Day, LLC v. Plantation Pipe Line Co., 2:16–cv–00429–LSC

• Decision Date: 04 June 2018
• Docket Number: 2:16–cv–00429–LSC
• Parties: DAY, LLC, et al., Plaintiffs, v. PLANTATION PIPE LINE COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

315 F.Supp.3d 1219

DAY, LLC, et al., Plaintiffs,

v.PLANTATION PIPE LINE COMPANY, et al., Defendants.

2:16–cv–00429–LSC

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

Signed June 4, 2018

Jeffrey E. Friedman, Lee T. Patterson, Matthew Slaughter, Friedman Dazzio Zulanas & Bowling P.C., Birmingham, AL, for Plaintiffs.

Christopher J. Nicholson, G. Douglas Jones, Gregory H. Hawley, Jones & Hawley, P.C., Alyse Nicole Windsor, Robert R. Baugh, Sirote and Permutt P.C., Sarah B. Jackson, Law Office of Sarah Bruce Jackson, Birmingham, AL, for Defendants.

MEMORANDUM OF OPINION

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 100 S.Ct. 2124.

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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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:

(

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