The opinion of the court was delivered by: Herndon, District Judge
Pending before the Court is Defendant Apex Oil Company, Inc.'s ("Apex Oil") motion in limine to preclude and strike testimony and report of Theresa A. Gustafson. (Doc. 85.) For the reasons set forth below, the Court denies Apex Oil's motion. (Doc. 85.)
Defendant Apex Oil is a successor-by-merger to corporate entities - both named Clark Oil and Refining Corporation - that owned and operated a refinery and associated pipelines and sewers in Hartford, Illinois (the "refinery"). On April 5, 2005, the United States filed a complaint against Apex Oil alleging that there were multiple leaks of petroleum in the pipelines running from the refinery and that eventually the leaks resulted in contaminated groundwater and dangerous levels of vapor-phase hydrocarbons in the soil and the air. This subsurface hyrdocarbon contamination, the United States alleged, may present an imminent and substantial endangerment to health or the environment and, therefore, injunctive relief pursuant to theResource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973(a) to abate the alleged endangerment, is appropriate. Defendant disagrees. Defendant disputes the degree of contamination and the potential endangerment any such contamination might pose to the public or the environment.
A. United States' Motion in Limine to Preclude and Strike Testimony and Report of Theresa A. Gustafson (Doc. 85)
The United States retained Theresa A. Gustafson to review and interpret documentation related to the Hartford Refinery's operation between 1967 and 1988 for the purpose of generating an opinion on the documented leaks that occurred as a result of Hartford Refinery's operations and to provide an estimate of the volume of petroleum that was leaked from the Refinery. The documents were limited, however, because the Government asserts that many of the original documents were destroyed by Apex in 1995. (Doc. 88, p. 10, fn. 6.) Ms. Gustafson attempted to 1) calculate the average daily losses and 2) determine what portion of the daily losses were due to leaks and spills.
Based on Ms. Gustafson's review of the documents, she concluded the following in her expert report:
1. Leaks from the Clark/Apex terminal and river pipelines during the October 1967-October 1988 time frame resulted in the release of significant quantities of petroleum products underground beneath the Village of Hartford, Illinois.
2. External corrosion due to bare pipe, proximity of neighboring lines, and presence of acid gases played a significant role in causing or contributing to the releases.
3. The failure to properly isolate lines that had been abandoned in place resulted in two of the releases.
4. It is estimated that between approximately 720,000 and 1.4 millions gallons of petroleum products were released to the environment from the Clark/Apex refinery and pipelines each year during this time frame due to leaks. It is likely that the volume released would have been at the higher end of the estimated range during the earlier portion of ...