State, feds file lawsuit against ExxonMobil | Arkansas Blog

Thursday, June 13, 2013

State, feds file lawsuit against ExxonMobil

Posted By on Thu, Jun 13, 2013 at 11:05 AM

McDaniel (left) and Thyer
  • McDaniel (left) and Thyer

This morning's joint press conference was, as we suspected, about the Mayflower oil spill. Arkansas Attorney General Dustin McDaniel and U.S. Attorney Chris Thyer announced moments ago that they had filed a joint lawsuit against ExxonMobil.

The complaint seeks civil penalties and injunctive relief, Roby Brock tweets. It asks Exxon to pay for damages related to the spill under of the federal Clean Water Act and the Arkansas Water and Air Pollution Control Act.

Part of the lawsuit falls under the Arkansas Hazardous Waste Management Act, too. Because, McDaniel said, according to the Arkansas Department of Environmental Quality, Exxon is storing illegal contaminants near Mayflower in fracking tanks at a site on Highway 36 operated by XTO Energy, an ExxonMobil subsidiary that's been in the area for some time drilling for natural gas in the Fayetteville Shale. Teresa Marks, director of ADEQ, said that her agency is concerned that the contaminants are being stored for a duration longer than permitted for hazardous waste.

"One would expect that the attitude wouldn't be to ask for forgiveness rather than permission," McDaniel said.

But Thyer said, "The position we're taking right now is that we don't know if there was negligence."

According to McDaniel, ExxonMobil has been communicating with the state, but it hadn't responded fully to questions from state agencies. That, in part, prompted the lawsuit. McDaniel said he hoped the discovery process would reveal how much oil spilled and what caused the rupture in the pipeline.

According to Thyer, damages of $1,100 per barrel are standard under the Clean Water Act, but can be as much as $4,300 per barrel if negligence can be proven. Because of that disparity and because there's still some question over the precise number of barrels that leaked following the March 29 rupture, the amount the lawsuit is seeking in damages is still to be determined.

David Koon will update this item directly.

UPDATE: The lawsuit,which you can read in full here, was filed today in the U.S. District Court for the Eastern District of Arkansas against ExxonMobil Pipeline Company (the operator of the Pegasus Pipeline) and Mobil Pipe Line Company (the owner of the pipeline). It seeks "civil penalties and injunctive relief" under the Clean Water Act, including payment for response costs and damages, while citing changes to the color, odor, pH, dissolved oxygen levels and toxicity of the water of the "cove" area of Lake Conway.

The lawsuit also claims that petroleum-contaminated waste that has been collected during cleanup operations is being improperly stored at a site at 322 Highway 36 in Conway, including liquid waste and oil-coated soil, wood chips, pavement, concrete and other debris. At the press conference, ADEQ director Teresa Marks said the liquid waste was being stored in "frack tanks."

From the lawsuit: "ADEQ notified Defendants on May 1, 2013 that the Highway 36 site waste removal was to be completed within seven (7) days of the letter in accordance with the Waste Disposal Plan... Defendants failed to have the waste removed from the Highway 36 site by May 8, 2013, and the waste is still present on the site."

In addition to violations of the Clean Water Act, the lawsuit claims ExxonMobil is in violation of the Arkansas Hazardous Waste Management Act of 1979, and both the water and air sections of the Arkansas Water and Pollution Control Act, with both sections allowing for a civil penalty of up to $10,000 per day, per violation.

The lawsuit asks a judge to grant civil penalties under the Clean Water Act ($1,100 per barrel if the discharge is ruled accidental, or $4,300 per barrel if the spill was "the result of gross negligence or willful misconduct), injunctive relief under the CWA, penalties of $25,000 per day per violation under the Arkansas Hazardous Waste Management Act, penalties of $10,000 per day, per violation of the water provisions of the Arkansas Water and Air Pollution Control Act, and $10,000 per day, per violation of the air provision of the Arkansas Water and Air Pollution Control Act.

The lawsuit also seeks a declaratory judgment stating that ExxonMobil is liable for oil removal costs and damages under the Oil Pollution Act, and "other relief as the Court deems just and proper."

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