Day LLC et al v. Plantation Pipe Line Company et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 6/4/2018. (PSM)
2018 Jun-04 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAY, LLC, et al.,
PLANTATION PIPE LINE
COMPANY, et al.,
MEMORANDUM OF OPINION
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,
Page 1 of 56
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.
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 fullencirclement, 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
Page 2 of 56
circumference of the pipe, and the affected area. The circumferential ends of the Bsleeve 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 9899.) 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
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.
Page 3 of 56
(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”)
Page 4 of 56
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 Bsleeve. 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,
Page 5 of 56
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
Page 6 of 56
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
Page 7 of 56
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
(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
(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
Page 8 of 56
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
(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
(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.
Page 9 of 56
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.
Page 10 of 56
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?
Q: Have you done any testing to determine that?
A: Only the testing for the BTEX constituents.
A: And what I saw and smelled at the site.
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
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
Page 11 of 56
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
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
Page 12 of 56
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
Page 13 of 56
inquiry, the more likely the testimony should be excluded as
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.
Page 14 of 56
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
admits he is not qualified to testify on whether the repair was properly performed:
Q. Okay. Let me get back to sort of just general questions. Do you
have any opinions, Mr. Sulkin, regarding the cause of this release?
A. Not independently, but I have read and discussed with the parties.
So I know the cause was a leak, a broken piece of pipe that had
previously been repaired.
Q. Right, okay. But you don’t have any expertise in pipeline releases
or cracks or things of that nature –
A. No. Just like I said –
Q. -- that could have caused this release?
A. No, nothing –
Q. All you know is what you’ve read -A. And discussed.
Q. -- or discussed or seen in reports?
Page 15 of 56
Q. And so you’re not going to offer any testimony as to defects
concerning the pipeline itself?
A: That’s correct.
(Sulkin Depo. at 88-89.) While Plaintiffs include other portions of Sulkin’s
deposition where he does in fact testify to the defects and causes of the pipeline
leak, he is by his own admission unqualified to testify to this issue. Thus, because
Sulkin is not qualified to testify competently regarding whether there is an ongoing
leak and has not properly supported the methodology by which he reached this
conclusions, his testimony as to that matter is due to be excluded from the Court’s
Defendants seek summary judgment for all of Plaintiffs’ claims except Count
One, Negligence, and Count Five, Nuisance. In addition, Plaintiffs concede that
summary judgment is due to be granted on their claims of gross negligence and
Additionally before the Court is Defendants’ Second Motion to Exclude the Testimony of Barry
Sulkin. (Doc. 81.) As the conclusions Defendants seek to exclude from Barry Sulkin’s expert
report have not been relied upon by Plaintiffs in their Opposition to Summary Judgment,
Defendants’ Second Motion to Exclude is DENIED as MOOT.
Page 16 of 56
strict liability. (Doc. 62 at 3 n.1.) The Court turns to each of Plaintiffs’ remaining
Plaintiffs allege that Defendants’ failure to update the repair of the 1979 Bsleeve according to the newest repair standards constitutes wantonness under
Alabama law. Wantonness is “the conscious doing of some act or the omission of
some duty while knowing of the existing conditions and being conscious that, from
doing or omitting to do an act, injury will likely or probably result.” Ex parte Essary,
992 So.2d 5, 9 (Ala. 2007) (citing Bozeman v. Cent. Bank of the South, 646 So.2d 601
Because Plaintiffs’ only claim for punitive damages necessarily relies on the survival of their
wantonness claim, which is due to be dismissed, their claim for punitive damages is also due to be
dismissed. Plaintiffs point out that in Lewis v. Kinder Morgan Energy Partners, L.P, which dealt
with a similar suit against Defendants for a leak in their pipeline, the district court recently
denied summary judgment for plaintiffs’ punitive damages claim. No. CV 8:15-4792-HMH, 2017
WL 1541857, at *5 (D.S.C. Apr. 28, 2017). However, Lewis does not contain any convincing
analysis that allows the Court to compare the facts before it with those that led the court in Lewis
to deny summary judgment on this damages theory. In fact, Lewis merely states in regards to
Viewing the facts in the light most favorable to the Plaintiffs, there is sufficient
evidence on which a jury could find that the Defendants acted willfully, wantonly,
or recklessly with respect to the 1990 sleeve repair and maintenance and
management of the Pipeline.
Id. Lewis contains no analysis additional to the quotation above, nor does it identify what evidence
allowed it to make its conclusion that summary judgment should be denied in regards to the
punitive damages claim. Given that its holding is in no way binding on this Court, and its
reasoning is not applicable to this case, Lewis does not help the Plaintiffs’ argument.
Page 17 of 56
(Ala. 1994) (emphasis in original)). While negligence is characterized as “the
inadvertent omission of duty,” wanton misconduct is characterized by the state of
mind of consciously taking an action with knowledge that “the doing or not doing
of [the act] will likely result in injury. . . .” Id. (quoting Tolbert v. Tolbert, 903 So.2d
103, 114–15 (Ala. 2004)). “Wantonness is a question of fact for the jury, unless
there is a total lack of evidence from which the jury could reasonably infer
wantonness.” Cash v. Caldwell, 603 So.2d 1001, 1003 (Ala. 1992).
Plaintiffs’ argument in favor of wantonness is in essence that the efforts that
Plantation took in 1979 to repair the dent in the pipeline would not be the same
repairs that Defendants would have taken in 2014, and because Defendants knew
that they would have made different repairs had the dent occurred in 2014, they
knew that their failure to re-repair the dented pipeline would likely cause injury to
the Plaintiffs. Plaintiffs read a requirement into the applicable regulations and
standards for Defendants to continuously update past, permanent repairs to their
pipeline according to the newest standards. But no statute, regulation, or internal
procedure manual requires the Defendants to do so. The parties agree that the
standards for pipeline repair in a High Consequence Area (“HCA”) are controlled
by the current version of 49 C.F.R. 195.452, the Defendants’ IMP, and the
Page 18 of 56
American Society of Mechanical Engineers (“ASME”) Code B31.4. ASME B31.4,
titled “Pipeline Transportation Systems for Liquid Hydrocarbons and Other
Liquids,” is explicitly incorporated into the standards of 49 C.F.R. 195.452. See 49
C.F.R. § 195.3. Neither the current version of ASME B31.4, nor the applicable
version in 1979, require that a dent, such as the dent discovered in Defendants’
pipeline in 1979, would be filled with epoxy filler before the application of a Bsleeve. The current version of ASME B31.4 additionally provides that, “This
Code shall not be retroactive, or construed as applying to piping systems installed
before date of issuance shown on document title page.” (Caligiuri Report at 16.) On
the other hand, the Defendants’ current IMP requires that a dent repaired with a
B-sleeve have the hardened epoxy filler placed in the dent before the B-sleeve is
welded on. No such requirement existed in 1979.
Defendants’ expert Caligiuri states that the 1974 version of ASME B31.4,
which was applicable when Plantation discovered the dent in 1979, would not
require the use of epoxy filler between the dent and the B-sleeve. Plaintiffs suggest
that because Defendants did not re-repair the 1979 B-sleeve according to the
newest standards, that it was per se unsafe. Defendants have offered testimony that
the B-sleeve repair made in 1979 is classified as a “permanent” repair, which
Page 19 of 56
means that “once it’s in, . . . you don’t need to be concerned about it anymore, . . .
as opposed to a temporary repair where you need to go back and investigate it
continuously.” (Caligiuri Depo. at 160.) As the Defendants understood it, there
was no need to re-repair the B-sleeve because it was meant as a permanent fix. It
could be that the new repair methods were introduced because they were cheaper,
or easier to perform, and not necessarily because they are safer. Simply arguing that
the 1979 B-sleeve repair is not the method that Defendants would use now does not
show wanton behavior, without showing that the Defendants knew that the 1979 Bsleeve repair was unsafe. While newer repairs may not use the same method of
repair, Plaintiffs have not shown any law, regulation, standard, or guideline that
requires Defendants to retroactively alter a B-sleeve repair. Plaintiffs’ wantonness
claim is therefore due to be dismissed.
Plaintiffs additionally assert that the incident surrounding the leak of
gasoline from Defendants’ pipeline into Plaintiffs’ property constitutes trespass
under Alabama law. “In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d
94 (1974), [the Alabama Supreme] Court held that an indirect trespass occurs
Page 20 of 56
where the trespasser releases a ‘foreign polluting matter’ beyond the boundaries of
his property, knowing to a ‘substantial certainty’ that it will invade the property.”
Russell Corp. v. Sullivan, 790 So. 2d 940, 946-47 (Ala. 2001). In order to establish
an indirect trespass, a plaintiff must prove:
1) an invasion affecting an interest in the exclusive possession of his
property; 2) an intentional doing of the act which results in the
invasion; 3) reasonable foreseeability that the act done could result in
an invasion of plaintiff’s possessory interest; and 4) substantial
damages to the res.
W. T. Ratliff Co., Inc. v. Henley, 405 So. 2d 141, 145 (Ala. 1981) (quoting Borland v.
Sanders Lead Co., Inc., 369 So. 2d 523, 529 (1979)).
Plaintiffs are unable to show trespass by the Defendants’ release of gasoline
from their pipeline because they are unable to show that Defendants intentionally
did the act which resulted in the invasion of Plaintiffs’ property. Plaintiffs re-raise
their argument in favor of intentionality that they asserted in their wantonness
section above, i.e., that Defendants’ failure to re-repair the B-sleeve according to
Defendants’ current IMP procedure renders the eventual leak and release of
gasoline “intentional.” (Doc. 62 at 15 (“Thus, [the] same evidence warranting the
denial of summary judgment on Plaintiffs’ wantonness claims also supports the
Page 21 of 56
denial of Plaintiffs’ trespass claims.”). But, as stated in the Court’s analysis of
Plaintiff’s wantonness claims supra, such a theory is unconvincing.
The only additional argument raised against summary judgment for trespass
is the rather unremarkable statement that “[p]ipeline ruptures happen every day
around the State of Alabama” and that Defendant Plantation has had previous
spills in the same county where the spill on Plaintiff’s property occurred. Plaintiffs
present no evidence that these spills were in any way similar to the spill that
affected their property, or that would show knowledge that the Court could impute
“intentionality” to the Defendants’ omission. Therefore, summary judgment is
due to be granted in favor of Defendants on Plaintiffs’ trespass claim.
C. EMOTIONAL DAMAGES
Plaintiff Upton argues that he is entitled to emotional distress damages for
Defendants’ negligence in allowing the gasoline to leak onto his property. As
Defendants have not moved for summary judgement on Plaintiffs’ negligence
claim, but have moved for summary judgment on emotional distress damages under
a negligence theory, the Court addresses whether Plaintiff Upton can recover
emotional distress damages. To show entitlement for emotional distress damages in
Alabama, a plaintiff must show that he either “sustain[ed] a physical injury as a
Page 22 of 56
result of a defendant’s negligent conduct, or [was] placed in immediate risk of
physical harm by that conduct.” City of Mobile v. Taylor, 938 So. 2d 407, 410 (Ala.
Civ. App. 2005) (quoting Wal–Mart Stores, Inc. v. Bowers, 752 So.2d 1201, 1203
AALAR, Ltd. v. Francis demonstrates the operation of the “zone of danger”
test for emotional distress damages where the plaintiff has not suffered a physical
injury as the result of the defendant’s negligent conduct. 716 So.2d 1141 (Ala.
1998). In AALAR, a car rental company had negligently rented out a car that
continued to be listed as stolen on the National Crime Information Center
database. Id. at 1147. The two plaintiffs, a mother and son, were unaware of the
car’s illicit status. Id. A police officer confronted the son while he was in the car
and pointed a gun at the plaintiff as he reached for the glove box to retrieve the
rental agreement. Id. The mother was inside the house when the incident occurred.
Id. at 1148. AALAR held that although the son was in the zone of danger because of
the pistol being pointed at him, the mother was outside the “zone of danger,” as
she was totally unaware of and physically unthreatened by the police officer’s
actions. Id. at 1147-48.
Page 23 of 56
Here, Plaintiff Upton has not shown he was in the “zone of danger.”
Plaintiff Upton admittedly owns the property that was affected by the leak of
gasoline from Defendants’ pipeline, but he has offered no evidence that he was
ever in “immediate risk of physical harm” by Defendants’ negligent conduct.
Plaintiffs argue that Plaintiff Upton “was on the property in the vicinity of
the spill immediately after the rupture in the pipeline, while the gasoline was
actively flowing into the streams and wetlands.” Plaintiffs’ statement is factually
true, but hardly shows Plaintiff Upton was in the zone of danger given that the
property is 130 acres. During his deposition, Plaintiff Upton stated that his son was
halfway up to Plaintiff Day’s valley when he smelled gas. (K. Upton Depo. at
219.)The son called Plaintiff Upton at work, and he then left work to go to the spot
where the son had smelled gasoline. (Id. at 220.) Both Plaintiff Upton and his son
saw gasoline floating in a creek, and because of the current’s direction determined
it was coming from Defendants’ pipeline. (Id.) Plaintiff Upton then called
Defendant Plantation to alert it of the possibility of the leak and then returned to
complete his shift at work. (Id. at 221-22.) Plaintiff Upton presents additional
testimony that he has seen oil sheens in the creeks and riverbeds, (Id. at 289-90),
Page 24 of 56
and that he was subsequently irritated by the noise and smell from the repairs by
Defendants. (Id. at 261-63.)
Simply seeing gasoline and the awareness of possible gasoline contamination
is not enough to put Plaintiff in the zone of danger caused by Defendants’
negligence. Although there was a gasoline smell and visible gasoline in the creek
when Plaintiff first went to the part of the property near the pipeline, these physical
signs of a leak are not enough for him to be in “immediate risk of physical harm.”
Indeed, after seeing the gasoline in the creek, Plaintiff called Defendants and
returned to his work. If Plaintiff had truly been placed in “immediate risk of
physical harm” and suffered resultant emotional damages therefrom, one would
expect something more than his seemingly lax response to the leak.
Without specifying exactly whether Plaintiff Upton was actually injured by
exposure to gasoline vapors or was simply exposed to the immediate risk of physical
harm under the emotional damages test, Plaintiff Upton also argues that he is
entitled to emotional distress damages because gasoline contains known
carcinogens and the current contamination levels in certain parts of Upton’s
property were above residential risk levels. A search of Alabama state law does not
produce a case directly addressing whether the possibility of inhalation of known
Page 25 of 56
carcinogens can entitle a plaintiff to emotion damages under the zone-of-danger
test. Metro-North Commuter R. Co. v. Buckley offers persuasive interpretation of an
emotional distress claim under the Federal Employers’ Liability Act (“FELA”),
which applied the zone-of-danger test. 521 US 424. In Buckley, a railroad worker
was negligently exposed to carcinogenic asbestos, but did not have any symptoms
from diseases caused by inhalation of asbestos at the time that he brought suit
against his former employer. Id. at 426-27. The Supreme Court addressed whether
plaintiff’s mere exposure to asbestos in the course of his job, and commensurate
increased risk of cancer, would allow him to recover for negligently caused
emotional distress. Buckley answered in the negative. After review of the “zone of
danger” test’s application in common law jurisdictions, Buckley noted that the test
usually required the danger of immediate and traumatic harm, such as in cases of
vehicular collisions or accidents, explosions, assaults, and in one case, x-rays,
where immediate physical harm to the fetus was suspected. Id. at 430-431
(collecting cases). Conversely, looking at the so-called “physical impact”
requirement under FELA, Buckley held that physical contact alone does not
necessarily support emotional damages:
Page 26 of 56
in particular, [the cited common law cases] do not include a contact
that amounts to no more than an exposure—an exposure, such as that
before us, to a substance that poses some future risk of disease and
which contact causes emotional distress only because the worker
learns that he may become ill after a substantial period of time.
Id. at 432. Although it addressed the recovery of emotional damages under FELA,
rather than Alabama common law, Buckley shows that exposure to a substance, be it
gasoline or asbestos, that has a “latent” effect, cannot support a claim for
emotional damages because the plaintiff is not subject to immediate and traumatic
Plaintiffs additionally state Plaintiff Upton was in the zone of danger because
David Chung (“Chung”) said that he and other responders had “risked their
lives” when they went to the site to investigate and clean up the leak on behalf of
Defendants. However, Plaintiffs omit Chung’s subsequent clarification:
Q: Okay. Tell me how your team risked their lives.
A: It’s—you don’t know what you’re—when you’re first walking into
the woods, you don’t know—it’s a figure—you know, were they in
danger, no, but when you’re first walking in, you don’t know what
you’re dealing with at a release; that’s what I mean.
(Chung Depo. at 26.) It appears thus that Chung meant to say that before going to
the affected area there was a possibility that they would be risking their lives, but
Page 27 of 56
did not in fact “risk their lives.” Even if Chung testified that he and his team
“risked their lives” in investigating the leak, Plaintiff Upton was not with or near
Chung during the time Chung first came to the site. Because Plaintiff Upton has
not shown any physical injury nor has he shown any evidence that he was placed in
immediate risk of physical harm by the Defendants’ negligence, he cannot recover
for emotional damages for negligence.
Plaintiffs additionally argue they are entitled for emotional damages in
relation to the nuisance and wantonness claims. As stated above, Plaintiffs’
wantonness claims are without merit, but the Court addresses Plaintiffs’ emotional
damages claims nonetheless as the same standard applies to their nuisance claims,
which are not subject to summary judgment. A plaintiff is entitled to emotional
damages for nuisance and wantonness under Alabama law “if the mental suffering
inflicted is accompanied by malice, insult, inhumanity, or contumely.” Rice v.
Merritt, 549 So. 2d 508, 511 (Ala. Civ. App. 1989) (citing Gregath v. Bates, 359
So.2d 404 (Ala. Civ. App. 1978)).
Plaintiff Upton present no evidence that arises to the level of “malice, insult,
inhumanity, or contumely” sufficient to allow his claim for emotional damages
arising from his nuisance or wantonness claim to continue. He points to a single
Page 28 of 56
exchange during Plaintiff Upton’s deposition as supporting such claims for
Q: In your dealing with [Defendant Plantation] since the release, have
you ever had any unpleasant dealings with anybody?
A: I would say, yes—
Q: Tell me about that.
A: I really can’t remember what it was. It was—I think, basically, he 3
was saying there was no fuel in the water. And obvious as heck, it’s
A: It’s kind of like, you know—and I think he even made the comment
one time, “Well, it looked like somebody poured gasoline in the
creek.” You know, just—and it just, you know, just like so
Q: Just ticked you off?
(K. Upton Depo. at 248-49.) This exchange does not show that “a Plantation
pipeline employee . . . accused [Plaintiff Upton] of pouring gasoline on his own
It is unclear from the deposition testimony who the “he” is that Kent Upton is referring to,
although the Court assumes from the context it was a Plantation employee or contractor.
Page 29 of 56
land” as Plaintiff Upton’s deposition testimony itself states the employee said
“somebody” without any direct accusation. It goes without saying that the above
interaction that Plaintiff Upton did not have any direct effect on him since he states
that he “can’t remember what [the interaction] was.” Even taking the above
evidence in the light most favorable to Plaintiffs, they cannot recover emotional
damages simply because Defendants were at time unprofessional or Plaintiff Upton
was “ticked off.” Thus, Plaintiffs’ claims for emotional damages are due to be
D. CWA CLAIMS
Congress enacted the CWA in 1972 to restore and maintain the “chemical,
physical, and biological integrity of [the] Nation’s waters.” 33 U.S.C. § 1251(a). In
accordance with this purpose, Section 301(a) of the CWA makes unlawful the
discharge of any pollutant into navigable waters except as authorized by specified
sections of the Act. See 33 U.S.C. § 1311(a). To establish a CWA violation,
Plaintiffs must show that: “(1) there has been a discharge; (2) of a pollutant; (3)
into waters of the United States; (4) from a point source; (5) without a NPDES
permit.” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1008 (11th Cir. 2004).
Defendants first argue that Plaintiffs’ CWA violations are due to be dismissed
Page 30 of 56
because there is no “ongoing violation,” which is necessary for this Court to
possess subject matter jurisdiction over citizen-suit CWA violations under 33
U.S.C. § 1365(a), and alternatively because Plaintiffs have not identified a “point
source” where an illegal discharge is occurring. As the Court finds that Plaintiffs
have failed to show proof of an ongoing violation, it lacks subject matter jurisdiction
under § 1365(a) to consider Plaintiffs’ CWA claim.
Under § 1365(a)(1), a citizen may commence a lawsuit in federal court
any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the
eleventh amendment to the Constitution) who is alleged to be in
violation of (A) an effluent standard or limitation under this chapter or
(B) an order issued by the Administrator or a State with respect to
such a standard or limitation . . . .
(emphasis added). Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc.
resolved a circuit split over whether a defendant’s conduct that occurred wholly
prior to the filing of the lawsuit is sufficient to satisfy the “alleged to be in violation
of” language of § 1365(a). 484 U.S. 49, 56 (1987). After extensive analysis of the
language of § 1365(a) and the CWA generally, Gwaltney concluded that § 1365(a)
does not support citizen suits for wholly past violations:
Page 31 of 56
The most natural reading of “to be in violation” is a requirement that
citizen-plaintiffs allege a state of either continuous or intermittent
violation—that is, a reasonable likelihood that a past polluter will
continue to pollute in the future.
Id. at 57. Rather, a plaintiff must show a “continuous or intermittent” violation
under § 1365(a) for a court to possess subject matter jurisdiction.
After addressing this preliminary issue of the type of violation that would
support a CWA citizen suit, Gwaltney then went on to raise a separate issue: the
sufficiency of evidence required to show a “continuous or intermittent” violation
under § 1365(a). The Supreme Court relied on the phrase “alleged to be in
violation” in § 1365(a) as opposed to “in violation” to hold that well-pled
allegations alone are sufficient to support jurisdiction, id. at 64, and a plaintiff is not
required to submit any additional proof at the initiation of the suit. Gwaltney then
appeared to indicate that at the summary judgment stage, a defendant may still
attack the court’s subject-matter jurisdiction by challenging the accuracy of the
jurisdictional facts alleged:
This is not to say, however, that such allegations may not be
challenged. In United States v. SCRAP, 412 U.S. 669, 689, 93 S. Ct.
2405, 2417, 37 L.Ed.2d 254 (1973), we noted that if the plaintiffs’
“allegations [of standing] were in fact untrue, then the [defendants]
should have moved for summary judgment on the standing issue and
demonstrated to the District Court that the allegations were sham and
Page 32 of 56
raised no genuine issue of material fact.” If the defendant fails to make
such a showing after the plaintiff offers evidence to support the allegation,
the case proceeds to trial on the merits, where the plaintiff must prove the
allegations in order to prevail. But the Constitution does not require
that the plaintiff offer this proof as a threshold matter in order to
invoke the District Court’s jurisdiction.
Id. at 65-66 (emphasis added).
The majority then determined that the action should be remanded to the
lower court to find whether the respondents’ complaint “contained a good-faith
allegation of ongoing violation by petitioner.” Id. at 67. The decision to remand to
the lower court to determine “good-faith allegations” was somewhat confusing, as
the appeal had reached the highest court after dismissal at the summary judgment
stage. The instruction to the district court to determine whether there were
allegations of ongoing violations, rather than proof of jurisdictional fact normally
required at summary judgment, appeared to contradict general summary judgment
Concurring in the judgment, Justice Scalia sought to clarify the majority’s
instructions over the evidentiary requirements to prove subject matter jurisdiction
at the summary judgment stage:
There is of course nothing unusual in the proposition that only an
allegation is required to commence a lawsuit. Proof is never required,
Page 33 of 56
and could not practicably be required, at that stage. From this clear
and unexceptionable language of the statute, one of two further
inferences can be made: (1) The inference the Court chooses, that the
requirement for commencing a suit is the same as the requirement for
maintaining it, or (2) the inference that, in order to maintain a suit the
allegations that are required to commence it must, if contested, be
proved. It seems to me that to favor the first inference over the second
is to prefer the eccentric to the routine. It is well ingrained in the law
that subject-matter jurisdiction can be called into question either by
challenging the sufficiency of the allegation or by challenging the
accuracy of the jurisdictional facts alleged. Had Congress intended us
to eliminate the second form of challenge, and to create an
extraordinary regime in which the jurisdictional fact consists of a
good-faith belief, it seems to me it would have delivered those
instructions in more clear fashion than merely specifying how a
lawsuit can be commenced.
Gwaltney, 484 U.S. at 65–66 (Scalia, J., concurring). Subsequently, Atlantic States
Legal Foundation, Inc. v. Tyson Foods, Inc. reiterated Scalia’s concurrence by
requiring factual proof of an ongoing CWA violation at the summary judgment
the showing necessary to maintain a suit for civil penalties must go
beyond mere allegations. Plaintiffs must be able to prove that noncompliance was ongoing at the time they filed suit in order to be able
to later maintain an action for civil penalties.
897 F.2d 1128, 1135 (11th Cir. 1990).
In light of Gwaltney and Tyson Foods, the Court applies the traditional
summary judgment standards to determine whether Plaintiffs properly supported
Page 34 of 56
their claims of a continued or intermittent CWA violation. Plaintiffs first argue that
the “continued presence of petroleum on the Upton’s properties, which is
unequivocal and undisputed, satisfied the ‘ongoing violation’ requirement of [the]
CWA,” although Defendants’ pipeline is no longer leaking. (Doc. 62 at 23.)
The Eleventh Circuit has not directly ruled on what constitutes an ongoing
violation, and two competing interpretations have arisen since Gwaltney. On the
one hand, some courts have taken a broad view of what constitutes an “ongoing”
violation: that the failure to undertake remedial measures to remove the effects of a
wholly past violation of the CWA constitutes an ongoing violation. See Sasser v.
EPA, 990 F.2d 127, 129 (4th Cir. 1993) (“Each day the pollutant remains in the
wetlands without a permit constitutes an additional day of violation.”); City of
Mountain Park v. Lakeside at Ansley, LLC, 560 F. Supp. 2d 1288, 1293 (N.D. Ga.
2008); Informed Citizens United, Inc. v. USX Corp., 36 F. Supp. 2d 375, 377-78
(S.D. Tex. 1999); United States v. Reaves, 923 F. Supp. 1530, 1534 (M.D. Fla. 1996);
North Carolina Wildlife Federation v. Woodbury, No. 87-584-CIV-5, 1989 WL
106517, at *1-2 (E.D.N.C. Apr. 25, 1989).
On the other hand, some cases regard the “wholly past” language in
Gwaltney as directing the inquiry to when the conduct causing the violation
Page 35 of 56
occurred, rather than to whether consequences of that violation have been
remedied. Connecticut Coastal Fishermen’s Association v. Remington Arms Co., 989
F.2d 1305 (2d Cir. 1993) (“The present violation requirement of the [CWA] would
be completely undermined if a violation included the mere decomposition of
pollutants.”); Coon v. Willet Dairy, LP, Nos. 5:02-CV-1195 and 5:04-CV-917, 2007
WL 2071746, at *2-3, 2007 U.S. Dist. LEXIS 51718, at *6 (N.D.N.Y. July 17, 2007)
(dismissing CWA claims because the defendant had entered into a consent order
with the state environmental agency prior to the lawsuit, and the plaintiffs
presented no evidence that the violation was ongoing or likely to recur); Aiello v.
Town of Brookhaven, 136 F.Supp.2d 81, 120 (E.D.N.Y. 2001) (holding CWA does
not allow citizen suit against a past polluter “for the ongoing migrating leachate
plume”); Wilson v. Amoco Corp., 33 F.Supp.2d 969, 975-76 (D. Wy. 1998)
(“migration of residual contamination from previous releases does not constitute
an ongoing discharge, and that to so hold would undermine the CWA’s limitations
as set forth in the statute’s definition of point source and the Supreme Court’s
holding in Gwaltney.”); Friends of Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp.
1333, 1354 (D.N.M. 1995) (“Migration of residual contamination resulting from
previous releases is not an ongoing discharge within the meaning of the [CWA].”).
Page 36 of 56
Plaintiffs cite City of Mountain Park v. Lakeside at Ansley, LLC, for the
proposition that the Defendants’ failure to remove the previously discharged
petroleum constitutes a “continuing violation” under the CWA. 560 F. Supp. 2d
1288, 1293 (N.D. Ga. 2008). However, Mountain Park hurts Plaintiff’s position, as
after presenting the two conflicting interpretations to the meaning of “continuous
violation,” Mountain Park sought to explain the disparate approaches:
[T]he primary factor that influenced the court to adopt the [broad]
approach was the nature of the alleged pollution in this case-deposited sediment and fill material. Unlike discharges of a leachate
plume, or petroleum products, the fill materials at issue in this case do not
significantly dissipate or dissolve over time. Instead, these fill materials,
when discharged into a system such as the plaintiff’s lakes, stay intact
over time and thus continue to have roughly the same net polluting
effect years or even decades after the time of their deposit.
This distinction seems to be borne out by the relevant caselaw.
The majority of cases dealing with fill materials appear to adopt the
[broad] approach of deeming the pollution “ongoing” as long as the
polluting fill material remains in the water. In contrast, most of the
decisions taking the stricter interpretation of “wholly past” violations
. . . have involved pollutants other than fill materials.
Mountain Park, 560 F.Supp.2d at 1293 (emphasis added) (citations omitted).
Mountain Park thus bases its conclusion of an ongoing violation on the nature of the
pollution. Had the fill materials in Mountain Park been petroleum products—as in
this action—the court seemed to indicate it would not find an ongoing violation
Page 37 of 56
based purely on the presence of the petroleum without a continuing or intermittent
discharge from a point source.
Following the conclusion of the briefing period for Defendants’ Motion for
Partial Summary Judgment, Plaintiffs sought and were granted leave to file
additional authority for their argument that Defendants’ pipeline leak constitutes
an ongoing violation. (See Docs. 84 & 86.) Plaintiffs informed the Court that on
April 12, 2018, the United States Court of Appeals for the Fourth Circuit issued a
published opinion in the case styled, Upstate Forever v. Kinder Morgan Energy
Partners, L.P., No. 17-1640, 2018 WL 1748154, at *1 (4th Cir. Apr. 12, 2018).
Upstate Forever reversed a district court decision that there was no ongoing
violation where a pipeline had ceased leaking, but petroleum product from that
pipeline continued to move in a plume to “navigable waters.” Id. Although Upstate
Forever includes pertinent analysis to § 1365(a), the Court ultimately disagrees with
the majority’s conclusion that a wholly past discharge can constitute an ongoing
violation of the CWA.
The majority begins, like this Court, in recounting Gwaltney’s guidance that
the phrase “to be in violation” in § 1365(a) only authorizes suits for “prospective
relief.” Upstate Forever, 2018 WL 1748154, at *5. Upstate Forever then goes on to
Page 38 of 56
interpret the “ongoing violation” jurisdictional language of § 1365(a) in light of the
identical language in the civil suit provision of the RCRA, 42 U.S.C. § 6972, as
interpreted in Goldfarb v. Mayor of Baltimore, 791 F.3d 500 (4th Cir. 2015). The
Fourth Circuit in Goldfarb v. Mayor of Baltimore, held that there was an ongoing
violation of the RCRA where the City of Baltimore had stored hazardous chemicals
that had leaked from the point of storage and continued to migrate through the soil.
Goldfarb rejected the argument that the violation was wholly past, stating that
“although a defendant’s conduct that is causing a violation may have ceased in the
past . . . what is relevant is that the violation is continuous or ongoing.” See id. at
511–13. Goldfarb did not specify which violation was continuous or ongoing, it stated
The foregoing paragraphs in the Complaint [contained at pages 32-34
of the Appendix] assert specific, identifiable actions attributed to the
City that allegedly violated RCRA-based mandates, have gone
uncorrected, and continue unabated such that the City is still “in
violation of” those mandates. . . . In the case at bar, some of the City’s
alleged actions occurred in the past and some are ongoing, but the
purported violations of “any permit, standard, regulation, condition,
requirement, prohibition, or order” promulgated under RCRA are
alleged to be “ongoing.”
Id. at 513. At least some of the RCRA violations alleged in the plaintiffs’ complaint
in Goldfarb, however, could occur where the conduct was wholly in the past.
Page 39 of 56
It is correct to state, as Goldfarb did, that past conduct can support an
“ongoing violation” of the RCRA—because the citizen-suit provision of the RCRA
under § 6972(a)(1)(A) looks to whether the defendant is “alleged to be in violation
of any permit, standard, regulation, condition, requirement, prohibition, or order.”
Upstate Forever, however, makes a logical jump when it states the conclusion in
Goldfarb of an ongoing violation is “equally applicable” to the CWA. See 2018 WL
1748154, at *5 & n.6 (“We disagree with the dissent’s view that our decision in
Goldfarb is not helpful. We held in Goldfarb under an identical citizen suit provision
that conduct causing a violation need not be ongoing to state a claim, so long as the
violation itself is ongoing.”).
The CWA’s definition of what constitutes a “violation” materially differs
from the RCRA. The CWA requires that there be a discharge of a pollutant into
navigable waters from any point source, 33 U.S.C. § 1362(12)(a)—but makes no
statement qualifying the conduct, i.e., the discharge, by use of “past or present.”
Cessation of conduct, e.g., the discharging of a pollutant, under the CWA means
that there is no longer a violation. On the other hand cessation of conduct does not
necessarily cure a violation of any “permit, standard, regulation, condition,
requirement, prohibition, or order [under the RCRA],” 42 U.S.C. § 6972(a)(1)(A).
Page 40 of 56
Presumably the regulations at issue in Goldfarb could have been violated by past
conduct—although Goldfarb never stated with specificity what regulations the
defendant was alleged to have violated. In that sense, it is incorrect to equate the
“ongoing violation” language of the RCRA and CWA, by improperly importing the
definition of “violation” from the RCRA and using it to determine when CWA
violations can occur.
Gwaltney was clear that a plaintiff’s interest under the CWA is “primarily
forward-looking.” 484 U.S. at 59. A plaintiff “must allege a state of continuous or
intermittent violation,” said plainly that “a past polluter [which is what Defendant
appears to be] will continue to pollute in the future.” Id. at 57. The inescapable
“prospective orientation” of the phrase “in violation” is mirrored by the relief the
CWA affords plaintiffs suing under the citizen-suit provision, which does not give
citizen-plaintiffs the right to damages. See id. at 61-62 (Section 1365 of the CWA is
“wholly injunctive in nature”); City of Evansville v. Kentucky Liquid Recycling, Inc.,
604 F.2d 1008, 1014 (7th Cir. 1979). Any injunction to cease the CWA violation in
this action, i.e., the point source discharge, would be superfluous because
Defendants’ pipeline has not leaked since 2014—two years before the initiation of
Page 41 of 56
Upstate Forever alternatively attempts to ground its interpretation of
“ongoing violation” in the definition of “discharge of a pollutant” by stating that it
“does not place temporal conditions on the discharge of a pollutant from a point
source.” 2018 WL 1748154, at *6. There is an obvious lack of temporal
specification in the phrase, but the word “discharge” itself is rather clear—
Defendants are either discharging pollutants from a point source or they are not.
The Upstate Forever majority states attempts to stretch the definition by reliance on
the so-called “indirect discharge” theory. Id. An indirect discharge occurs when a
pollutant is discharged from a point source to a locus that is not a “navigable
water.” The pollutant then reaches navigable waters by means of groundwater flow
or some other natural means pushing the pollutant through “intervening
conduits.” There is substantial support for an indirect discharge theory, but the
courts adopting such a theory do so in a context where the point source itself is
continuing to discharge or it intermittently discharging. See Rapanos v. United
States, 547 U.S. 715, 743 (2006) (plurality); Hawai’i Wildlife Fund v. Cty. of Maui,
886 F.3d 737, 742 (9th Cir. 2018). Even under the indirect discharge theory, the
Court still has no jurisdiction over Plaintiffs’ CWA claim because at the time of the
Page 42 of 56
suit there was no continuous or intermittent discharge from a point source,
regardless of how the pollutant reached navigable waters.
The Fifth Circuit likewise addressed the definition of “point source” in
Hamker v. Diamond Shamrock Chemical Co., which dealt with the plaintiffs’
allegations that defendants’ pipeline leaked onto their property, although
defendants fixed the leak by the beginning of the suit. 756 F.2d 392, 394 (5th Cir.
1985). Like in both Upstate Forever and this action, in Hamker “[n]o continuing
addition to the ground water from a point source is alleged . . . . Rather, the
complaint alleges, necessarily, only that there are continuing effects from the past
discharge.” Id. at 397 (emphasis added). Hamker rejected the arguments that
Plaintiffs raise here concerning the effects from a wholly past discharge, and that
the single “discharge” of oil from a pipeline does not create a continuing discharge
regardless of the residual effects of that discharge.
An “ongoing violation” is one where this is “either continuous or
intermittent violation-that is, a reasonable likelihood that a past polluter will
continue to pollute in the future.” Tyson Foods, 897 F.2d at 1133 (quoting Gwaltney,
484 U.S. at 57.) Justice Scalia’s concurrence in Gwaltney strongly indicates that the
Page 43 of 56
causes of the violation, not the lingering effects, should be used to determine
whether there is an ongoing violation:
When a company has violated an effluent standard or limitation, it
remains, for purposes of [§ 1365(a)] , “in violation” of that standard
or limitation so long as it has not put in place remedial measures that
clearly eliminate the cause of the violation.
Gwaltney, 484 U.S. at 69 (Scalia, J., concurring). Here the cause of the CWA
violation is tied to the leak of the Defendants’ pipeline. Defendants have submitted
a great amount of evidence that they have repaired the pipeline. Plaintiffs on the
other hand offered solely the testimony of their expert Sulkin for the conclusion
that the pipeline continues to leak, but as shown above, his testimony to that effect
is due to be struck as unreliable under Daubert. There is no other indication that
Defendants’ pipeline was leaking at the time of the filing of this action. While some
effects remain from the leak, at the time of Plaintiffs’ filing there was not point
source discharge, nor was there any “reasonable likelihood” of future point source
discharge from Defendants’ pipeline. The violation is therefore not “ongoing.”
Plaintiffs include new allegations in their Response in Opposition to
Summary Judgment that Defendants “fail[ed] to address the unlawful dumping of
dredge and fill waste into the streams and wetlands on the Upton’s lands. Each day
Page 44 of 56
the dredge and fill waste is allowed to remain in the water . . . is a daily and ongoing
violation of the CWA. (Doc. 62 at 25.) Plaintiffs made no allegations concerning
unlawful dredging and filling of waste products in their Complaint, and cannot raise
this issue for the first time in opposition to summary judgment. Plaintiffs have
failed to support their allegations of an ongoing violation with facts properly
admissible at trial. The Court thus lacks jurisdiction under § 1365(a) to adjudicate
their claims of CWA violations. 4
Plaintiffs additionally make arguments about ongoing “point source” discharges from the
movement of gasoline constituents throughout their property based on a flawed interpretation of
Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004). Parker is factually distinct
from this action because the pollutants at issue there were piles of debris and metal construction
equipment that continued to discharge new pollutants after the objects were placed there by the
defendants. Id. at 1009 (“Storm-water runoff does not, in all circumstances, originate from a
point source, but several courts have concluded that it does when storm water collects in piles of
industrial debris and eventually enters navigable waters.”). The continuing presence of the debris
and construction equipment served as “discernible, confined and discrete conveyance” from
which pollutants were discharged. In this action, even construing the term “point source”
“broadly,” there is no point source discharge following the initial leak in the Defendants’
pipeline. While the Eleventh Circuit has not squarely addressed whether the migration of
pollutants through soil and groundwater is a point source discharge, other circuits have. See
Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1141 n.4 (10th Cir. 2005), as corrected (Oct.
21, 2005). In defining a nonpoint source discharge, in contrast to a point source discharge, Sierra
Nonpoint source pollution is not statutorily defined, although it is commonly
understood to be pollution arising from dispersed activities over large areas that is
not traceable to a single, identifiable source or conveyance. Groundwater seepage
that travels through fractured rock would be nonpoint source pollution, which is not
subject to NPDES permitting.
Page 45 of 56
It must be emphasized that the conclusion that there is no ongoing CWA
violation, because there is no ongoing discharge from a point source, does not
necessarily absolve past violators from any and all liability for their acts. The CWA
citizen-suit provision is part of the bulwark against the spread of pollution harmful
to the environment, but it is not the only protection—nor should it be the chief. See
Gwaltney, 484 U.S. at 60 (“the citizen suit is meant to supplement rather than to
supplant governmental action.”). Other state and federal laws provide a latticework
of responsibilities and liability for past and present conduct, including the RCRA,
the Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”) 42 U.S.C. § 9601 et seq., enforcement activities by ADEM, and
Alabama tort law.
It is undisputed that Defendants have worked with ADEM over years to
remediate and improve the conditions caused by the release of gasoline from their
pipeline. Plaintiffs’ argument seeks to wield the citizen-suit provision of the CWA
as a hammer to address any and all effects of the pipeline leak rather than the fine
scalpel that it is, “chang[ing] the nature of the citizens’ role from interstitial to
Id. (emphasis added) (citation omitted). In this action, the leaked petroleum is traceable to a
point source, i.e., the pipeline. But after its release from the pipeline, the movement of the
gasoline through fractured rock does not create a new point source.
Page 46 of 56
potentially intrusive.” Gwaltney, 484 U.S. at 61. Gwaltney in part premised its
interpretation that § 1365 does not support citizen suits for wholly past violations
on fears of private action overtaking regulators’ primary role:
Th[e] danger [of undermining the supplementary role of citizen suits]
is best illustrated by an example. Suppose that the Administrator
identified a violator of the Act and issued a compliance order under
§ 309(a). Suppose further that the Administrator agreed not to assess
or otherwise seek civil penalties on the condition that the violator take
some extreme corrective action, such as to install particularly effective
but expensive machinery, that it otherwise would not be obliged to
take. If citizens could file suit, months or years later, in order to seek
the civil penalties that the Administrator chose to forgo, then the
Administrator’s discretion to enforce the Act in the public interest
would be curtailed considerably. The same might be said of the
discretion of state enforcement authorities. . . .We cannot agree that
Congress intended such a result.
Id. at 60-61. Defendants’ discharge ceased in 2014, days after it was discovered.
Defendants then worked with ADEM and the EPA over two years to remediate the
site to their specifications. Plaintiffs’ CWA claim intrudes on these regulators’
authority, and seeks to redress a wrong already righted under the CWA. It is
therefore due to be dismissed for lack of jurisdiction.
Defendants additionally move for summary judgment on Plaintiffs’ claim
under the RCRA. 42 U.S.C. § 6901, et seq. The “RCRA is a comprehensive
Page 47 of 56
environmental statute that governs the treatment, storage, and disposal of solid and
hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citation
omitted). The citizen suit provision of the RCRA provides in pertinent part that
“any person may commence a civil action on his own behalf” against “any person
. . . who has contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste
which may present an imminent and substantial endangerment to health or the
environment.” 42 U.S.C. § 6972(a)(1)(B). “The section applies retroactively to
past violations, so long as those violations are a present threat to health or the
environment.” Parker, 386 F.3d at 1014 (citing Meghrig, 516 U.S. at 485–86 (1996)).
The “present threat” language of § 6972(a)(1)(B) directs the Court to inquire as to
the state of the endangerment at the time of the action’s filing.
Defendants argue only that the leakage of gasoline from their pipeline “may
not constitute an imminent and substantial endangerment to health or the
environment” under § 6972(a)(1)(B). (Doc. 55 at 31.) The Eleventh Circuit has
characterized the language of § 6972(a)(1)(B) as “expansive,” “confer[ring] upon
the courts the authority to grant affirmative equitable relief to the extent necessary
to eliminate any risk posed by toxic wastes.” Parker, 386 F.3d at 1015 (emphasis in
Page 48 of 56
original) (quoting United States v. Price, 688 F.2d 204, 213–14 (3d Cir. 1982)). As
the “operative word in the statute is the word ‘may,’” a plaintiff “need only
demonstrate that the waste disposed of “may present” an imminent and
substantial threat. Id. Thus while the endangerment must be imminent, that is
“threatening to occur immediately,” there must only be the potential for an
imminent threat. Id. (citing Meghrig, 516 U.S. at 486). An endangerment is
“substantial” if it creates a threat of “serious harm to the environment or health.”
Id. (citing Cox v. City of Dallas, 256 F.3d 281, 300 (5th Cir. 2001)).
Plaintiffs first attempt to show an imminent and substantial threat to human
health by reference to statements made by David Chung (“Chung”) about certain
testing on the eastern side of Double Mountain. Chung performed exploration
excavations at the Shelby County water pipeline to determine whether it was in
contact with gasoline, (Chung Depo. at 83), as gasoline could damage the seals
between pipe sections if they were improperly installed. (Id. at 84.) However,
Chung did not testify to the presence of any gasoline in the exploratory excavation
sites. (See id. at 83-85.) Plaintiffs’ argument, reduced to its barest form, invites the
Court to find an RCRA violation where there is a mere possibility that if the seals
between water lines were improperly installed and gasoline was shown to be
Page 49 of 56
present, there would be an imminent and substantial threat. Given that Plaintiffs
have not offered proof of either of these conditions, both of which are necessary to
disrupt the integrity of the water line, this theory does not satisfy § 6972(a)(1)(B).
Plaintiffs next offer deposition testimony of Chung, Sulkin, and Grant Upton
concerning the noxious fumes created by the gasoline after its release. Plaintiffs
again cite to Chung’s statement about “risking his life,” and that the workers
“needed to wear respirators”; however, these statements appear to be in reference
to the time during the initial release, not at the time of the suit two years later. (See
Chung Depo. at 26-27.) Grant Upton testified that on the day the release was
discovered his “eyes were dry.” (G. Upton Depo. at 44.) Such a minor reaction
does not show substantial endangerment, and certainly not at the time of suit.
Finally, Sulkin testified that inhalation of gasoline fumes can cause “drowsiness,
headaches, and even unconsciousness,” but had done no testing of the air quality
on the Plaintiffs’ property. Instead, he stated that he smelled a stronger gasoline
smell than at a gasoline station, and believed that the smell would indicate high
enough concentrations to cause harm to human health. (Sulkin Depo. at 177-78.)
Sulkin based his statements on the adverse effects of gasoline inhalation on “EPA
documentation,” but admitted that he does not know at what levels such adverse
Page 50 of 56
effects manifest. His “smell test” methodology is in no way tied to the EPA
documentation that he refers to, but instead is his speculation that a strong gasoline
smell will cause those effects. Sulkin’s testimony does not show an imminent and
substantial endangerment to human health.
While Plaintiffs have failed to show that the pipeline’s release may cause an
imminent and substantial endangerment to human health, whether the release
poses such a risk to the “environment” is a closer question. No binding precedent
has adequately discussed whether the presence of certain levels of gasoline presents
an imminent and substantial endangerment to the environment.
Plaintiffs present as additional evidence deposition testimony to show that
the Defendants’ pipeline’s leak “may present an imminent and substantial
endangerment to . . . the environment.” They first state that “it remains
undisputed the soil, surface water, groundwater, and wetlands on the Upton’s
property is contaminated with petroleum, toluene, benzene, and BTEX. (Doc. 62
at 29.) They cite as support statements made by Chung during his deposition on his
initial findings during the discovery of the leak in 2014—obviously this testimony
has no bearing on what the situation in Plaintiffs’ property was in 2016 at the time
of the suit after significant efforts by Defendants to remediate the property. (See
Page 51 of 56
Chung Depo at 9, 25.) Plaintiffs also quote Defendants’ expert Steven C. Hart
(“Hart”)’s deposition, where he was asked about his expert report “concerning
the presence of groundwater (including seeps/springs) and surface water
conditions associated with a release of gasoline from [Defendants’] pipeline.”
(Doc. 55-37 at 3.) Hart concludes that there is “[A] small area of groundwater
impact . . . present in the northeastern corner of the Defendants’ property from the
[Defendants’] release.” (Doc. 55-37 at 3; see Hart Depo. at 100.) Hart explained
that “groundwater impact” means “groundwater with dissolved phase or it could
be free phase contamination from the [Defendants’] release that is above the MCL
[EPA maximum contaminant levels].” (Hart Depo. at 100.) CH2M likewise has
concluded in their Comprehensive Site Assessment that as of February 2016, “at
least one BTEX constituent concentration exceeded the EPA Region 4 freshwater
ecological screening level for chronic exposure at nine locations.” (Doc. 55-11 at
27.) Plaintiffs, however, never attempt to explain what the applicable standards
mean or how they apply to the RCRA, and the Court declines to make Plaintiffs’
arguments for them. Nor do Plaintiffs elaborate or show how groundwater impacts
creates substantial endangerment to health or the environment. They cite to the
deposition of Defendants’ expert Jerry Aycock (“Aycock”) for the proposition that
Page 52 of 56
“[p]etroleum and its constituent parts are known to be harmful to the
environment.” (Doc. 62 at 29.) However, the cited portion of Aycock’s deposition
has no bearing on Hart’s conclusion that the groundwater impact was above the
MCL in part of Plaintiffs’ property:
Q: . . . Generally speaking, when you have a release of gasoline into the
environment, it has a harmful effect?
Q: And leaking gasoline can represent a health risk to the public?
Q: It can harm property? Leaking gasoline
A: Depends on the situation. I don’t know how you harm property. It
contaminates soil and groundwater and potentially surface water.
So it may have an effect on the—on the use of the property. So,
therefore, that would be the case. But just because you put gasoline
into soil doesn’t harm the property. It just contaminates the soil.
Q: So contaminated soil is not the same as harm to property?
A: There—there are literally millions, if not billions, of properties that
are contaminated that are actually bought at a premium price,
developed, and used without harm.
So I would have to say, as an environmental professional, that
even though that property is contaminated, it’s not harmed.
Page 53 of 56
(Aycock Depo. at 40-41.) Plaintiffs additionally cite to the presence of “red orange
flocculent” in the Defendants’ properties, but do not explain how that is harmful.
In fact, in Harm’s expert report, he explains that “iron precipitate” can occur in
areas near a release and then migrate to other areas not necessarily impacted by a
release. (Doc. 55-37 at 15-16.) In any case, the presence of red orange flocculent
does not show substantial endangerment.
Plaintiffs then state that “[p]etroleum continues to seep out of the earth
from at least 23 different locations on the [Plaintiffs’] property.” They cite to
Sulkin’s deposition for this statement, but Sulkin does not make any findings or
conclusions to such at the cited page number, and after thorough search the Court
is unsure on what Plaintiffs base this statement. At one point during his deposition,
Sulkin refers to “23 seeps,” but from the context he did not mean that petroleum
was seeping out of the ground. (Sulkin Depo. 390:5-6 “I don’t know where the 23
seeps are they plan to monitor.”). Rather a seep is just a point where groundwater
reaches the surface. (See Doc. 55-11 at 27 (“[Petroleum] produce has not been
observed in springs or seeps since late March 2015.”). Plaintiffs additionally cite to
Chung’s deposition for their proposition, but the page number they cite does not
support their argument that there is an active petroleum leak or there are twentyPage 54 of 56
three different locations identified that have active leaks. (See Doc. 62 at 25 (citing
Chung Depo. at 155).)
Finally, Plaintiffs refer to deposition testimony by Grant Upton and Sulkin
concerning dead wildlife they saw on the Plaintiffs’ property. However, Grant
Upton’s statement that he saw 2-3 dead frogs, a dead lizard, and some dead fish on
the day that he discovered the release is hardly helpful to whether the status of the
release when Plaintiffs filed suit in 2016 may have presented an imminent and
substantial endangerment. The additionally cited testimony by Grant Upton and
Sulkin are all hearsay statements concerning what Grant was told about the lack of
woodland ducks that formerly inhabited the property by his father or what Sulkin
was told about the presence of different animals to include in his expert report. The
supposed impacts to wildlife is contradicted by Grant Upton’s additional testimony
that he continues to hunt deer and turkey on the property, and takes third parties to
hunt there as well. (G. Upton Depo. at 91-93; 113.) Plaintiffs have presented no
other evidence sufficient to show an RCRA violation, and this claim is due to be
Page 55 of 56
For the reasons stated above, Defendants’ Motion for Partial Summary
Judgment is granted; their Motion to Exclude Testimony of Barry Sulkin is due to
be granted; and their Second Motion to Exclude is due to be denied as moot.
Plaintiffs’ negligence and nuisance claims remain pending as Defendants have
made no argument in regard to either claim. A separate Order consistent with the
Opinion will be entered separately.
DONE and ORDERED on June 4, 2018.
L. Scott Coogler
United States District Judge
Page 56 of 56
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?