Reece et al v. AES Corporation et al

Filing 419

ORDER by Judge Joe Heaton: granting #354 #355 #358 #359 #363 #368 #374 #375 #376 #377 #379 #380 #383 #418 ; denying #353 Motion to Strike; granted in part and deferred in part #350 #351 #352 #353 #356 #360 #361 #362 #364 #365 #367 #370 ; deferred #366 (cjt, Deputy Clerk) (Main Document 419 replaced on 1/9/2014 to correct date) (cjt, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
WILLIAM REECE, ET AL.,
Plaintiff,
vs.
AES CORPORATION, ET AL.,
Defendants.

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NO. CIV-12-0457-JH

ORDER
Plaintiffs filed this case in state court as a putative class action against companies
involved in the generation, transportation and disposal of coal combustion waste and oil and
gas drilling waste fluids. XTO Energy, Inc. removed the case to federal court pursuant to the
Class Action Fairness Act, after plaintiffs amended their petition to add it and other
defendants. Several defendants filed motions to dismiss, which the court granted but with
leave to amend. Plaintiffs then filed their first amended complaint (“amended complaint”)
[Doc. #315] and more motions to dismiss, plus a motion to strike, were filed, which now are
at issue.
When considering whether a plaintiff’s claims should be dismissed under
Fed.R.Civ.P. 12(b)(6), the court accepts all well-pleaded factual allegations as true and views
them in the light most favorable to the plaintiff as the nonmoving party. Anderson v. Suiters,
499 F.3d 1228, 1232 (10th Cir. 2007). The question is whether the amended complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must provide sufficient factual

allegations to “raise a right to relief above the speculative level.” Id. at 555. Considering
plaintiffs’ claims under this standard, the court concludes the motions of the defendants that
transported the waste materials should be granted and the remaining motions should be
denied in part or altogether, assuming plaintiffs’ supplement their amended complaint as
directed with sufficient allegations of damages.
Background1
Plaintiffs contend defendants have polluted and contaminated the environment in
which they live and work in LeFlore County, Oklahoma with coal combustion waste (“fly
ash”) generated by a coal fired electric generating plant (the “Shady Point Plant” or “Plant”)
and waste fluids generated by oil and gas drilling operations. They allege they have
sustained property damage and personal injuries as the result of defendants’ improper
handling, transporting, storage or disposal of the contaminants.
Plaintiffs have sued five groups of defendants. The AES defendant group consists of
AES Corporation (“AES”) and two of its subsidiaries: AES Shady Point, Inc. and AES Shady
Point, LLC (“AES Shady Point”),2 which own and operate the Shady Point Plant.3 A second
group, the MMHF defendants, includes Making Money Having Fun, LLC (“MMHF”), the

1

The background is drawn from plaintiffs’ allegations in the first amended complaint. Page
references for briefs are to the CM/ECF document and page number.
2

In their motion to dismiss, the AES defendants note that AES Shady Point, LLC was formerly
known as AES Shady Point, Inc. Doc. #364, p. 7
3

Two other AES subsidiaries were named as defendants– Coal Creek Minerals, Inc., which
provides coal to the Plant, and Mountain Minerals, Inc., which hauls waste from the Plant to
disposal sites.
2

owner/operator of a commercial disposal pit (the “MMHF Facility” or “MMHF Pit”) located
on land owned by Thumbs Up Ranch, LLC “(“TUR”), where the bulk of the fly ash
generated at the Plant was taken,4 and MMHF and TUR’s owners, the Jacksons. Oil and gas
companies with wells and drilling operations in Oklahoma and Arkansas that generated fluid
waste that was disposed of at the MMHF Facility make up another defendant group ( the “oil
producers”). The remaining groups consist of trucking companies that hauled coal to the
Plant and then transported and disposed of fly ash from it (“fly ash truckers”),5 or companies
that transported fluid waste from oil and gas drilling operations to the MMHF Facility (“fluid
waste truckers”). Plaintiffs refer to the oil producers and fluid waste truckers as the “PFW
Defendants.”
The Class Area is described in the amended complaint as:
[T]hat portion of LeFlore County, Oklahoma located within:
a. A three-mile radius or more of the Making Money Having Fun pit (“MMHF
Dump Site”) located approximately one (1) mile south of Bokoshe, Oklahoma,
LeFlore County, Oklahoma and into which the Defendants, or any one of
them, have transported or disposed or caused the transport or disposal of
CCW/Fly Ash and/or PFW;
b. A three-mile perimeter measured from the legal boundaries of the AESSP
property on which the plant is located; A three-mile radius of any open
CCW/Fly Ash disposal pit within LeFlore County, including but not limited
to the Milton Pit, the Rose Mine Pit, the Starlite II Mine Pit, and the Heatherly
Mine Pit, the presence or precise location of which Plaintiffs identify during
the course of discovery in this action;
d. One thousand (1000) yards of private, roads, streets, and driveways within
LeFlore County which are or have been:
4

Plaintiffs allege that a portion of the TUR ranch property was also used as a commercial
storage site for fly ash generated at the Shady Point Plant.
5

A few companies are alleged to have only transported and disposed of fly ash.
3

I. used by vehicles hauling CCW/Fly Ash from the AES Shady Point
coal-fired plant to the MMHF Dump Site; and
ii. used by vehicles hauling CCW/Fly Ash from the AES Shady Point
coal-fired plant to any open CCW/Fly Ash disposal pit or dump site within the
Class Area described in subparagraph “b” above.
Amended complaint, ¶3.
Plaintiffs allege that in 1990 AES completed construction of the Shady Point Plant,
located in the Class Area approximately seven miles from the town of Bokoshe and the
MMHF Facility.6 The Plant is fueled by coal and limestone delivered by train or trucked in
by defendants GCI Mining, Mountain Minerals, Inc., Brazil Creek Minerals, Inc., FarrellCooper Mining Company, Ash Grove Resources, LLC, Marine Coal Sales Company, Hunter
Ridge Coal Company, International Coal Group, LLC and Coal Creek Minerals, LLC.
Once delivered, the coal and limestone are stored in a structure located on a 17 acre
pad. Additional coal is stored on the pad without cover. The coal and limestone are crushed
on-site and burned continuously resulting in the continuous generation of fly ash,7 which is
collected and moved to storage silos at the Plant. From there it is loaded onto trucks or rail
cars and moved off-site. According to the complaint, approximately 80% of the 300,000 tons
of fly ash that is generated annually is disposed of in the Class Area.
Plaintiffs allege the Plant has generated and released fly ash for more than two
decades, and assert that it has escaped from transport trucks and rail cars.

Flue-gases

6

The MMHF Facility is about a mile from Bokoshe.

7

The term “fly ash,” as alleged in the amended complaint, consists of solid particles
produced by the combustion of coal and solid particles of gypsum generated by the injection of
crushed limestone into the coal combustion process.
4

containing sulfur dioxide, nitrogen oxides, mercury and other matter allegedly have also been
emitted. In addition, the Plant is alleged to have released hazardous metal compounds and
toxic chemicals into the Class Area, including the MMHF Pit, and to be responsible for the
chemicals’ disposal into “pits, streams, rivers, groundwater, the air and the general
environment within the Class Area.” Amended complaint, ¶ 101.
Trucks hauling the fly ash from the plant to dump sites8 follow a common route (the
“Haul Route”), which includes the main roads used by the citizens of LeFlore county when
they are traveling between Bokoshe and the Class Area. Plaintiffs claim that
[a]s a result of the location of the AESSP plant, the Haul Route, and the [fly
ash] dump sites, the release of [fly ash] has occurred and is occurring within
and across the Class Area. [Fly ash] generated at the [Plant] has been and is
being deposited on and in the real and personal property of the Plaintiffs and
Putative Class Members. Through contact with polluted air, contaminated
water and soil present within the Class Area, the Plaintiffs and Putative Class
Members have been and continue to be exposed to [fly ash] generated at the
[Plant].
Amended complaint, ¶110.
Most of the fly ash from the Plant has been deposited in the MMHF Pit, formerly a
strip mine. Two abandoned underground mines underlie the MMHF Pit, which plaintiffs
allege has no liner to contain the contaminants deposited there. Plaintiffs contend that the
fly ash, waste fluids and other waste materials, once dumped in the MMHF Pit have
migrated, polluting surface and groundwater, evidenced by water samples collected from a

8

Plaintiffs allege that there were multiple disposal pits, including the Milton Pit, the Rose
Mine Pit, the Starlite II Mine Pit and the Heatherly Mine Pit. Amended complaint, ¶¶3(c), 16, 19.
5

nearby creek. Winds have allegedly carried fly ash, that was deposited at the MMHF Pit or
released during coal combustion or while being loaded, hauled or dumped, into the Class
Area.
According to the complaint, MMHF applied for and, on April 16, 2001, received, a
permit from the Oklahoma Department of Mines (“ODM”) to accept and dispose of Fly Ash
from the Shady Point Plant at the MMHF Pit. In July of 2002 an Environmental Protection
Agency report stated that significant amounts of fugitive ash were seen when loads of ash
were dumped and Oklahoma Department of Environmental Quality (“ODEQ”) staff, when
visiting MMHF in February 17, 2009, observed large amounts of fugitive ash being emitted
into the air when loads of fly ash were being deposited into the MMHF Pit. Plaintiffs claim
the Jackson brothers made certain representations and misrepresentations to the ODEQ
inspectors during that visit and that ODEQ “came to the regulatory conclusion that fugitive
ash is an issue at the MMHF facility.” Amended complaint, ¶ 159.
The complaint alleges that, in April 2009, after numerous citizen complaints about
“Defendants’ conduct in transporting and disposing of Fly Ash,” ODEQ performed an air
quality full compliance evaluation (“FCE”). Id. at ¶ 160. The report stated that MMHF was
not operating according to industry standards. Otherwise, “emissions coming from the
Disposal Facility would not be considered fugitive in nature . . . .” Id. The agency allegedly
concluded that MMHF was operating in violation of various provisions of the Oklahoma
Administrative Code, including failing to have required permits.
The next month ODEQ inspectors against visited MMHF and made several
6

observations, including that“[t]he water is generated from oil and gas production and arrives
at the facility from various haulers and various sources,” and “[t]he ash is generated from [the
Shady Point Plant], and “particulate matter was being blown into the air while the ash trucks
were unloading and from dry piles of ash that were located all around the area the trucks
were driving and unloading.” Id. at ¶ 162. On May 1, 2009, ODEQ found that MMHF was
violating the Oklahoma Administrative Code by failing to submit an emission inventory, to
apply for and obtain a construction permit, to file a timely application for an operating
permit, to obtain a construction permit and to take reasonable precautions. Id. at ¶ 163.
Plaintiffs allege that the AES defendants, the MMHF defendants and the fly waste truckers
“continue to dispose of their waste in a manner that pollutes and contaminates the
environment and community within the Class Area.” Id. at ¶ 165.
The complaint further alleges that, in September 2002, MMHF sought permission
from the Oklahoma Corporation Commission (“ OCC”) to accept “produced water”9 from
oil and gas wells and that in February 2003 the OCC issued Order No. 472170 allowing “the
disposal of water produced in association with oil and gas wells producing coal seam gas”
into the MMHF Dump Site. Id. at ¶ 170. Plaintiffs allege that the order is a “matter of public
record and the [fluid waste] generators and operators were burdened with knowledge of the
order and its restrictions.” Id. at ¶ 171. They claim that the fluid waste deposited at the
MMHF Dump Site was not the permitted produced water, but included oil, synthetic-based

9

“Produced water” is “the water that exists in subsurface formations and is brought to the
surface during oil and gas production.” Amended complaint, ¶167.
7

drilling waste solids and fluids, and frack flowback waste solids and fluids. Plaintiffs assert
that “MMHF and the PFW Defendants were at all times aware that the fluids that were being
dumped into the MMHF pit were in violation of and in contrary to the provisions of the
permit and were not Produced Water.” Id. at ¶ 172. MMHF sought in May 2004 to amend
Order No. 472170 to allow it “to accept ‘drilling waste and/or drilling water’ from operations
produced from ‘any geologic zone or common source of supply,’” id. at ¶ 173, but dismissed
its request the next month.
The complaint alleges that a subsequent OCC Order, No. 491749, issued in June 2004,
allowed “MMHF to accept ‘fresh water with TDS of 5,0000 mg/l or less’ from ‘any geologic
zone or common source of supply,’” id. at ¶ 175, but that MMHF and the PFW Defendants
did not abide by the limitation. MMHF was subsequently authorized by OCC Order No.
549096 to “‘use [Produced] water with TDS of greater than 5,000 mg/l produced from oil
and/or gas wells …[p]rovided any water with TDS of greater than 5,000 mg/l shall be
blended with fresh water so as to reduce the TDS to 5,000 mg/l or less prior to placing
such water into the [MMHF] disposal pit.’” Id. at ¶ 177 (emphasis in original). Plaintiffs
contend MMHF and the PFW Defendants similarly failed to comply with Order No. 549096.
Plaintiffs assert that the PFW Generator Defendants, as well operators, “are
recognized by State and Federal law as the ‘generator’ and ‘person responsible’ for oil and
gas wastes generated at the well site during drilling, completion, and fracking.” Id. at ¶ 181.
They maintain that, as generators of fluid waste, the PFW Defendants “bear full
responsibility for proper disposal of the drilling, completion, and frack flowback wastes.”
8

Id. at ¶ 183. While OCC rules prohibit the discharge of flowback and hydraulic fracturing
fluids to surface waters, plaintiffs claim the PFW Defendants “intentionally sent flowback
and other hydraulic fracturing waste fluids from [wells identified in the amended complaint]
to the open unlined MMHF Dump Site pit and into surface waters of the Class Area in
violation of OCC Rule 165:10-7-24(b)(3).” Id. at ¶ 180. As a result, plaintiffs allege, the
“toxic and potentially toxic pollutants generated by the PFW Defendants and discharged into
the MMHF Dump Site pit, have contaminated and continue to contaminate the air, land, and
waters adjacent to, under, and around the MMHF Dump Site and the Class Area.” Id. at ¶
182.
Plaintiffs allege that the fluid waste disposed of at “the MMHF Dump Site was mixed
with CCW/Fly Ash and the resulting toxic cocktail was allowed to fill the MMHF pit, and
regularly overflow the pit into Doe Creek and other creeks, surface drainages, and as sheet
flow across private and public lands” and allowed to migrate into “groundwater-bearing
horizons.” Id. at ¶ 187. In October and December 2009, EPA inspectors “‘observed
unauthorized, non-permitted discharges of pollutants generated from reclamation activities
conducted by MMHF which involved mixing fly ash and oil field brine’” and “documented
that produced wastewater was being unlawfully discharged from the Disposal Facility to
‘waters of the United States.’” Id. at ¶ 188. On December 10, 2009, the EPA issued a Cease
and Desist Order for violation of the Clean Water Act.
In their first cause of action plaintiffs allege that all defendants, by handling,
transporting and disposing of fly ash and fluid waste, engaged in abnormally dangerous
9

activities which have harmed the persons and property of the plaintiffs and putative class
members and the environment of the Class Area. In their remaining causes of action,
plaintiffs assert nuisance (private and public), trespass, negligence, negligence per se and
unjust enrichment claims against all defendants. Plaintiffs seek compensatory and punitive
damages, plus injunctive relief.
The following defendants have moved to dismiss plaintiffs’ claims:10 AES
Corporation, AES Shady Point, LLC, Mountain Minerals, LLC, Coal Creek Minerals LLC,
MMHF, LLC, Thumbs Up Ranch, LLC, Daryl J. Jackson, Kevin J. Jackson, Kenneth
Jackson, Chad Jackson, PX Transportation, Inc. d/b/a Star Bulk, GCI Mining, a/k/a Georges
Colliers Inc., McCorkle Truck Line, Inc., Ash Grove Resources, LLC, Farrell-Cooper Mining
Company, Brazil Creek Minerals, Inc., Marine Coal Sales Company, Hunter Ridge Coal
Company, International Coal Group, LLC, XTO Energy Inc., Highland Oil & Gas, LLC, B
& B Gas Well Services, L.L.C., Sedna Energy, Inc., Shields Operating, Inc., Hanna Oil and
Gas Company, Hogback Exploration, Inc.,Cholla Petroleum, Inc.,Stephens Production
Company, BP America Production Company, Chesapeake Operating Inc., Petrohawk
Operating Company, SEECO, Inc., Ross Explorations, Inc., Graco Fishing & Rental Tools,
Inc.,Big Mac Tank Trucks, LLC, Bear Productions, Inc., Bear Transports, LLC, Mike Krebbs
Construction, Inc., and TXD Transport, LP. BP America Production Company has also filed
a motion to strike.

10

A number of defendants adopted another defendant’s or several other defendants’ motions.
10

Analysis
Strict Liability
Plaintiffs’ strict liability and medical monitoring claims will be addressed first, as they
can be resolved with minimal consideration of the specific allegations against each defendant
group. The court will then address plaintiffs’ claims against each defendant group, followed
by challenges to plaintiffs’ trespass, negligence per se, unjust enrichment, nuisance and class
claims.
In their amended complaint plaintiffs allege generally that “Defendants’ handling,
transport and disposal activities of CCW/Fly Ash and PFW are abnormally dangerous.”
Amended complaint, ¶ 207. However, in their response brief plaintiffs focus on the actual
waste disposal as being the ultrahazardous activity. See Doc. #386, p. 12 (“Disposal of
Waste is an Abnormally Dangerous Activity”). Plaintiffs assert that, “[a]s a threshold matter,
it is uncontested that CCW and PFW were disposed of and have escaped the MMHF Dump
Site through the air, surface water and groundwater,” id. at p. 10, and then proceed to list
alleged problems with the disposal site, such as documented escapes of fly ash and fluid
wastes from the MMHF Facility by federal and state regulatory authorities. Id. at pp. 10-11.
As framed both by the amended complaint, e.g. ¶ 60(d)-(f), 61-72, 74-79, and
statements in plaintiffs’ brief, Doc. #386, pp. 12-21, plaintiffs’ strict liability claims are
principally based on allegations that defendants improperly dumped fly ash and oil and gas
drilling waste (some not authorized under the Facility’s permits) in an open, unlined pit, that

11

was located too close to a populated area and “dug over subterranean mines.”11 Doc. #386,
p. 11.12 These allegations suffice to state strict liability claims against the MMHF group, but
not the other defendants.13
All parties appear to view Oklahoma law as determinative as to these claims. Under
Oklahoma law, a party engaged in an ultrahazardous activity is liable for damages caused by
the activity regardless of fault. Wetsel v. Indep. Sch. Dist. I-1, 670 P.2d 986, 990
(Okla.1983). Oklahoma courts have applied the doctrine of strict liability in cases involving
wild animals and dynamite, City of Mangum v. Brownlee, 75 P.2d 174, 175-76 (Okla.
1938); Smith v. Yoho, 324 P.2d 531, 533 (Okla. 1958), and the Tenth Circuit has concluded
that Oklahoma courts would apply strict liability to the escape of plutonium. Silkwood v.
Kerr-McGee Corp., 667 F.2d 908, 921 (10th Cir. 1981), rev'd on other grounds, 464 U.S.
238 (1984). The doctrine also has been applied in a case involving herbicides. In Young v.
Darter, 363 P.2d 829 (Okla.1961) the Oklahoma Supreme Court concluded that spraying
poison was a hazardous activity and that a landowner whose weed killer drifted and damaged
a neighbor’s crop would be accountable for any resulting damage, regardless of fault. The

11

Neither coal combustion waste products nor “[d]rilling fluids, produced waters and other
wastes from oil and gas operations are regulated as “hazardous wastes” under the Resource
Conservation and Recovery Act. See 40 C.F.R. §§ 261.4(b)(4)-(5).
12

Although plaintiffs discuss defendants’ asserted reliance on the “petroleum exclusion,”
defendants do not rely on it as a defense to plaintiffs’ claims.
13

Whether an activity is ultrahazardous is a question of law. Restatement (Second) of Torts,
§ 520, comment 1 (1977). Plaintiffs have not challenged the propriety of defendants’ raising the
issue in a motion to dismiss. The court concludes that, under the circumstances of this case, the issue
can appropriately be addressed at this time.
12

court noted that it was presented with a situation in which the doctrine, “‘[o]ne must so use
his own rights as not to infringe upon the rights of another,’ may be applied in its broad and
fundamental import.” Id. at 832.14
Young provides a basis for imposing strict liability on the MMHF defendants, but it
does not demonstrate the Oklahoma Supreme Court’s willingness to extend the doctrine to
the extent sought by plaintiffs. Neither do the cases plaintiffs discuss in their brief. In those
cases, while the courts imposed strict liability for off-site contamination caused by the
discharge or disposal of chemicals and hazardous products, liability was imposed on the
property owner, lessee or operator from whose premises the pollution spread. E.g., Daigle
v. Shell Oil Co., 972 F.2d 1527, 1531 (10th Cir. 1992) (“Shell used Basin F under lease from
the Army to impound hazardous waste generated in its herbicide and pesticide manufacturing
activities on the Arsenal”); Town of New Windsor v. Avery Dennison Corp., 2012 WL
677971, at *11 (S.D.N.Y. Mar. 1, 2012) (“It is for the court to decide whether an activity of
a landowner is abnormally dangerous and warrants imposition of strict liability.”) (emphasis
added) (internal quotations omitted); see also Fletcher v. Conoco Pipe Line Co., 129 F. Supp.
2d 1255, 1259 (W.D. Mo. 2001) (“The doctrine of strict liability arose from an English case,
14

While arguably Young was based on a nuisance, rather than strict liability, theory, the
Oklahoma Supreme Court relied on the rule of Rylands v. Fletcher, L.R. 3 E. & I. App. (H.L.1868),
which “has been explained and codified in the Restatement (Second) of Torts, section 519 (1977):
‘One who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land or chattels of another resulting from the activity, although he has exercised the utmost care to
prevent the harm.’” Roeder v. Atl. Richfield Co., 2011 WL 4048515, at *4 (D. Nev. Sept. 8, 2011)
(quoting Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295, 297 (Nev.1993)). Courts have
subsequently cited or referred to Young as involving a strict liability claim. See e.g. Silkwood, 667
F.2d at 921; Roeder, 2011 WL 4048515 at *4.
13

Rylands v. Fletcher, 1 L.R.-Ex. 265 (Ex. Ch. 1866), aff'd, 3 L.R.-E & I.App. 330 (H.L.1868).
Rylands established the premise that if a person brings something on his land which, if it
escapes, is likely to do great damage, that person is prima facie liable for all the harm
naturally occurring if there is an escape.”). Plaintiffs do not point to a single case that
supports doing what they seek to do here – impose strict liability on any party that generated
or transported materials to a disposal site from which the materials then escaped. They also
fail to make a cogent argument that the Oklahoma courts would expand the scope of the
doctrine under the alleged facts. Plaintiffs essentially are asking the court to hold the other
defendants strictly liable for the alleged illegal/improper conduct or activity of the MMHF
defendants. Their bald assertions that defendants, in addition to the MMHF group, “disposed
of” or “caused the disposal of” fly ash or fluid waste, e.g. amended complaint, ¶¶ 21, 37, are
insufficient to hold them accountable under a theory of strict liability with the parties (the
MMHF defendants) that actually disposed of the waste.
Because the only activity plaintiffs claim is ultrahazardous is the disposal of the fly
ash and fluid waste, there is no need to analyze the separate activities or operations of the
non-MMHF defendants. Nonetheless, using the factors set forth in the Restatement (Second)
of Torts § 520 (1977), “the most recognized legal framework for ultrahazardous strict
liability claims,” Daigle, 972 F.2d at 1544,15 the court would not find, under the well-pleaded
facts, that the other defendants engaged in ultrahazardous activities, even if plaintiffs had

15

The Oklahoma courts have looked to the Restatement for guidance. E.g., Taylor v. Hesser,
991 P.2d 35, 39 (Okla. Civ. App. 1998).
14

sought to hold them strictly liable on the basis that their activities were somehow part of the
“disposal process.”
The Restatement lists six factors to be considered: “( a) existence of a high degree of
risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that
results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable
care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness
of the activity to the place where it is carried on; and (f) extent to which its value to the
community is outweighed by its dangerous attributes.” Restatement (Second) of Torts § 520.
Of these, only the second and possibly the fourth support a finding that the non-MMF’s
activities were ultrahazardous. The first, third,16 fifth factors17 and sixth factors weigh in

16

While no factor is determinative,”[f]or many courts, the analysis of whether an activity is
abnormally dangerous revolves around factor (c), whether the activity can be made safe through
the exercise of reasonable care.” Fletcher, 129 F.Supp.2d at 1261. Plaintiffs make the conclusory
statement that “[a]ll risk of a release and exposure to Defendants’ waste cannot be eliminated even
had Defendants exercised reasonable care in the handling, transport or disposal of their waste.”
Amended complaint, ¶204. However, when the amended complaint is read in its entirety it is
apparent that, at least with respect to the non-MMHF defendants, plaintiffs are challenging not
what defendants do, but how they do it. See Fletcher,129 F.Supp.2d at 1261 (“As one court
explained, ‘if an activity can be performed safely with ordinary care, negligence serves both as an
adequate remedy for injury and a sufficient deterrent to carelessness’ and the imposition of strict
liability is unnecessary.”) (quoting Chaveriat v. Williams Pipe Line Co., 1994 WL 583598, at *5
(N.D.Ill. Oct.18, 1994). They have acknowledged that they are not claiming that the drilling of a
well or the operation of a coal plant is an abnormally dangerous activity, Doc. #386, p.13, and have
not alleged any basis, factual or legal, for concluding that transporting either fly ash or waste fluids
is an ultrahazardous activity per se.
17

Plaintiffs do not challenge the location of the oil and gas wells or assert facts
demonstrating that the Plant was improperly located. Their conclusory assertion that, “[a]s a
result of the location of the AESSP plant . . . the release of CCW/Fly Ash has occurred and is
occurring within and across the Class Area,” Doc. #315, ¶ 110, is insufficient to show that the
Plant’s activity was “inappropriate to the place where it was carried on,” seven miles from
Bokoshe.
15

defendants’ favor,18 resulting in the conclusion that the AES defendants group, the oil
producers and the truckers are not engaged in activities warranting the imposition of strict
liability.
As plaintiffs’ strict liability claims are based on the disposal of fly ash and fluid waste
at the MMHF Facility and the court has concluded that Oklahoma law would limit the
imposition of strict liability in these circumstances to the group operating/owning the MMHF
Facility, plaintiffs’ strict liability claims against all but the MMHF defendants will be
dismissed with prejudice.
Medical Monitoring
Defendants assert that plaintiffs have failed to allege physical injuries and “Oklahoma
law has not recognized medical monitoring as a remedy for plaintiffs without presently
identifiable personal injuries.” Doc. #353, p. 26. Plaintiffs concede that Oklahoma law does
not allow a remedy for medical monitoring in the absence of an existing disease or physical
injury. They claim, though, that since they have alleged “they have suffered physical injury
from their exposure to Defendants’ CCW and PFW,” they “are entitled to pursue damages
such as the costs of necessary future medical expenses which include monitoring.” Doc.
#368, pp. 29-30.
18

The Plant and wells have value in terms of the generation of electrical power, employment,
and tax revenues. See generally Roth v. NorFalco, LLC, 2010 WL 1754618, at *9 (M.D.Pa. April
29, 2010) (“ For example, an oil well may not be considered abnormally dangerous in Texas or
Oklahoma because of the importance the oil industry has to the local economy, whereas the same
oil well in Indiana or California might be found abnormally dangerous because it is a lesser
industry in those areas.”),citing Restatement (Second) Torts § 520, Comment on Clause (f), aff’d,
Roth v. Norfalco LLC, 651 F.3d 367 (3d Cir. 2011).
16

While plaintiffs do allege they have “suffer[ed] physical ailments consistent with
disclosures and warnings set forth on MSDS,”19 amended complaint, ¶199, including
“respiratory conditions, such as asthma and bronchial and nasal infections, and skin and eye
irritations,” id., there are no allegations of physical injury stemming from the oil and gas
drilling fluids.20 Once physical injuries are established, plaintiffs will be allowed to seek
necessary future medical expenses, which may include monitoring on an individual basis.
Assuming it is proper to challenge a requested remedy in a motion to dismiss, defendants’
motions will be granted insofar as plaintiffs seek to establish a medical monitoring fund.
Fly Ash Truckers
The fly ash truckers are alleged to have transported coal to the Plant and/or fly ash
from it to the MMHF Facility. The first problem with the claims asserted against this group
of defendants is that plaintiffs lump them all together, making no effort to distinguish
between the individual trucking companies. They do not explain the particular role any
trucking company alleged played in the dispersal of fly ash.
The second problem is that plaintiffs fail to allege facts demonstrating how the fly ash
truckers were negligent – what they specifically did that was wrong -- or that provide a basis
for them to be sued under any other theory of liability. In the amended complaint plaintiffs

19

Plaintiffs allege that the Plant was required to publish Material Safety Data Sheets
(“MSDS”). Amended complaint, ¶129.
20

Plaintiffs’ assertion that “[w]ithin the Class Area, there have been and continue to be
significant concentrations of cancer victims,” amended complaint, ¶199, is wholly inadequate to
demonstrate personal injuries resulting from defendants’ alleged conduct.
17

allege that fly ash is transported to dump sites within the Class Area by trucks which follow
a common route through populated areas and, “[a]s a result of the location of the AESSP
plant, the Haul Route and the CCW/Fly Ash dump sites, the release of CCW/Fly Ash has
occurred and is occurring within and across the Class Area.” Amended complaint, ¶ 110.21
This and other similar conclusory statements clearly are insufficient to state a claim of any
type against the fly ash truckers. The only specific facts pleaded linking the trucking
companies to the release of fly ash are found in the “MMHF and Regulatory NonCompliance” section of the amended complaint, where plaintiffs allege that “fugitive dust
generated by dump trucks dumping fly ash on the ground” was observed by regulators at the
disposal facility. Id. at ¶ 140; see id. at ¶162(e) (“Particulate matter was being blown into
the air while the ash trucks were unloading . . . .”).22 However, nowhere is it asserted that
the truckers bear responsibility for the ash being blown into the air, instead of, or in addition
to, MMHF. According to the amended complaint, the ODEQ cited MMHF/TUR for the
fugitive fly ash, e.g. id. at ¶¶ 140, 142-44, and, a report issued after ODEQ performed an air
quality full compliance evaluation of the MMHF Facility in April 2009, quoted in the
amended complaint, attributed fault for the fugitive fly ash to MMHF:

21

There are a few other general allegations attributing the spread of fly ash to the Fly Ash
truckers. See e.g., amended complaint, ¶ 81 (plaintiffs allege that the “CCW/Fly Ash Defendants”
have violated state law by allowing fugitive dust to become airborne and pollute the air without
taking reasonable precautions to prevent or minimize the pollution); id. at ¶123 (“CCW/Fly Ash
released during . . .loading, hauling and dumping is carried into the Class Area by winds . . . .”),
22

There is another general reference in the amended complaint to coal combustion waste
“escap[ing] from the transport trucks . . . .,” but it is too general and conclusory to support a claim
against the fly ash trucking defendants. Amended Complaint, ¶99.
18

The fly ash unloading operation is not controlled at this time and does not pass
through a stack. Other facilities that unload dry, dusty material contain the
unloading operation in a building with dust controls. Therefore it is reasonable
for the fly ash unloading operation at MMHF to be passed through a stack or
other equivalent opening. If this Disposal Facility operated according to the
industry standard, emissions coming from the Disposal Facility would not be
considered fugitive in nature . . . .
Amended complaint, ¶160.
Elsewhere plaintiffs allege that because the Plant did not have a fly ash disposal
facility on-site, the AES defendants had to transport the waste to a disposal facility and had
an obligation to protect the public from fugitive fly ash during transport and disposal. Id.
at ¶¶126-27. However, no similar duty or other basis for liability is asserted against the fly
ash truckers. Although plaintiffs argued during the hearing on defendants’ initial motions
to dismiss, that the trucking companies failed to cover their trucks while moving the fly ash,
resulting in it being spewed out as they were moving between the Plant and the MMHF
Facility, no allegations to that effect were included in the amended complaint. See Doc.
#313, p. 70. No facts are pleaded explaining how fly ash allegedly escaped either while it
was being loaded on the trucks at the Plant or in transit.
As the court has determined that the fly ash truckers cannot be held strictly liable for
the release of fly ash into the air or water, and plaintiffs have failed to allege any facts that
demonstrate that this group of defendants, in transporting the fly ash, unlawfully,
intentionally or negligently injured plaintiffs, all plaintiffs’ claims against the fly ash truckers
will be dismissed.
Fluid Waste Truckers
19

Minimal discussion is needed with respect to plaintiffs’ claims against the fluid waste
truckers. The court has rejected the assertion that the fluid waste truckers can be held strictly
liable for merely transporting the oil and gas production waste fluids to the MMHF Facility,23
and there are no facts pleaded in the amended complaint upon which they could be held
liable to plaintiffs for any other claim that is asserted. All plaintiffs’ claims against the fluid
waste truckers will be dismissed.
Oil Producers Defendants
Plaintiffs have pleaded that the Oklahoma Corporation Commission issued a permit
to the MMHF Facility that allowed it to accept “produced water” with specified limitations
from oil and gas wells. They allege each oil producer defendant sent unauthorized waste
fluids from its wells to the Facility for disposal, which have contaminated surface and
groundwater in the Class Area. They seek to recover for “personal injuries, property
damages and harm to their community and environment,” amended complaint, ¶59, and claim
that defendants have polluted the surface waters of “Doe Creek, Buck Creek, and the Poteau
River, as well as Class Area ponds, lakes, and other surface water impoundments owned or
used by the Plaintiffs and Putative Class Members,” and “caused contaminants to be released
into . . . underground drinking water sources.” Id. at ¶74, 65.
The oil producers initially argue that plaintiffs’ assertion that they generated waste

23

Although there were restrictions as to the fluids it could accept, the MMHF Facility was
authorized by the Oklahoma Corporation Commission to accept “Produced Water.” Amended
complaint, ¶¶ 168, 170, 175, 177.
20

fluids is not enough to state a claim against them. The court would agree if that was all
plaintiffs alleged. However, they also have pleaded that each oil producer defendant sent
drilling waste to a disposal facility that was not authorized to receive at least some of the
fluids. Plaintiffs have alleged sufficient facts to demonstrate, for purposes of the motions to
dismiss, that the oil producers had a duty to insure that the waste generated by their oil and
gas wells was disposed of properly and breached that obligation.
The oil producers next contend plaintiffs have failed “to allege a nexus between any
fluid allegedly generated from an XTO facility and harm to any Plaintiff.” Doc. #350, p. 13.
Plaintiffs have, albeit barely, sufficiently met this requirement, also. At this time they only
have to allege a connection, not prove it.
What plaintiffs have not done, though, is make specific allegations of harm to their
persons or property. As XTO Energy Inc. (“XTO”) asserts, plaintiffs allege no facts
showing “exactly what harms they allegedly suffered” or how the alleged contamination
“affected the individual Plaintiff’s specific property.”

Doc. #350, pp. 15,16.

XTO

recognizes that plaintiffs have alleged that “2009 EPA inspections allegedly documented that
produced wastewater was discharged from the MMHF Site to ‘waters of the United States,’
and that the total soluble salts exceeded drinking water standards.”24 Id. at p. 16. However,
they contend, and the court agrees, that plaintiffs have “not allege[d] facts to support that

24

Plaintiffs allege that in 2009“[t]esting of the water [by the EPA] demonstrated that the
water was polluted and toxic . . . .,” yet they fail to specify what water was tested and whether any
testing has been done since then. Amended complaint, ¶189.
21

‘waters of the United States’ are on their land or that their drinking water is contaminated.”
Id. General assertions of plaintiffs’ “reasonabl[e] concerns” are not enough. See Amended
complaint, ¶¶194-96. As XTO correctly notes, plaintiffs have not pleaded facts that “show
that any individually named Plaintiff has come into contact with any [contaminated fluids]
. . . that has caused him or her to suffer any specific injury.” Doc. #350. p. 18. They also
have not alleged any loss in property values or other property damage resulting from the fluid
waste.
As with much of the amended complaint, plaintiffs make generalized, conclusory
assertions of their claimed injuries. While, based on the allegations made, it is not
improbable that the named plaintiffs individually sustained personal injuries or property
damage as the result of the allegedly contaminated water, see e.g., amended complaint, ¶¶
120-21, plaintiffs have not pleaded sufficient facts demonstrating those losses to make it past
a Rule 12(b)(6) motion.25 This deficiency in the amended complaint precludes plaintiffs from
stating any claim against the oil producer defendants. Plaintiffs will be granted leave to file
within fifteen days a supplement to their amended complaint that cures this pleading gap, if
they can do so. The court will then determine whether plaintiffs have sufficiently pleaded
that they personally sustained injuries as the result of the oil producers’ alleged conduct or
whether further briefing is needed to assist in making that determination.
25

In their briefs some defendants have discussed allegations in the amended complaint which
they believe may be an attempt to state a conspiracy claim. Plaintiffs have not pleaded a conspiracy
claim. The court also does not have to address, at this time, plaintiffs’ assertion in their response
that defendants are jointly and severally liable for any damages sustained. The joint and several
doctrine apportions, rather than creates, liability.
22

AES Defendants
The AES defendants contend plaintiffs’ claims against them fail because their release
of coal combustion products at the Plant is pursuant to permits issued by the ODEQ and
plaintiffs have not alleged that those releases caused them any injury. They also assert
plaintiffs have failed to allege any factual basis for holding them liable for releases that
allegedly occurred when the fly ash was in transit or after it arrived at the MMHF Facility.
Having disregarded the generalizations and extraneous material in the amended
complaint, the court concludes plaintiffs have sufficiently alleged, again barely, all but the
injury or damage element of the claims they assert against the AES defendants based on the
operation of the Plant. See e.g., ¶¶ 99-100. However, plaintiffs have not pleaded a factual
basis for holding the AES defendants responsible for any injuries resulting from the
transportation of the fly ash to, or its disposal at, the MMHF Facility. As was discussed
earlier in conjunction with plaintiffs’ claims against the fly ash truckers, no facts are pleaded
regarding any alleged releases when the coal combustion waste was in transit. Plaintiffs also
have not alleged the AES defendants were aware of problems with the Facility, that
unauthorized coal combustion waste was sent there from the Plant or any other facts that
would support a claim against the AES defendants for something that happened after the coal
combustion waste arrived at the MMHF Facility.26
26

Plaintiffs’ general, conclusory assertions to the effect that “Defendants, including their
agents and/or employees, knew or in the exercise of reasonable care should have known, that their
operations, actions and omissions would result and were resulting in the release, escape and
migration of toxic, hazardous, harmful and deleterious substances,” amended complaint, ¶221, are
insufficient to demonstrate that the AES defendants were aware of any improper or illegal conduct
23

Plaintiffs’ allegations regarding damages resulting from the fly ash also are
insufficient. They are granted fifteen days to supplement their amended complaint with
allegations that plead facts identifying specific injuries or property damage suffered by
specific plaintiffs. The court will then determine whether plaintiffs have met their pleading
burden or whether further briefing is needed to assist in making that determination.
The AES defendants also contend that plaintiffs’ requests for injunctive relief are
preempted. However, because the preemption argument does not extend to plaintiffs’ claims,
but rather the relief that is sought, it is premature. The AES defendants may reassert the
defense subsequently, if appropriate.
MMHF Defendants
With the exception of their failure to plead injury adequately, plaintiffs have satisfied
their pleading burden against the MMHF defendants. Plaintiffs will have fifteen days to
correct that pleading deficiency.
Specific challenges made by various defendants to some of plaintiffs’ claims follow.
Trespass
Defendants Chesapeake Operating, Inc., Petrohawk Operating Co., Seeco, Inc. and
Ross Explorations, Inc. (the “Chesapeake defendants”) argue that plaintiffs’ trespass claims
fail because they have not pleaded facts demonstrating “that the defendant possessed
trespassory intent.” Doc. #365, p. 29. The defendants contend that “[w]hile a defendant

of the MMHF defendants.
24

need not have intended to commit trespass, it must at least have intended to enter (or cause
the entry) onto the plaintiff’s property.” Id. at p. 29. They cite no Oklahoma authority and
the law appears to be to the contrary, as the intent required is “an intent to do the act that
results in the trespass.” Craig v. City of Hobart, 2010 WL 680857, at *3 (W.D. Okla. Feb.
24, 2010). Plaintiffs essentially claim that the producer defendants intended to have
unauthorized waste fluids taken to, and disposed of at, the MMHF Facility. That is sufficient
to allege a trespassory intent. Plaintiffs’ trespass claims will not be dismissed for the reasons
urged by the Chesapeake defendants.
Negligence per se
Defendants assert that plaintiffs’ negligence per se claims fail because the
environmental statutes and regulations relied upon were intended to protect the public
welfare, not support private actions for personal injury. Plaintiffs fail to address this
argument and thereby confess defendants’ motions as to this issue. See LcvR.7.1(c).
Plaintiffs’ negligence per se claims will be dismissed with prejudice.
Unjust enrichment
Defendants argue that plaintiffs’ unjust enrichment is barred because they have an
adequate remedy at law. While plaintiffs are not entitled to a double recovery for the same
injuries, they are entitled to pursue their unjust enrichment claims as alternative claims.
Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1030 (10th Cir. 2007); see Krug
v. Helmerich & Payne, Inc., 2013 OK 104, ___ P.3d ___, ___ (2013) (“The long-standing
rule in Oklahoma is that a plaintiff may not pursue an equitable remedy when the plaintiff
25

has an adequate remedy at law.”). Contrary to the argument made by some of the oil
producer defendants, the court concludes plaintiffs have sufficiently pleaded that the
producer defendants sustained a pecuniary benefit as the result of their alleged improper
disposal of the drilling waste fluids – defendants were “save[d] the expense of properly
disposing of the hazardous and solid waste.” Amended complaint, ¶236.
Nuisance
Some of the oil producer defendants argue that they cannot be held liable for nuisance
because they lacked control over the “alleged nuisance-causing instrumentality” – the
MMHF pit. Doc. #353, p. 26. However, defendants have not demonstrated that, under
Oklahoma law, plaintiffs cannot recover from the oil producers for nuisance. Defendants
rely principally on two distinguishable cases from New Jersey and Rhode Island and do not
adequately address the question of whether they could be held liable for having “contributed”
to the nuisance. See Restatement (Second) of Torts § 840E. Defendants’ request to dismiss
plaintiffs’ nuisance claims will be denied.
Class Claims
One of the oil producer defendants challenges the class claims. Assuming plaintiffs’
supplement to their amended complaint includes allegations of particular injuries to particular
plaintiffs from the fluid waste, then the class claims will be sufficiently pleaded to withstand
dismissal at this time. However, class certification of any claims will occur only if the court
is satisfied, after a “rigorous analysis,” that the requirements of Rule 23(a) have been met.
Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).
26

Motion to Strike
Defendant BP America Production Company (“BP”) requests an order striking
references in the amended complaint to the Resource Conservation and Recovery Act and
related federal regulations. The motion will be denied as the court does not find that “the
challenged allegations have no possible relation or logical connection to the subject matter
of the controversy [or] may cause some form of significant prejudice to one or more of the
parties to the action.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1382, at 436-41 (3d ed. 2004).27
Conclusion
While the court recognizes the seriousness of plaintiffs’ allegations, it cannot ignore
their failure to plead sufficient facts to support many of their claims. The court referenced
specific problems with the complaint at the hearing on the last set of motions to dismiss, yet
plaintiffs have done little to correct the obvious deficiencies. Therefore, while plaintiffs will
be allowed to supplement their amended complaint as directed, no further amendments will
otherwise be permitted. Further delays to allow plaintiffs yet another opportunity to satisfy
the federal pleading standard are not warranted. This case was filed over two years ago and

27

Despite their allegations in the amended complaint of defendants’ violations of numerous
federal and state environmental statutes and regulations, plaintiffs have stated in their amended
complaint that they “do not seek recovery pursuant to Federal or State administrative and
regulatory enactments.” Amended complaint, ¶58. Some defendants express concern that plaintiffs,
having failed to comply with the notice requirement of the Resource Conservation and Recovery Act
(“RCRA”,) are nonetheless attempting to “bring RCRA claims quietly through the back door
cloaked as state common-law negligence claims.” Doc. #353, p. 20. This they will not be allowed
to do.
27

the complaint has been amended twice.
Accordingly, plaintiffs’ strict liability claims against all but the MMHF defendants
are dismissed with prejudice. Plaintiffs’ claims against the trucking companies – both the
coal/coal combustion waste and oil and gas drilling fluid waste – are dismissed. Plaintiffs’
negligence per se claims also are dismissed with prejudice. BP America Production
Company’s motion to strike is denied.
A decision as to whether plaintiffs’ claims against the remaining defendants ( the AES
defendants, the MMHF defendants and the oil producers) should be dismissed will be made
after review of plaintiffs’ supplement to their amended complaint.
IT IS SO ORDERED.
Dated this 8th day of January, 2013.

28