in the united states district court for the eastern ... · 7/31/2015 · i hereby certify that on...
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION UNITED STATES OF AMERICA and STATE OF ARKANSAS PLAINTIFFS VS. NO. 4:13-CV-00355 KGB EXXONMOBIL PIPELINE COMPANY and MOBIL PIPE LINE COMPANY DEFENDANTS
DEFENDANTS’ RESPONSE TO LETTER
FROM CENTRAL ARKANSAS WATER
Defendants ExxonMobil Pipeline Company (“EMPCo”) and Mobil Pipe Line
Company (collectively, “Defendants”), respectfully submit this response to the letter
sent to the Court by nonparty Central Arkansas Water (“CAW”). Dkt. No. 97
(Order of July 17, 2015). Defendants have reviewed the responses submitted by
Plaintiffs (Dkt. Nos. 98-99) and write separately to emphasize several points.
1. Commitment to Safe Operation of the Pegasus Pipeline. Defendants
are committed to the safe operation of all of their pipelines and facilities, including
the Pegasus Pipeline. The northern segment of the Pegasus Pipeline1 will only be
restarted once EMPCo is convinced it is safe to do so and the Pipeline and
Hazardous Materials Safety Administration (“PHMSA”) has given its approval.
Multiple steps are required before restart could occur, including steps noted in the
1 Only the northern segment runs through Arkansas. The southern segment is located exclusively in Texas and was previously restarted in July 2014 with PHMSA approval.
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proposed Consent Decree, and EMPCo does not anticipate those steps will occur this
year. See Exhibit 1 (Letter from EMPCo to U.S. EPA dated July 1, 2015).
2. Relevant History of Lake Maumelle. CAW’s driving concern is the
proximity of a portion of the pipeline not involved in the Mayflower incident in
Faulkner County to Lake Maumelle in Pulaski County.2 Specifically, CAW seeks
rerouting of the Pegasus Pipeline in the vicinity of Lake Maumelle. See, e.g., CAW
Letter at 3-4. The historical fact is that the construction of Lake Maumelle post-
dated the construction of the Pegasus Pipeline, and a portion of the pipeline was
previously relocated to facilitate construction of the lake. In brief, cooperation
between the Little Rock Municipal Water Works (predecessor to CAW3) and
Magnolia Pipe Line Company (predecessor to Mobil Pipe Line Company) at that
time resulted in an Agreement for the relocation of a portion of the pipeline. See
Exhibit 2 (Agreement dated Dec. 1, 1956). The 1956 Agreement set forth the new
route of the pipeline around the proposed lake, required the water utility to pay the
company $376,000 for the relocation work, and required the utility to grant
easements over any city land crossed by the relocated pipeline. Id. at ¶¶ 2-4 &
Appendices. The current location of the Pegasus Pipeline near Lake Maumelle is
precisely where the water utility specified it.
2 Lake Maumelle is a man-made lake created in the 1950’s by damming the Big Maumelle River. See generally http://www.carkw.com/wp-content/uploads/2011/07/Lake_Maumelle_ Brochure_2010_web.pdf. 3 See http://www.carkw.com/about-us/history/ (“Little Rock Municipal Water Works and its largest wholesale customer, the North Little Rock Water Department, merged July 1, 2001, into Central Arkansas Water”).
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3. PHMSA’s Primary Jurisdiction. CAW’s concerns fall largely within
PHMSA’s jurisdiction. PHMSA has primary jurisdiction here as a matter of law
over most of CAW’s issues—a point argued generally by Defendants in its pending
cross-motion for summary judgment (Dkt. Nos. 78-81). While the proposed Consent
Decree has thus far obviated the need for the Court to resolve that motion, it is
indisputable at a minimum that PHMSA has jurisdiction over the Pegasus Pipeline,
is actively exercising that jurisdiction, and is the expert agency charged by
Congress with pipeline safety regulation and enforcement. CAW misdirects its
complaints about PHMSA and the PHMSA process to this Court. See also Response
by the United States to the CAW letter at 6 (Dkt. No. 99) (“CAW appears to ask the
Court to reject Congress’s delegation of authority for pipeline safety to PHMSA….”).
4. Robust Negotiations. The proposed Consent Decree was negotiated at
arm’s length after more than a year of litigation and months of intensive settlement
negotiations that pressed all parties. Yet the tone of CAW’s letter and underlying
comments suggest a belief that Plaintiffs could have obtained the relief desired by
CAW in settlement. The parties are entitled to their bargain, and judicial
precedent indicates that CAW’s suggested terms may not be imposed upon them in
the negotiated Consent Decree. See, e.g., SEC v. Citigroup Global Markets, Inc., 752
F. 3d 285 (2d Cir. 2014); United States v. Jones & Laughlin Steel Corp., 804 F.2d
348 (6th Cir. 1986).
5. Procedural Deficiencies. CAW’s letter should not be entertained by the
Court. CAW—a sophisticated entity with its own legal department—is not a party
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to this matter, has never sought such status, and now attempts an end-run around
the Federal Rules of Civil Procedure. See, e.g., Citibank Int’l v. Collier-Traino, Inc.,
809 F.2d 1438 (9th Cir. 1987) (motion filed by nonparty should not be considered by
the court). Furthermore, CAW would lack standing to participate as a party,
because it was not injured by the Mayflower incident. See, e.g., Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992) (to have standing, a party must have suffered a
concrete and particularized injury caused by the alleged violation at issue); cf. Webb
v. Exxon Mobil Corporation, No. 4:13CV00232 BSM (E.D. Ark. July 24, 2015).4
CAW’s concerns lie elsewhere, geographically and temporally.
WHEREFORE, Defendants, who remain committed to the safe operation of
all segments of the Pegasus Pipeline, pray that the Court enter the Consent Decree
in this matter.
SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 Fax: (202) 736-8111 Email: [email protected] By /s/ Timothy K. Webster Timothy K. Webster
Roger R. Martella (Special appearance granted)
4 Webb was a proposed class action brought by easement holders along the Pegasus Pipeline. Judge Brian S. Miller found that the plaintiff easement holders had not suffered “an actual, recoverable injury” as a result of the Mayflower incident. See Dkt. No. 158 (July 24, 2015) (denying motion to alter or amend the judgment); see also Dkt. No. 152 (March 17, 2015).
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Attorneys for Defendants ExxonMobil Pipeline Company and Mobil Pipe Line Company
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CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2015, the foregoing DEFENDANTS’
RESPONSE TO LETTER FROM CENTRAL ARKANSAS WATER was filed and
served using the Court’s CM/ECF system.
/s/ Timothy K. Webster
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Exhibit 1
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Exhibit 2
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