Allen et al v. Halliburton Company et al
Filing
92
ORDER denying 64 defendant Halliburton Energy Services, Inc.'s Motion and Brief in Support of Summary Judgment Based on Plaintiffs' Failure to Show Legally Cognizable Injury (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 7/2/2015. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMANDA ALEXANDER, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
HALLIBURTON COMPANY,
)
HALLIBURTON ENERGY SERVICES, )
INC., and SAIC ENERGY,
)
ENVIRONMENT & INFRASTRUCTURE, )
LLC,
)
)
Defendants.
)
MITCHELL L. McCORMICK, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
KRAIG BICKERSTAFF, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1343-M
Case No. CIV-11-1272-M
Case No. CIV-11-1305-M
FRANK D. ELDRIDGE, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
ROBIN L. BOOTH, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
HARMEN ARLEN MAY, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
LESLIE T. CAMPBELL, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1306-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1308-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1309-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1311-M
2
EVELYN BERNICE SOUTHERLAND,
Plaintiff,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
TERRY CHEEK, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
STEPHEN G. JONES, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
BRUCE WILMES, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1312-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-13-116-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1322-M
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-1323-M
3
GLYNN ALLEN, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY
SERVICES, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-13-715-M
ORDER
Before the Court is defendant Halliburton Energy Services, Inc.’s (“HESI”) Motion and Brief
in Support of Summary Judgment Based on Plaintiffs’ Failure to Show Legally Cognizable Injury,
filed April 24, 2015. On May 27, 2015, the parties filed a Stipulation on Scope of Defendant’s
Motion for Summary Judgment Regarding Cognizable Injury. On May 29, 2015, plaintiffs filed
their responses, and on June 11, 2015, HESI filed its reply. Based upon the parties’ submissions,
the Court makes its determination.
I.
Introduction
From the mid-1960s until 1991, HESI cleaned missile motor casings for the United States
Department of Defense and its contractors on a portion of its Osage Road facility near Duncan,
Oklahoma (“Site”). Plaintiffs allege that, as a result of those operations, the groundwater at the Site
became contaminated with perchlorate1, which has since migrated offsite and into the private water
wells of numerous area residents. HESI does not contest the fact that this has occurred. In August
1
The main component of rocket fuel is ammonium perchlorate, which is a salt. The salt
dissolves in water. Perchlorate affects the uptake of iodine by the thyroid. See August 2011 LAND,
Perchlorates in Duncan Ground Water, attached as Exhibit 6 to HESI’s motion for summary
judgment.
4
2011, HESI entered into a Consent Order with the Oklahoma Department of Environmental Quality
requiring investigation and remediation at the Site.
In 2008, the United States Environmental Protection Agency (“EPA”) issued an Interim
Drinking Water Health Advisory for Perchlorate (“EPA Health Advisory”) of 15 ppb2 in drinking
water. Health advisories “establish non-regulatory concentrations of drinking water contaminants
at which adverse health effects are not anticipated to occur over specific exposure durations (one
day, ten days, a subchronic period, several years, and a lifetime)” and “serve as informal technical
guidance to assist Federal, State and local officials, and managers of public or community water
systems in protecting public health when emergency spills or contamination situations occur.” EPA
Health Advisory at 1, attached as Exhibit 5 to HESI’s motion for summary judgment. Additionally,
health advisories “are not legally enforceable Federal standards and are subject to change as new
information becomes available.” Id. The EPA issued the EPA Health Advisory “to assist state and
local officials in advance of a final regulatory determination.” Id.
Plaintiffs commenced the above-referenced actions seeking compensation and other relief
for injuries to their properties, loss of use and enjoyment of their properties, personal annoyance,
inconvenience, aggravation, mental anguish, emotional distress, and discomfort, and other related
harms caused by perchlorate that has migrated from the Site. Plaintiffs assert claims under a number
of different legal theories, including negligence, nuisance, and trespass. Certain plaintiffs are
owners of properties that do not currently suffer from perchlorate groundwater contamination (“noncontaminated property plaintiffs”); other plaintiffs are owners of properties that currently suffer from
2
Parts per billion, or ppb, is a measure of very low concentrations of a substance in water,
soil, and other media.
5
perchlorate groundwater contamination, but the extent of the contamination varies among the
plaintiffs. HESI now moves this Court for summary judgment as to the non-contaminated property
plaintiffs and as to those plaintiffs whose properties currently suffer from low levels of perchlorate,
specifically levels below 15 ppb, the EPA Health Advisory level (“low level contaminated property
plaintiffs”).3
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
3
The parties have stipulated that HESI is not challenging the sufficiency of individual
testimony of plaintiffs regarding the impacts that the disclosure of contamination had on plaintiffs’
lives. See Stipulation on Scope of Defendant’s Motion for Summary Judgment Regarding
Cognizable Injury.
6
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
HESI asserts that certain plaintiffs are unable, as a matter of law, to establish a legally
cognizable injury. Specifically, HESI contends that the non-contaminated property plaintiffs’ claims
fail for lack of standing. HESI further contends that the low level contaminated property plaintiffs
cannot show an actionable, legally cognizable injury because their well water is within the level that
the EPA has determined is perfectly safe to drink. Finally, HESI contends that the claims of certain
allegedly “currently impacted” plaintiffs fail for lack of proof because their groundwater has never
been tested for perchlorate or it has been tested and the results show perchlorate at levels below
background.
A.
Standing
To establish Article III standing, a plaintiff must show that he has “suffered an ‘injury in
fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (internal quotations and citations omitted). HESI asserts that the non-contaminated
property plaintiffs are seeking in these cases to recover for future injuries they will suffer when, and
if, the perchlorate migrates to their properties. HESI, therefore, contends that these plaintiffs must
show that their injuries are imminent and certainly impending in order to have standing to bring their
claims and that these plaintiffs have not made the requisite showing. Plaintiffs assert that they have
injuries that have already occurred; thus, their injuries are actual, concrete injuries. Plaintiffs,
therefore, contend that any argument regarding whether their injuries are “imminent” is irrelevant.
7
The Court has previously found that no actual physical invasion of property, i.e.,
contamination of property, is required to state a claim for nuisance. See March 31, 2014 Order in
McCormick, et al. v. Halliburton Co., et al., CIV-11-1272-M, at 5. The Court further found:
that a claim for interference with loss of use and enjoyment of
property based upon threatened contamination of a plaintiff’s
underground water is not barred as a matter of law. The Court finds
that whether a plaintiff could maintain such a claim would be a fact
specific determination. Specifically, whether such a claim could be
maintained would depend on facts addressing the reasonableness of
the alleged loss of use and enjoyment, including, but not limited to,
how close the contamination is to a plaintiff’s property, the direction
the contaminated groundwater is moving, the uses of the specific
property, etc.
Id. at 5-6. Having reviewed the parties’ submissions, and the complaints in the above-cases, the
Court finds that the non-contaminated property plaintiffs are alleging a claim for interference with
loss of use and enjoyment of property based upon threatened contamination of their underground
water. Further, the Court finds that the non-contaminated property plaintiffs are not seeking relief
for future injuries but are seeking relief for current and past injuries from this loss of use and
enjoyment. Thus, the Court finds HESI’s argument regarding the non-contaminated property
plaintiffs’ failure to show their injuries are imminent and certainly impending, an argument that only
applies to future damages, misses the mark.4 Additionally, the Court finds that the non-contaminated
property plaintiffs’ alleged current and past injuries from their alleged loss of use and enjoyment are
actual, concrete injuries and the non-contaminated property plaintiffs have standing to pursue their
claims.
4
As HESI’s arguments regarding plaintiffs’ experts basing their predictions on the false
assumption that no remediation efforts would be made and offering no opinion as to what the level
of contamination on these properties will be in the future also only relate to the issue of standing
based upon future injuries, the Court finds these arguments also miss the mark.
8
Accordingly, the Court finds that HESI is not entitled to summary judgment as to the claims
of the non-contaminated property plaintiffs on the basis of standing.
B.
Contamination levels below EPA Health Advisory
HESI contends that the low level contaminated property plaintiffs have no legally cognizable
claim because the groundwater levels of perchlorate at these properties are below the 15 ppb level
set forth in the EPA Health Advisory. HESI asserts that an overwhelming majority of courts have
held there is no actionable injury where a chemical is present at or below the safe level set by the
regulatory agency responsible for determining what levels of that substance adequately protect
human health. Having carefully reviewed all of the cases cited by HESI, the Court finds that HESI’s
assertion is an overstatement of the law. A majority of the cases cited by HESI are clearly
distinguishable from the instant cases, and there is no clear majority ruling that private parties, as
opposed to public water suppliers, have no legally cognizable claim if the level of contamination is
below the safe level set by the regulatory agency responsible.
Additionally, the EPA Health Advisory at issue in these cases is “not [a] legally enforceable
Federal standard[]”. See EPA Health Advisory at 1. Further, it is “subject to change as new
information becomes available.” Id. Finally, the EPA issued the EPA Health Advisory “to assist
state and local officials in advance of a final regulatory determination.” Id. (emphasis added).
Accordingly, due to the interim, non-regulatory nature of the EPA Health Advisory, the Court finds
that the EPA Health Advisory cannot serve as any groundwater contamination standard by which
to judge whether a plaintiff has a legally cognizable claim.
Further, under the Oklahoma Environmental Quality Code, pollution is defined in pertinent
part as “the release of any liquid, gaseous or solid substance into the environment in quantities
9
which are or will likely create a nuisance or which render or will likely render the environment
harmful or detrimental or injurious to public health, safety or welfare. . . .” Okla. Stat. tit. 27A, §
2-1-102(12). Additionally, Oklahoma statutorily defines nuisance, in pertinent part, as follows: “[a]
nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission
either: First, Annoys, injures or endangers the comfort, repose, health, or safety of others; . . . .”
Okla. Stat. tit. 50, § 1. In the cases at bar, plaintiffs have submitted evidence that groundwater
levels of perchlorate below the 15 ppb level set forth in the EPA Health Advisory do create a health
hazard.5 Specifically, plaintiffs have submitted evidence from their experts regarding the health
hazards of perchlorate at levels lower than 15 ppb and have referenced regulatory actions of several
states that have set perchlorate standards at levels much lower than 15 ppb. Based upon this
evidence, the Court finds that there is a genuine issue of material fact as to whether perchlorate at
levels lower than 15 ppb endangers the health of others.
Accordingly, the Court finds that HESI is not entitled to summary judgment as to the claims
brought by the low level contaminated property plaintiffs.
C.
Property-specific test results
HESI contends that property-specific test results are necessary to determine whether any
given plaintiff can recover on their contamination-based claims. The cases cited by HESI, however,
do not specifically require property-specific test results but only require reliable evidence of
contamination. Plaintiffs have presented expert testimony regarding the contamination level on
5
In a large number of the cases cited by HESI, the plaintiffs did not present any evidence that
lower levels of the contaminant created health hazards.
10
plaintiffs’ properties.6 Accordingly, the Court finds that HESI is not entitled to summary judgment
on this basis.
IV.
Conclusion
For the reasons set forth above, the Court DENIES HESI’s Motion and Brief in Support of
Summary Judgment Based on Plaintiffs’ Failure to Show Legally Cognizable Injury.
IT IS SO ORDERED this 2nd day of July, 2015.
6
Any reliability determinations regarding this expert testimony will be made in relation to
specific Daubert motions that have been filed.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?