315 F. Supp. 3d 1219
N.D. Ala.2018Background
- Defendants own and operate a petroleum pipeline repaired in 1979 with a full‑encirclement B‑sleeve over a dent; no filler was used then. A leak was discovered and repaired in August 2014 after gasoline was observed on Plaintiffs' adjoining property.
- Plaintiffs (landowners) sued for various state tort claims and brought citizen suits under the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA); Defendants moved for partial summary judgment and to exclude Plaintiffs' expert, Barry Sulkin.
- Sulkin inspected the site in 2017, smelled and sampled gasoline, and opined there was an ongoing leak; Defendants moved to exclude that opinion under Daubert for lack of qualifications and unreliable methodology.
- Defendants produced evidence the pipeline was located, repaired, and pipeline remediation and monitoring occurred with ADEM and EPA involvement; no evidence of a continuing point‑source discharge at the time the suit was filed beyond residual contamination.
- The court excluded Sulkin’s opinion that the pipeline continued to leak (unqualified methodology and subject matter), granted summary judgment on Plaintiffs’ wantonness, trespass, emotional damages, CWA and RCRA claims, and left negligence and nuisance claims pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Sulkin's opinion that pipeline was still leaking | Sulkin observed fresh smell and site evidence in 2017 and sampled BTEX; therefore an ongoing leak exists | Sulkin lacks qualifications in geology/pipe metallurgy; relies on smell and experience without reliable methodology | Excluded Sulkin's opinion as unreliable and beyond his expertise under Rule 702/Daubert |
| CWA citizen‑suit jurisdiction (ongoing violation) | Presence of petroleum on Plaintiffs' land and migrating contamination establishes an ongoing violation | Violation requires a continuous or intermittent point‑source discharge at time suit filed; discharge ceased in 2014 and Defendants repaired/remediated | No subject matter jurisdiction under §1365(a); CWA claims dismissed for lack of ongoing point‑source discharge |
| RCRA §6972 claim (imminent and substantial endangerment) | Residual petroleum, BTEX detections, ecological screening exceedances, and fumes may present present threat | Plaintiffs offer only equivocal evidence (smell, past observations); no proof of imminent substantial endangerment at filing | Dismissed: Plaintiffs failed to show the required present imminent and substantial endangerment under RCRA |
| State tort claims: wantonness, trespass, emotional distress | Failure to retrofit 1979 repair to modern standards shows conscious disregard / intentional invasion; exposure supports emotional distress | No law requires retroactive re‑repair; no evidence Defendants knew 1979 repair was unsafe or acted intentionally; Plaintiff Upton not in zone of danger nor showing malice | Wantonness and trespass dismissed; emotional distress damages dismissed; negligence and nuisance remain for trial |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping for expert reliability under Rule 702)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert applies to all expert testimony, not just scientific)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (CWA citizen suits require continuous or intermittent violations to confer jurisdiction)
- Atlantic States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990) (proof of ongoing noncompliance required at summary judgment to seek civil penalties)
- Upstate Forever v. Kinder Morgan Energy P'ships, L.P., 887 F.3d 637 (4th Cir. 2018) (Fourth Circuit held migrating petroleum can support an ongoing violation; court here disagreed with that application to CWA)
- Hamker v. Diamond Shamrock Chem. Co., 756 F.2d 392 (5th Cir. 1985) (migration of residual contamination from a past point‑source discharge does not create a continuous discharge under the CWA)
- Metro‑North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997) (exposure to a latent carcinogen without immediate harm does not support negligent infliction of emotional distress)
- Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) (RCRA governs hazardous waste disposal and §6972 allows suits for past conduct that presents a present threat)