McCormick et al v. Halliburton Company et al

Filing 43

ORDER granting 19 Halliburton's Motion to Dismiss plaintiffs' RCRA Claim and dismissing plaintiffs' RCRA Claim (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 4/3/2012. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MITCHELL MCCORMICK, et al.,
Plaintiffs,
vs.
HALLIBURTON COMPANY and
HALLIBURTON ENERGY SERVICES,
INC.,
Defendants.

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Case No. CIV-11-1272-M

ORDER
Before the Court is defendants Halliburton Company and Halliburton Energy Services, Inc.’s
(collectively, “Halliburton”) Motion to Dismiss Plaintiffs’ RCRA Claim, filed November 28, 2011.
On December 30, 2011, plaintiffs filed their response, and on January 18, 2012, Halliburton filed
its reply. Based on the parties’ submissions, the Court makes its determination.
I.

Introduction
Plaintiffs have sued Halliburton, alleging ten causes of action arising out of Halliburton’s

operations at a facility on Osage Road in Duncan, Oklahoma (the “Site”). The Site was used to
conduct various research and development activities, including cleaning U.S. Department of Defense
missile motor casings and recycling stainless steel fuel rod racks from a Nebraska nuclear power
plant. Halliburton began using the Site in 1962 and continued disposal activities until approximately
1991. The primary hazardous waste that was disposed of at the Site was ammonium perchlorate.

According to Halliburton, continuing environmental monitoring conducted by Halliburton
recently revealed the existence of perchlorate in groundwater.1 Halliburton states that it immediately
disclosed this finding to the Oklahoma Department of Environmental Quality (“ODEQ”) and
notified adjacent residents by holding two public meetings and providing bottled water and
connection to public water supplies. On August 11, 2011, Halliburton entered into a Consent Order
(“Consent Order”) with the ODEQ to investigate and remediate potential environmental impacts
from the Site. The Consent Order includes detailed requirements for Halliburton’s submission of
investigation reports, work plans, and quarterly reports for remediation at the Site. Plaintiffs assert
that the Consent Order is inadequate to address the contamination at the Site.
On October 31, 2011, plaintiffs filed the instant action, alleging contamination of the
groundwater at and around the Site. In Count IX of their Complaint (“RCRA Claim”), plaintiffs
invoke Section 6972(a)(1)(B) – the endangerment clause – of the RCRA’s citizen suit provision,
claiming that Halliburton contributed to or is contributing to “the past or present handling, storage,
treatment, transportation, or disposal of any solid waste which may present an imminent and
substantial endangerment to health or the environment.” Complaint at ¶ 76. In relation to their
RCRA Claim, plaintiffs request the Court to require Halliburton to remediate the alleged
contamination at and around the Site.

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Plaintiffs allege Halliburton has been aware of perchlorate in the groundwater for some
time. Plaintiffs further allege that for decades Halliburton has violated the law by failing to comply
with the Resources Conservation and Recovery Act’s (“RCRA”) rules and regulations and ODEQ
directives.
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II.

Discussion
Halliburton moves to dismiss plaintiff’s RCRA Claim pursuant to Federal Rule of Civil

Procedure 12(b)(1) because the ODEQ maintains primary jurisdiction over the issues in this claim.2
The common law doctrine of primary jurisdiction allows a court to have flexible discretion to refer
a matter, which extends beyond the conventional experience of judges, to the specialized
competence of an administrative agency which, like the ODEQ in this case, is exercising jurisdiction
over the same matter.
Courts that have addressed the issue of primary jurisdiction have considered the following
factors in making their decision: “(1) whether the court is being called upon to consider factual
issues outside the conventional experience of judges; (2) whether defendant could be subject to
conflicting orders; (3) whether agency proceedings have already begun; (4) whether the agency has
shown diligence in resolving the issue; and (5) the type of relief requested.” B.H. v. Gold Fields
Mining Corp., 506 F. Supp. 2d 792, 803 (N.D. Okla. 2007). See also Davies v. Nat’l Coop. Refinery
Ass’n, 963 F. Supp. 990, 997-998 (D. Kan. 1997); Friends of Santa Fe Cnty. v. LAC Minerals, Inc.,
892 F. Supp. 1333, 1349-50 (D.N.M. 1995). Having carefully considered the above factors, the
Court finds that it should abstain from hearing plaintiffs’ RCRA Claim.
First, the Court finds that plaintiffs’ RCRA Claim unquestionably raises issues that are
outside the conventional experience of judges and that fall within the special expertise of the ODEQ.
The primary issues under plaintiffs’ RCRA Claim concern the extent of the threat posed by the
perchlorate in the groundwater at and around the Site, whether immediate remediation is required

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Halliburton asserts a number of other bases to dismiss plaintiffs’ RCRA Claim; however,
in light of the Court’s finding that it should abstain from exercising jurisdiction over plaintiffs’
RCRA Claim, the Court will not address any of these other bases.
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to protect health or the environment, and what type of remedy is best suited to the Site. These are
all matters within the specialized knowledge of the ODEQ, which is charged by state law with the
responsibility for investigating hazardous waste problems in Oklahoma and for protecting human
health and the environment. See Oklahoma Environmental Quality Act, Okla. Stat. tit. 27A, § 1-1101 et seq. While this Court recognizes that the RCRA clearly contemplates federal judicial
intervention in such matters, the Court finds that in the instant case, this Court’s involvement would
likely cause further delay of the investigation of the Site and would result in substantial duplication
of the efforts of the ODEQ.
Second, the Court finds that there would be a great potential for conflicting orders if this
Court were to determine an investigatory and remediation plan independently of the ODEQ. It is
likely that the ODEQ and this Court would approve of different work plans and/or remediation
plans, subjecting Halliburton to conflicting remediation responsibilities and potentially delaying
remediation. The Court finds the proper balance of judicial efficiency and administrative expertise
in a specialized area such as environmental regulation favors abstention under this factor.
Third, Halliburton and the ODEQ have entered into the Consent Order pursuant to which
Halliburton is obligated to cooperate with the ODEQ in investigating and remediating the potential
threat to health and the environment from the contamination at the Site. Specifically, pursuant to
the Consent Order, Halliburton is currently investigating/characterizing and remediating the Site and
surrounding areas that may have been impacted under ODEQ oversight. “It is axiomatic that the
advisability of invoking primary jurisdiction is greatest where the issue is already before the
agency.” Friends of Santa Fe Cnty., 892 F. Supp. at 1350 (quoting Miss. Power & Light Co. v.
United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir. 1976)).

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Fourth, while plaintiffs contend that the ODEQ has not been diligent in the past with respect
to overseeing Halliburton’s actions at the Site, the Court finds nothing that would indicate that the
ODEQ has been anything but diligent with respect to its actions once Halliburton notified it in April
2011 of the perchlorate in the groundwater. For example, the ODEQ has already required
Halliburton to enact early action measures to protect public health and the environment.
Finally, plaintiffs are seeking injunctive relief through their RCRA Claim. “Primary
jurisdiction will often be invoked when a plaintiff seeks injunctive relief, because there is the
greatest likelihood that a court’s order will interfere with administrative agency’s proceedings.”
Gold Fields Mining Corp., 506 F. Supp. 2d at 805 (internal citations omitted).

The Court,

therefore, finds that this factor weighs in favor of abstaining from hearing plaintiffs’ RCRA Claim.
Accordingly, based upon the above factors, the Court finds that it should abstain from
exercising jurisdiction under the RCRA in order to permit the ODEQ to continue its investigation,
supervision, and remediation of the Site without the prospect of conflicting directive from this Court
as to how the contamination should be remedied.
III.

Conclusion
For the reasons set forth above, the Court GRANTS Halliburton’s Motion to Dismiss

Plaintiffs’ RCRA Claim [docket no. 19] and DISMISSES plaintiffs’ RCRA Claim.
IT IS SO ORDERED this 3rd day of April, 2012.

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