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Day, LLC v. Plantation Pipe Line Co.

United States District Court, N.D. Alabama, Southern Division

June 4, 2018

DAY, LLC, et al., Plaintiffs,


          L. Scott Coogler United States District Judge.

         Plaintiffs Day, LLC (“Day”) and Kent Upton (“Plaintiff Upton”) (collectively “Plaintiffs”) brought this action against Plantation Pipe line Company (“Plantation”) and Kinder Morgan Energy Partners L.P. (“Kinder Morgan”) (collectively “Defendants”) alleging various state-law tort claims as well as claims under the citizen-suit provisions of the Clean Water Act (“CWA”) and Resource Conservation and Recovery Act (“RCRA”). The Court has before it Defendants' Motion for Partial Summary Judgment (doc. 54), as well as Defendants' Motion to Exclude Testimony of Barry Sulkin (doc. 56) and Second Motion to Exclude Testimony of Barry Sulkin (doc. 81). For the reasons stated more fully herein, Defendants' Motion for Partial Summary Judgment is due to be granted; their Motion to Exclude Testimony of Barry Sulkin is due to be granted; and their Second Motion to Exclude Testimony of Barry Sulkin is due to be denied as moot.

         I. Background

         Defendants own a pipeline system that runs from Louisiana to Washington, D.C. which transports refined petroleum products such as diesel and gasoline. In 1979, Plantation discovered a dent in the pipeline in Shelby County, Alabama near the crest of Double Mountain. Plantation determined that if the dent was not repaired, that section of the pipeline stood a higher chance of failure. Plantation undertook to repair the dent by the installation of a “B-sleeve, ” a full-encirclement, pressure-containing sleeve.

         Before it is installed, a B-sleeve is composed of two separate half-pipe pieces that fit together to form a slightly larger pipe section. The B-sleeve is cut along the length of the pipe, so that if one was to look at the cross-section of a B-sleeve there would be two half-circles of equal circumference. In order to install the B-sleeve as Plantation did in 1979, an operator lays the two sections of the B-sleeve over the affected area, welds along the seams connecting the two parts of the B-sleeve to form what is essentially a larger pipe-sleeve that wraps around the full circumference of the pipe, and the affected area. The circumferential ends of the B-sleeve are then welded so that they close the ends of the sleeve. A B-sleeve is pressure containing, so that even if the affected area leaks, the leaking fluid cannot normally escape past the B-sleeve. (Wright Depo at 51-53.)

         Under 49 C.F.R. § 195.452, Defendants were required to create so-called Integrity Management Programs (“IMPs”) for pipeline segments in “high consequence areas.” IMPs are written frameworks that operators use to prevent pipeline accidents and implement where an accident occurs. Defendants' current IMP requires that the B-sleeve used to “patch” a dent would require an epoxy filler be placed between the dent and the B-sleeve. (Doc. 83-6 at 1; Caligiuri Depo. at 98-99.) However, at the time of the repair in 1979 Plantation's maintenance standards did not require any filler, and there in fact was no filler placed between the dent and the B-sleeve.

         In 1989, Plantation excavated the dented portion of the pipeline to determine whether the use of a non-low-hydrogen weld around the B-sleeve had led to any hydrogen embrittlement, which could compromise the integrity of the seal. (Id. at 111-112.) Defendants conducted a nondestructive examination technique called a “dye penetrant inspection” to test for defects along the weld of the B-sleeve. (Caligiuri Report at 13.) The technique did not expose any issues in the 1979 repair's integrity, and after additional visual inspection, Defendants reburied the pipe section. Following the 1989 test, there appears to have been no further excavations of the pipeline until the leak in 2014. In 2000, Kinder Morgan began to operate Plantation and the pipeline, employing a number of sophisticated techniques and operations to monitor the operation of the pipeline.

         Plaintiffs own in total approximately 250 acres of land adjacent and contiguous to Defendants' right of way for the pipeline. The property is used for commercial and recreational hunting and fishing. Plaintiff Upton also resides on the property. On August 21, 2014, Grant Upton, who is Plaintiff Upton's son, called his father to tell him that there was a strong smell of gasoline in the valley and that he observed gasoline pooling in a stream in the valley floor of Double Mountain on Plaintiff Upton's property. Plaintiff Upton came to the property and then called Plantation to report what he believed to be a gasoline leak.

         Plantation mobilized employees and third-party contractors, and by that evening had assembled approximately one hundred persons at the site. Plantation also contacted the Alabama Department of Environmental Management (“ADEM”) and the United States Environmental Protection Agency (“EPA”) about the release. Three days later on August 24, 2014, Plantation had traced the source of the leak to the section of the pipeline that was repaired in 1979 with the B-sleeve. It completed repairs of the pipeline on that same day. A later laboratory analysis of the B-sleeve and underlying pipeline section showed that a crack had developed within the dent that had been sleeved in 1979.

         Plantation and its contractors continued their emergency response and cleanup based on written plans for product recovery and monitoring local surface water bodies. By September 2, 2014, Plantation had completed its emergency response actions and had transitioned to long-term site management. ADEM and EPA representatives completed a site walk on September 10, 2014, and agreed that all measures up to that point were completed satisfactorily.

         During the initial emergency response and into the long-term site management phase, one of Plantation's contractors, CH2M Hill Engineers, Inc. (“CH2M”) prepared a number of reports on behalf of Plantation to submit to state and federal regulators. After submitting a summary report of emergency response actions, CH2M submitted a Site Assessment Work Plan (the “Work Plan”) which laid out a number of tasks to find the extent of the damage, continue monitoring risk areas, and remediate the site. ADEM approved the Work Plan on October 6, 2014. Throughout 2015, CH2M submitted multiple reports to ADEM that kept the regulator abreast of the remediation and testing work CH2M was performing, and allowed ADEM to continue to monitor and propose additional clean-up measures.

         II. Standard of Review

         A motion for summary judgement is appropriate when “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). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence but must simply determine whether there are any genuine issues to be resolved at trial. Anderson, 447 U.S. at 249.

         In considering a motion for summary judgment, trial courts must give deference to the non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). “[T]he moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         III. Daubert Motion

         Defendants argue that Plaintiffs' expert Barry Sulkin (“Sulkin”)'s testimony that there continues to be an ongoing leak from the pipeline should be excluded under Rule 702 and the framework of Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993). Rule 702 states that a:

witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The Court has the obligation to screen expert evidence under Rule 702 to ascertain if it “is not only relevant, but reliable.” Daubert, 509 U.S. at 589. “[T]he requirement that an expert's testimony pertain to ‘scientific knowledge' establishes a standard of evidentiary reliability.” Id. at 590 . Daubert's requirements apply not only to scientific knowledge, but also to all forms of specialized knowledge on which experts testify. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). Under Daubert, the Court's inquiry is flexible, but “[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” 509 U.S. at 594-595.

         Tampa Bay Water v. HDR Engineering, Inc. directs the Court to conduct a three-part inquiry to determine the admissibility of expert testimony, weighing whether:

(1) [T]he expert is qualified to testify competently regarding the matters he intends to address;
(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

731 F.3d 1171, 1183 (11th Cir. 2013) (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)).

         Sulkin's testimony is key to Plaintiffs' CWA claim because, as stated below, in order for Plaintiffs to maintain their CWA claim they must show that there is an ongoing violation at the time they filed suit. Sulkin stated in his expert report and testified during his deposition that there was a continuing leak in the pipeline. Defendants argue that Sulkin's testimony to such should be struck because (1) he is not qualified to testify on whether the pipeline is continuing to leak based on pipeline design and site geology and (2) the methodology Sulkin uses to testify to the pipeline leakage is not based on reliable principles or methods.

         Sulkin is an environmental consultant with over forty years of experience studying the impacts of a variety of pollutants on surface waters, ground waters, and wetlands. He has worked as an environmental regulator for what is now the Tennessee Department of Environment and Conservation and for the EPA. (Doc. 74 at 4.) Sulkin has visited the contamination site on two different occasions, in February 2017 and April 2017, and in both occasions he observed, smelled and performed sampling of ongoing gasoline contamination. He took samples of water and sediment during those visits and sent those samples to laboratories for analysis which confirmed the presence of gasoline. Sulkin also based the conclusions contained in his expert report on the documents submitted by Defendants to ADEM as part of the ongoing reporting requirements.

         Defendants asked Sulkin during his deposition how he came to the conclusion that there was an ongoing release of gasoline from Defendants' pipeline. He first identified that the gasoline smell was a “fresh” smell as opposed to a smell of gasoline that has decayed:

Q: . . . I want to make sure I understand what you're saying about the possibility that there's an ongoing release of the pipeline, okay? Are you saying to a reasonable degree of scientific certainty that's your opinion that there's an ongoing release there?
A: Yes.
Q: Have you done any testing to determine that?
A: Only the testing for the BTEX constituents.
Q: Right
A: And what I saw and smelled at the site.
Q: Okay
A: Smells way too fresh for being two years old.

(Doc. 67-1 at 207-08.) Sulkin then goes on to describe in another case how he had suspected an ongoing leak based on the smell of “fresh gasoline, even after the source storage tank was tested by a pressurizing device and showed there was no leak. Eventually, according to Sulkin, after digging around the tank a hole was spotted in the tank, showing that the “fresh” smell of gasoline correctly indicated an ongoing leak. (Id. at 211-12.) However, Sulkin does not explain this methodology in greater detail other than stating that the smell of fresh gasoline is different than stale gasoline.

         Sulkin additionally stated that the high elevation at which he saw gasoline led him to conclude there is an ongoing release:

Q: . . . So do you have any other basis for your belief that there's an ongoing release?
A: Yes.
Q: Tell me what.
A: As I described earlier, the elevation, to me, makes it incomprehensible that all the free product hasn't always moved down into the valley. It's just too steep, too long a time since the release that if it wasn't free product it would be gone by now, and what would be coming out of the ground would be very faint and diluted. It wouldn't still be enough to grow the orange material, wouldn't have that strong presence of gasoline.

(Id. at 211.)

         There are significant problems with Sulkin's competency to render the opinion that there is an ongoing leak based on the two methods stated above, i.e., the “smell-test” and the geology of the site. Sulkin admits he is not a geologist and he has not studied the geology of the release site. (Sulkin Depo. at 44, 216.) While he has worked with other gasoline spills before, he has never worked with sites that are in mountainous terrain like the Plantation pipeline. (Id. at 216.) He likewise admits has not conducted any mapping of the “plume migration, ” the direction of movement of the gasoline through the groundwater, because he doesn't “do that kind of work.” (Sulkin Depo. at 213.) His theory of a continuous leak is thus based on the shaky inference that because the pipe leak occurred at a high elevation, gravity must have already pulled all gasoline to lower elevations, and because there is still gasoline at high elevations there still is a leak.

         Plaintiffs offer no basis for this theory, and while Sulkin may be qualified to testify on the remediation of dangerous chemical spill sites Plaintiffs have not shown how he is qualified to testify on the movement of gasoline through subsurface. “Merely demonstrating that an expert has experience, however, does not automatically render every opinion and statement by that expert reliable.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1201 (11th Cir. 2010). The Advisory Committee Notes to Rule 702 state:

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply “taking the expert's word for it.” . . . The more subjective and controversial the expert's inquiry, the more likely the testimony should be excluded as unreliable.

         Committee Notes on Rules-2000 Amendment (quoting Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)). While Sulkin states that he is relying on his experience as a chemical spill remediation expert, he has failed to show how his experience is sufficient for the opinions he has rendered in this case, i.e., concerning the effect of gravity on the movement of gasoline away from the pipeline. Sulkin does not account for the other explanation offered by Defendants for why he smelled “fresh” gasoline-that the leaked gasoline could be trapped below the soil surface in a non-porous pocket. During his deposition, Sulkin admits that gasoline could be continuing to leak from a non-porous pocket, but says he has not studied the geology of the site and is not competent to render an opinion on that explanation. (Sulkin Depo. at 215.)

         Sulkin has likewise opined on why there is an ongoing leak, stating that he believes the repair to the B-sleeve was incorrectly done:

The only other factor that sort of weighs in is I know this leak was from an old repair that re -- that failed again. So it wouldn't be surprising to me that it's failed again or never stopped failing. It's like trying to patch an inner tube on your bicycle . . . That patch isn't always going to seal all around the edges, and it's going to leak again. It's time to get a new tube. So my best guess - and I wouldn't even call it a guess. My best opinion is that there's an active leak.

(Sulkin Depo. at 213.) However, Sulkin himself is admittedly not qualified to testify on causes of the leak. He is not a metallurgist and does not consider himself an expert in relation to Department of Transportation regulations as they relate to pipelines. (Id. at 45.) In the following exchange during Sulkin's deposition, Sulkin ...

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