ROANOKE RIVER BASIN ASSOCIATION v. DUKE ENERGY PROGRESS, LLCMOTION for Leave to Supplement Expert ReportsM.D.N.C.March 8, 2019IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ROANOKE RIVER BASIN ASSOCIATION, Plaintiff, v. DUKE ENERGY PROGRESS, LLC, Defendant. Civil Action Nos. 1:16-cv-607 and 1:17-cv-452 DUKE ENERGY PROGRESS, LLC’S MOTION TO ALLOW SUPPLEMENTATION OF BOTH PARTIES’ EXPERT REPORTS Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 1 of 13 1 INTRODUCTION Duke Energy Progress, LLC (“Duke”) respectfully requests that this Court allow the parties’ expert witnesses to consider up-to-date information in their reports and trial testimony. Specifically, Duke requests an additional, limited period of discovery, including, as warranted, supplemental expert reports and additional expert depositions, to allow both sides’ experts to consider new and updated information regarding the appropriate remedy in these cases. This information was not available when the experts’ reports were submitted almost a year and a half ago. Limited additional discovery on remedy-related issues can be conducted without disturbing the July 15, 2019 trial date.1 A critical issue in these cases-and a major point of disagreement between the parties-is the ultimate remedy for alleged Clean Water Act violations at Duke’s Mayo and Roxboro plants. Plaintiff Roanoke River Basin Association (“RRBA”) seeks through these lawsuits to force Duke to excavate coal ash from the settling basins at Mayo and Roxboro. As Duke has explained countless times, however, RRBA brought these lawsuits in the midst of an ongoing state administrative process through which Duke is required to close all settling basins, including those at Mayo and Roxboro. Depending on circumstances at each site and settling basin, closure may be accomplished through excavation (as RRBA demands here), capping the basins in place, or a combination of the 1 Because the new data at issue in this motion is related only to remedy in the event that liability is found, it does not affect Duke’s pending Motions for Summary Judgment on liability, Mayo ECF No. 99 and Roxboro ECF No. 110. (ECF citations refer to the dockets in the Mayo (1:16-cv-607) and Roxboro (1:17-cv-752) cases, respectively, as indicated.) Summary judgment rulings in Duke’s favor on liability would obviate the need for this additional discovery regarding remedy. Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 2 of 13 2 two. At the end of the administrative process for Mayo and Roxboro, the state will mandate an appropriate closure method for each plant. The state of North Carolina is thus evaluating the current and future state of the Mayo and Roxboro basins, various closure methods, and the environmental and community impacts of those methods. In seeking to continue the previously set December 2018 trial date, Duke explicitly relied on the fact that the administrative process is ongoing and requires Duke to continuously update and submit additional modeling, data, and analyses to assist the state’s decision-making process. In recent months, as specifically anticipated in Duke’s briefing on its Motion to Continue, Duke prepared and submitted materials to the state related to possible closure methods for the Mayo and Roxboro settling basins, including analyses of new closure methods and new aspects of old closure methods not previously evaluated. Having granted the Motion to Continue, the Court should not turn a blind eye to this newly developed evidence and force the parties’ experts to testify based on evidence that is now outdated. Duke proposes that RRBA’s experts have the opportunity to supplement their reports by April 15, 2019. Duke would conduct depositions as necessary and submit its supplemental expert reports by May 15, 2019, after which RRBA would have an additional month to depose Duke’s experts. This limited discovery period would end on June 15, 2019, a full month before the scheduled July 15, 2019 start of trial. BACKGROUND RRBA submitted its expert disclosures on November 1, 2017, and Duke submitted its expert disclosures on December 1, 2017. Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 3 of 13 3 Starting in November 2018, Duke began submitting three categories of updated materials to state regulators as part of its obligations under the state administrative process: (1) updated analyses of different closure methods and potential closure plans for the settling basins; (2) updated community impact analyses evaluating and comparing how different closure methods would affect the local environment’s capacity to provide community resources, such as clean drinking water and safe places for recreation; and (3) updated models showing potential future groundwater flow at the sites under different closure scenarios. Those submissions, in turn, rely on other more up-to-date information, including, for example, updated Human Health and Ecological Risk Assessments, which Duke also submitted to state regulators in fall 2018. See Mayo Community Impact Analysis 4 (Nov. 2018)2; Roxboro Community Impact Analysis 4 (Jan. 2019).3 In addition to these recent submissions, the state requires Duke to continue submitting information on an ongoing basis, such as quarterly or biannual submissions of groundwater monitoring data. See Groundwater Monitoring Data for Duke Energy Coal Ash Facilities, N.C. Dep’t of Envtl. Quality, https://deq.nc.gov/about/divisions/water- resources/water-resources-hot-topics/dwr-coal-ash-regulation/groundwater-monitoring- data-for-duke-energy-coal-ash-facilities (last visited Mar. 5, 2019). 2 Available at https://edocs.deq.nc.gov/WaterResources/0/edoc/776747/Mayo_NEBA_CommunityImpa ctAnalysis_20181115.pdf (last visited Mar. 5, 2019). 3 Available at https://files.nc.gov/ncdeq/Coal%20Ash/Roxboro_NEBA_REVISED_CommunityImpact Analysis_20190115.pdf (last visited Mar. 5, 2019). Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 4 of 13 4 As a result of the information developed in these new submissions, the factual predicates about remedial issues, upon which both parties’ experts relied in their original reports, are obsolete. Critically, there are additional closure methods now under consideration at both plants, and many of the assumptions underlying the previously analyzed closure methods have been revised to reflect new information. To provide a few examples of the many factual changes since the original expert reports: • The state is evaluating new “hybrid” closure methods for both sites, all of which combine excavation with capping in place.4 None of these new hybrid options were considered by either side’s experts in their original reports.5 • While capping the Mayo basin was originally estimated to require 108 truck trips per day and result in nine acres of deforestation, new estimates 4 See Mayo Closure Options Analysis Summary Report 2-3 (Nov. 2018), available at https://files.nc.gov/ncdeq/Coal%20Ash/Mayo_ClosureOptionsAnalysis_20181114.pdf (last visited Mar. 5, 2019); Roxboro West Ash Basin Closure Options Analysis Summary Report 2-3 (Jan. 2019), available at https://files.nc.gov/ncdeq/Coal%20Ash/Roxboro_WAB_REVISED_ClosureOptionsAnal ysis_20190118.pdf (last visited Mar. 5, 2019); Roxboro East Ash Basin Closure Options Analysis Summary Report 2-3 (Jan. 2019), available at https://files.nc.gov/ncdeq/Coal%20Ash/Roxboro_EAB_REVISED_ClosureOptionsAnaly sis_20190118.pdf (last visited Mar. 5, 2019); Mayo Community Impact Analysis xvii (Nov. 2018); Roxboro Community Impact Analysis xviii (Jan. 2019); Mayo Updated Groundwater Flow and Transport Modeling Report 27 (Nov. 2018), available at https://edocs.deq.nc.gov/WaterResources/0/edoc/776745/Mayo_FateTransportModeling Report_Nov2018.pdf (last visited Mar. 5, 2019); Roxboro Updated Groundwater Flow and Transport Modeling Report 37 (Nov. 2018), available at https://edocs.deq.nc.gov/WaterResources/0/edoc/776754/Roxboro_FateTransportModelR eport_Nov2018.pdf (last visited Mar. 5, 2019); Ex. 1, Roxboro Updated Groundwater Flow and Transport Modeling Report 37 (rev. Jan. 2019). 5 Some experts evaluated in their original reports a scenario for Roxboro that included capping the West Ash Basin and excavating the East, but none evaluated the additional hybrid options now under consideration by state regulators. Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 5 of 13 5 show it may require as few as five truck trips per day, but result in 12 acres of deforestation.6 • While excavating the Roxboro basins to a landfill at the Mayo site was originally estimated to result in 887 acres of deforestation and require 191 truck trips per day, new estimates show it may only lead to 166 acres of deforestation, but demand an average of 200 truck trips per day.7 • The new materials include additional and updated estimates of the time to complete closure and associated cost estimates for the various closure methods. For example, whereas construction costs for capping in place at Mayo were originally estimated at roughly $40 million and excavation at roughly $142 million, updated estimates suggest construction costs for capping would be around $75 million and excavation $200 million.8 • New information has been incorporated into updated groundwater flow models for both sites.9 As noted, all of the above-referenced updated materials are publicly available on the North Carolina Department of Environmental Quality website. Duke also shared these materials with RRBA’s counsel via overnight mail within days of submission to state regulators, starting in early November and continuing through the most recent submissions on February 22, 2019. On February 14, 2019, RRBA’s counsel provided an initial indication that, despite this new information, they believe supplementing expert reports is unnecessary. See Ex. 5, Email from Frank Holleman to Nash Long. Duke 6 Compare Ex. 2, Morrison Mayo Report 12 (Dec. 2017), with Mayo Community Impact Analysis 12 (Nov. 2018). 7 Compare Ex. 3, Morrison Roxboro Report 13-14 (Dec. 2017), with Roxboro Community Impact Analysis 14-15 (Jan. 2019). 8 Compare, e.g., Ex. 4, Hosmer Mayo Report 15 (Dec. 2017), with Mayo Closure Options Analysis Summary Report 4 (Nov. 2018). 9 See Mayo Updated Groundwater Flow and Transport Modeling Report (Nov. 2018); Ex. 1, Roxboro Updated Groundwater Flow and Transport Modeling Report (rev. Jan. 2019). Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 6 of 13 6 raised the issue with RRBA’s counsel again on March 6, 2019. On a March 8, 2019 meet and confer, RRBA officially confirmed its refusal to agree to supplementation. ARGUMENT I. Good Cause Exists to Reopen Discovery on Remedy Issues Discovery may be reopened-by modifying a prior scheduling order-“for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The good cause provision of Rule 16(b)(4) does not focus on the prejudice to the non-movant or bad faith of the moving party, but rather on the moving party’s diligence.” Johnson v. City of Fayetteville, No. 12-cv-456, 2015 WL 2353648, at *1 (E.D.N.C. May 15, 2015) (citing Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff’d, 129 F.3d 116 (4th Cir. 1997)). District courts in North Carolina routinely reopen discovery for limited purposes when necessary to allow parties to obtain or incorporate new, relevant evidence or information. See, e.g., Cybernet, LLC v. David, No. 16-cv-16, 2018 WL 810142, at *5 (E.D.N.C. Feb. 9, 2018) (reopening discovery for limited purpose of completing deposition regarding information court determined was both relevant and not subject to previously asserted privilege); Johnson, 2015 WL 2353648, at *2 (reopening discovery for limited purpose of allowing party to obtain relevant, newly- discovered records). The Court should do so here.10 10 To the extent the Court construes this as a request to extend a deadline under Federal Rule of Civil Procedure 6(b), Duke has also made the necessary showing. See Fed R. Civ. P. 6(b)(1)(B) (allowing the court “for good cause” to “extend the time on motion made after the time has expired if the party failed to act because of excusable neglect”). The Supreme Court has recognized that “excusable neglect” includes “intervening circumstances beyond the party’s control.” Pioneer Inv. Servs., Co. v. Brunswick Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 7 of 13 7 Much has changed since the close of discovery in these cases. Under the Court’s scheduling order, discovery closed on February 1, 2018.11 See Mayo ECF Nos. 42, 43; Roxboro ECF Nos. 22, 23. Both parties were diligent in conducting discovery during the prescribed period, including exchanging voluminous written materials and expert reports, as well as deposing both fact and expert witnesses. But since discovery closed, the trial date has moved twice, with trial now scheduled to begin a full year later than originally scheduled. During that time, as described above, Duke has fulfilled its obligations under state law to prepare and submit additional materials to the state of North Carolina that are directly relevant to the issues in these cases. Duke has been diligent both in providing these new materials to RRBA and in seeking to reopen discovery. Duke first sent many of these updated materials to RRBA in November 2018, and counsel for both sides subsequently discussed the possibility of supplementing their experts’ reports based on the updated materials prior to trial. It was not until February 14, 2019, that RRBA’s counsel gave any indication that they do not believe supplementation is necessary. And Duke has not hidden the fact that this administrative process is ongoing and that new materials are being produced. Indeed, in moving to continue the trial to its Assocs., Ltd., 507 U.S. 380, 388 (1993). Duke’s ongoing obligations to compile and submit information to the state of North Carolina are beyond its control, and the changes therein simply reflect the “intervening circumstances” of new information that must be incorporated into those submissions. 11 The Court allowed a limited extension of the discovery period to February 16, 2018, for the sole purpose of deposing non-party witnesses from North Carolina’s Department of Environmental Quality. Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 8 of 13 8 current date, Duke relied in part on the “ongoing data collection, modeling, and analysis of basin closure options” that will “further develop the evidence in these cases” and “assist the Court and jury in their respective roles.” Reply in Supp. of Mot. to Continue 2-3, Mayo ECF No. 125, Roxboro ECF No. 132.12 The Court granted Duke’s Motion to Continue on October 2, 2018. Mayo ECF No. 128, Roxboro ECF No. 135. Having done so, it would not make sense to turn a blind eye to the new evidence that-as promised-has developed since that time. Having diligently pursued discovery during the allotted period, and since then diligently kept the Court and opposing counsel abreast of updated information as it became available, Duke has shown good cause to reopen discovery for the limited purpose described above. II. Supplementation Would Not Disturb the Current Trial Date Allowing the parties’ experts to incorporate the most up-to-date information in supplemental reports would not delay trial. Trial in these cases is set to begin July 15, 2019. See Notice of Jury Trial, Mayo ECF No. 129, Roxboro ECF No. 136. In 12 See also Mot. to Continue 3-5, Mayo ECF No. 123, Roxboro ECF No. 130 (detailing extensive ongoing state administrative processes and timelines, including Duke’s then- anticipated submission of closure options analyses in “Fall/Winter 2018”); Ex. 1 to Reply in Supp. of Mot. to Continue, Mayo ECF No. 125-1, Roxboro ECF No. 132-1 (Letter from North Carolina Assistant Secretary for Environment setting November 15, 2018 deadline for Duke to submit updated closure options analyses and groundwater modeling). Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 9 of 13 9 accordance with their burden of proof,13 Duke proposes that RRBA’s experts supplement their reports by April 15, 2019. Duke would conduct depositions regarding the experts’ review of the supplemental information as necessary and be prepared to submit its own updated expert reports by May 15, 2019, thereby allowing RRBA a full month (until June 15, 2019) to depose Duke’s experts on their review of the supplemental information, and giving both parties ample time to prepare for trial on schedule. CONCLUSION There is simply no good reason to keep this information out of these cases. Allowing the parties’ experts to take into account the most up-to-date, relevant information will allow both sides to provide the Court with a full and accurate picture of the available remedies at trial. Proceeding to trial based on outdated information would disserve the Court, parties, and public. Duke respectfully requests that the Court reopen discovery for this limited purpose and order that RRBA supplement its expert reports no later than April 15, 2019, and Duke no later than May 15, 2019, with both sides completing any additional expert depositions by June 15, 2019. Respectfully submitted, this 8th day of March, 2019. WILKINSON WALSH + ESKOVITZ LLP /s/ Kieran Gostin Beth A. Wilkinson (admitted pro hac vice) D.C. Bar #462561 13 See Fed. R. Civ. P. 26(a)(2), advisory committee’s note to 1993 amendment (“the party with the burden of proof on an issue should disclose its expert testimony on that issue before other parties are required to make their disclosures with respect to that issue”). Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 10 of 13 10 bwilkinson@wilkinsonwalsh.com Tamarra D. Matthews Johnson (admitted pro hac vice) D.C. Bar #478284 tmatthewsjohnson@wilkinsonwalsh.com Kosta S. Stojilkovic (admitted pro hac vice) D.C. Bar #975963 kstojilkovic@wilkinsonwalsh.com James M. Rosenthal (admitted pro hac vice) D.C. Bar # 456124 jrosenthal@wilkinsonwalsh.com Kieran Gostin (admitted pro hac vice) D.C. Bar #1019779 kgostin@wilkinsonwalsh.com 2001 M Street NW, 10th Floor Washington, DC 20036 (202) 847-4000 HUNTON ANDREWS KURTH LLP Nash E. Long N.C. State Bar # 24385 nlong@huntonak.com Brent A. Rosser N.C. State Bar # 28789 brosser@huntonak.com Melissa A. Romanzo N.C. State Bar # 38422 mromanzo@huntonak.com Emma C. Merritt N.C. State Bar # 35446 emerritt@huntonak.com 101 South Tryon Street, Suite 3500 Charlotte, NC 28280 (704) 378-4700 Attorneys for Defendant Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 11 of 13 11 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.3(d)(1), the undersigned certifies that the word count for this MOTION TO ALLOW SUPPLEMENTATION OF BOTH PARTIES’ EXPERT REPORTS is less than 6,250 words. The word count excludes the case caption, signature lines, cover page, and required certificates of counsel. In making this certification, the undersigned has relied upon the word count of the word-processing system used to prepare the brief. This 8th day of March, 2019. /s/ Kieran Gostin Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 12 of 13 12 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of March, 2019, I electronically filed the foregoing MOTION TO ALLOW SUPPLEMENTATION OF BOTH PARTIES’ EXPERT REPORTS with the Clerk of Court using the CM/ECF System, which will send notification of such filing to the users registered on the Court’s CM/ECF System. /s/ Kieran Gostin Case 1:17-cv-00452-LCB-JLW Document 148 Filed 03/08/19 Page 13 of 13
