Companies Request Judge Dismiss Federal Lawsuit Over Northport Oil Spill

NORTHPORT, AL — A Northport trucking repair company that admits to being at least in-part responsible for a chemical spill near several homes and an elementary school is asking a federal judge in Alabama to dismiss a lawsuit filed against it and one of its affiliates by a nearby property owner.

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According to filings made in U.S. District Court for the Northern District of Alabama, Burgess Equipment Repair LLC and Tuscaloosa-based Delta Oil Services jointly made a formal request of the court of dismiss the complaint filed in late 2021 by Pro-Built Development LLC — the owner of nearby residential properties where several families live.

The two companies at the center of the controversy argue that the accusations connected to the petroleum and chemical spill involve "wholly past conduct," which Burgess' attorneys claim have been addressed since coming to light following Patch's reporting on the spill and the subsequent criminal investigation that was made public in the story's aftermath.

While a separate class action lawsuit has been filed in Tuscaloosa County Circuit Court by residents of nearby Huntington Gardens, the federal suit alleges that much of the oil and solvents identified came from two Delta Oil tanker trucks parked at the edge of the Burgess Equipment property line adjacent to 20 acres owned by Pro-Built Development off of Mitt Lary Road in Northport.

Patch can verify this detail by way of photo evidence provided by those close to the situation.

An independent investigation by Tuscaloosa Patch also confirmed visible oil sheens and noticeable toxic fumes in and around the streams behind the business and in close proximity to Palmetto Street. It's important to point out that these small water sources feed into nearby Carroll's Creek, which is a primary tributary for Lake Tuscaloosa — the source of drinking water for tens of thousands, including the City of Tuscaloosa and Northport.

Oil booms were initially put out to mitigate the potential spreading of hazardous chemicals and the company paid for a site clean-up almost immediately after the story went public. However, residents continue to argue that these measures would do little in reversing the years of likely contamination that is just now being understood and addressed.

The longstanding issues were what first prompted the property owner and local residents to sue the two companies, alleging flagrant violations of the federal Clean Water Act.

In a colorfully-worded response to the motion to dismiss the federal lawsuit, Tuscaloosa attorney Michael Comer praised the reputation of Jeff Friedman — the namesake of the law firm representing Burgess Equipment Repair in the federal lawsuit.

Indeed, in the response and amended complaint filed in late January, Comer writes that Friedman "is so good that he could sell an oil slick at a Riverkeeper rally," before going on to concur that Friedman was indeed correct to point out the shortcomings in the initial filing by Pro-Built Development and its legal counsel.

"[Pro-Built Development's] complaint does include wholly past conduct," Comer states directly. "But, and it’s a big one, there are also allegations of imminent future violations. Our Supreme Court holds that while wholly past conduct will not confer jurisdiction, well-pled allegations of imminent future violations will. By a happy coincidence, [Pro Built Development] alleged well-pled imminent future violations, narrowly avoiding the well-placed banana peel kindly placed by Mr. Friedman."

While a judge has yet to officially rule on the motion to dismiss or move forward with the lawsuit, it's worth acknowledging the wealth of damning anecdotal evidence that substantiates the claims of nearby residents and the adjacent property owner.

As part of our ongoing reporting, Patch spoke with Joseph Ellis — a crucial defendant in the Circuit Court lawsuit and a former driver for Delta Oil Services who could end up testifying against his former employer. He said in an interview that the illegal dumping went on at the southern end of the Burgess property for the two years he worked for Delta Oil Services.

The illegal dumping of chemicals, he said, was done under the direction of his supervisor, Logan Hayes — the brother of Delta Oil President Lucas Hayes. Ellis also insisted Burgess Equipment Repair had no involvement in the illegal activities, which is a notion that has been flatly refuted by those listed as plaintiffs in the two separate lawsuits.

However, prior to speaking with Ellis, Patch reported on a past investigation by the Alabama Department of Environmental Management (ADEM) that seems to align with the ongoing concerns raised by residents in the most recent lawsuits.

In 2014, for example, an investigator visited the Mitt Lary Road location following an anonymous complaint and found oily stains evident at the southwest corner of the property. This is the same spot where cleanup efforts had been focused after the large-scale contamination was identified last summer.

This instance, in addition to another in 2020, were mentioned in the most recent complaint against the two companies. What's more, the legal counsel for Pro-Built Development says Delta Oil Services was found in May 2021 to be noncompliant with ADEM regulations at its Adger facility. This after an ADEM inspector found significant amounts of used oil on the property, including used oil that had leaked into the woods and into a small stream behind the property — all practices consistent with those reported at the Burgess property in Northport.

The initial ADEM complaint said a large pool of what appeared to be motor oil or a petroleum byproduct of some kind was possibly coming from a truck at the top of the hill near the southern end of the Burgess property.

Per the ADEM inspection notes, Burgess Equipment Repair at the time produced roughly 150 gallons of used oil per month. Additionally, following the 2014 inspection, Burgess was asked to address improvements, such as marking containers and getting new equipment, to which he responded with photos of the progress on what was asked.

It does not appear that the company was hit with any fines or citations as a result of the 2014 inspection. And at the same time, many of the business practices brought into focus through allegations and complaints over the last year do not appear to have been addressed or have been cast aside in the six years since the ADEM investigation.

The long, throughly-documented history of disregard for environmental regulations and the public health of the surrounding community make up the primary basis for the Pro-Built Development legal counsel arguing in its most recent filing that there remained a threat of imminent violations in the future if the companies are not held accountable by the court.

Comer requested the motion to dismiss the federal lawsuit be thrown out without standing, going on to refer to both Burgess Equipment Repair and Delta Oil Services as "recidivists" who are unlikely to change for the better unless forced to do so through litigation.

"They have a well-documented history of discharging pollution without a permit," Comer wrote, before going on to later say that Burgess Equipment Repair stores — and continues to store — 12,000 gallons per year of used oil on its property, where the business practices are largely unchanged following the negative publicity.

"Burgess Equipment cannot overcome its unsavory history of pollution discharge," the response agues. "Its track record demonstrates a substantial likelihood that it will pollute in the future ... In a nutshell, Burgess’ seedy history of shoddy containment practices leads to a credible allegation that Burgess is likely going to pollute again. Since Pro-Built’s property is the nearest low point water shed, Pro-Built will again be the property impacted by Burgess’ unlawful discharge."

U.S. District Judge R. David Proctor has yet to issue a ruling on Burgess Equipment Repair's motion for dismissal.

Conversely, the complaint filed in Tuscaloosa County Circuit Court by nearby residents provides requests for compensatory and punitive damages for the 14 residents listed, in addition to the court requiring the companies and their owners to take appropriate remedial actions and steps as the Court deems proper.

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