Shiffer further concluded that while the Barge did not sustain any “new damage” during Hurricane Ike, it had previously suffered some “old damage.” Specifically, the “aft deck plate was found to have waste holes,” and the “port gunwale was found with a 12’ x 12’ hole in way of the number 3 void.”

On an unspecified date shortly after submitting his initial report, Shiffer learned that the Barge was resting on top of gas pipelines, some of which were identified as “high pressure.” At deposition, Shiffer stated that upon discovering that the Barge was “sitting” on top of the pipelines, he became concerned and recommended that the Barge “needed to be moved” because it “presented a danger.” Brothers thereafter directed MSS to solicit bids from companies that could remove the Barge from its beached location. Coral Marine Services, L.L.C., (“Coral”), a company specializing in salvage and recovery operations, was ultimately selected., Coral arrived on site on November 7, 2008, with a 250-ton salvage derrick barge and a small towboat. After a week of operations, however, Coral abandoned its removal efforts “due to [the] dangerous proximity to underground pipe lines.”

Tom Khai Dinh (“Dinh”), a co-owner of Welding, thereafter approached Brothers and submitted a removal bid. Welding’s initial bid, which acknowledged that the Barge was located “on top of 3 gas line[s],” was submitted on December 12, 2008. On December 27, 2008, Welding submitted a revised bid, again stating, “[w]e under[910]*910stand that the Barge is on top of the 3 pipe line[s],” and adding that “[Welding] will take full responsibility of any damage while remov[ing]. the Barge.” On December 30, 2008, Welding signed a wreck removal agreement with Brothers and thereafter became the sole owner of the Barge.

Welding’s initial removal plan was to use two “heavy pull winches” to pull the Barge off the beach while injecting a biodegradable soap to “break, suction and aid in minimizing friction in the dragging process.” Once that plan proved unsuccessful (the Barge moved only three inchés), Welding' turned to' its “Plan B” — a proposed cutting up of the Barge into two parts, each ‘of which would purportedly have been light' enough to pull off the bank. According to Dinh, the Barge would “never sink because it’s got a self-container.” Dinh apparently tried to obtain approval from the United ■ States Coast Guard for this salvage plan on three separate occasions, but the requests were denied because they lacked specificity. In the meantime, the Coast Guard reportedly warned Welding “not to do any cutting up on [the] Barge without having an approved salvage plan.”

Once Dinh realized that any future’ recovery operations with Coast Guard approval would be cost prohibitive, hie attempted ’ to sell the Barge to another buyer. On September 2, 2009, Dinh sold the Barge to Yung Lee (“Leé”), a scrap dealer and the owner of Leesboro Corporation, for $1.00.3 On October 8, 2009, the United States Coast Guard discovered oil discharge from the Barge into the Sabine River and sent Welding. an Administrative Order stating:

On October 8, 2009, personnel from our office conducted an investigation into a salvage operation- at the Port of Orange in Orange, TX which involved the removal of approximately 20,000 gallons of number six oil from the barge DIA-1A. During the ■ -investigation, -the Coast Guard discovered the following; an oil discharge into the Sabine River originating from the barge DIA-1A, improper disposal of waste materials, ¡lack of an environmental response plan, and failure to comply with-the previously approved salvage plans.

In response to the spill, which purportedly released more than 110,000 gallons of oily wate!r and 34,400 gallons of heavy oil into the- Sabine River, the Coast Guard launched a cleanup operation that included spill management, ■ roadway construction, oil product extraction, staging area development, and steel removal. According to the government, these cleanup efforts continued through at least March 17, 2010, and cost approximately $1,315,620.85.

In its instant motion for summary judgment, the government argues that there aré no genuine issues of material fact that Brothers and Welding violated OPA because they were both “responsible parties” when the Barge’s grounding created a “substantial threat of a discharge.” In its cross-motion for summary judgment,' Brothers argues as a matter of law that it (1) could not have been a “responsible party” because it did pot own the Barge at the time of the oil. discharge, and (2) the Barge’s grounding on top of gas pipelines did not create a “substantial threat of a discharge.”4 Welding’s response to the [911]*911government’s motion for summary judgment essentially mirrors the arguments set forth by Brothers. >

II. Analysis

A. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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113 F. Supp. 3d 907, 81 ERC (BNA) 1445, 2015 U.S. Dist. LEXIS 85429, 2015 WL 4039848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brothers-enterprises-inc-txed-2015.