UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …ftpcontent.worldnow.com/griffin/NEWSon6/PDF/1311/bokoshe... · 2013-11-12 · 6:12-cv-00457-JH Document 315 Filed in ED/OK on 08/20/13

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF OKLAHOMA

BILL REECE, DIANE REECE, ) HERMAN TOLBERT, BENNETT ) TANKSLEY, SUSAN HOLMES, and ) CHARLES TACKETT, individually, ) and as representatives for those seeking ) redress for damages, ) Case No. 6:12-CV-00457-JH ) Plaintiffs, ) ) CLASS ACTION vs. ) ) JURY TRIAL DEMANDED AES CORPORATION, a Delaware ) corporation, ) Attorneys’ Lien Claimed ) AES SHADY POINT, Inc., a Delaware ) corporation, ) ) AES SHADY POINT, LLC, a Delaware ) limited liability company, ) ) MMHF, LLC, an Oklahoma Limited ) Liability Company, a/k/a Making Money ) Having Fun, LLC, Clean Hydro Reclamation, ) LLC, and Clean Hydro Evacuation, LLC, ) ) THUMBS UP RANCH, LLC, an Oklahoma ) limited liability company, ) ) DARYL J. JACKSON, individually, and dba ) DARYL JACKSON TRUCKING, ) ) KEVIN J. JACKSON, an individual, ) ) KENNETH JACKSON, an individual, ) ) CHAD JACKSON, an individual, ) ) GCI MINING, an Oklahoma corporation, ) a/k/a George Colliers, Inc., ) ) MOUNTAIN MINERALS, Inc., ) a Delaware corporation, )

6:12-cv-00457-JH Document 315 Filed in ED/OK on 08/20/13 Page 1 of 105

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BRAZIL CREEK MINERALS, INC., ) an Oklahoma corporation, ) ) FARRELL-COOPER MINING COMPANY, ) an Arkansas corporation, ) ) ASH GROVE RESOURCES, LLC, ) a Kansas limited liability company, ) ) MARINE COAL SALES COMPANY, ) a Delaware corporation, ) ) HUNTER RIDGE COAL COMPANY, a ) Delaware corporation, a/k/a Anker Energy ) Corporation, ) ) INTERNATIONAL COAL GROUP, LLC, ) a Delaware limited liability company, ) ) COAL CREEK MINERALS, LLC, ) a Delaware limited liability company, ) ) MCCORKLE TRUCK LINE, INC., ) an Oklahoma corporation, ) ) STAR BULK, a/k/a PX TRANSPORTATION, ) INC., a Texas corporation, ) ) R&J TRUCKING, INC., ) an Oklahoma corporation, ) ) SEECO, INC., a/k/a SWN PRODUCTION ) COMPANY, SOUTHWESTERN ENERGY ) PRODUCTION COMPANY, INC., and ) SOUTHWESTERN OIL & GAS COMPANY, ) an Arkansas corporation, ) ) XTO ENERGY, INC., ) a Delaware corporation, ) ) STEPHENS PRODUCTION COMPANY, ) an Arkansas corporation, ) ) CHESAPEAKE OPERATING, INC., ) an Oklahoma corporation, ) )


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PETROHAWK OPERATING COMPANY, ) a Texas corporation, ) ) HANNA OIL & GAS COMPANY, ) an Arkansas corporation, ) ) HIGHLAND OIL & GAS, LLC, ) a Delaware limited liability company, ) ) CHOLLA PETROLEUM, INC., ) a Texas corporation, ) ) BP AMERICA PRODUCTION CO., a ) Delaware corporation, ) ) ROSS PRODUCTION COMPANY a/k/a ) ROSS PRODUCTION CO., MCCORD ) OIL COMPANY and ROSS ) EXPLORATIONS, INC., an Arkansas ) corporation, ) ) SHIELDS OPERATING, INC., an Arkansas ) corporation, ) ) SEDNA ENERGY, INC., an Arkansas ) corporation, ) ) HOGBACK EXPLORATION, INC., ) an Arkansas corporation, ) ) BISHOP TRUCKING, ) an Oklahoma corporation, ) ) BEAR PRODUCTIONS, INC., ) an Oklahoma corporation, ) ) GRACO FISHING & RENTAL TOOLS, INC., ) an Oklahoma corporation, ) ) TXD TRANSPORT, LP, ) a foreign limited partnership, ) ) MIKE KREBBS CONSTRUCTION, INC., ) an Oklahoma corporation, ) ) BIG MAC TANK TRUCKS, LLC, a/k/a )


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OKLAHOMA BIG MAC TANK TRUCKS, ) LLC, a Delaware limited liability company, ) ) B&B GAS WELL SERVICES, LLC, ) an Oklahoma limited liability company, ) ) BEAR TRANSPORTS, LLC, ) an Oklahoma limited liability company, ) ) Defendants. )

CORRECTED FIRST AMENDED COMPLAINT

COMES NOW Plaintiffs, Bill Reece, Diane Reece, Herman Tolbert, Bennett Tanksley,

Susan Holmes and Charles Tackett on behalf of themselves and on behalf of all similarly situated

persons, file this Corrected First Amended Complaint, for the purpose of including full caption

only, for claims against Defendants, state and allege as follows:

NATURE OF THE ACTION

1. This lawsuit is filed as a Class Action. It is filed on behalf of the named

Plaintiffs, Bill Reece, Diane Reece, Herman Tolbert, Bennett Tanksley, Susan Holmes and

Charles Tackett (“Plaintiffs” or “Putative Class Representatives”), and other similarly situated

persons (collectively the “Putative Class Members”) who seek to recover for the pollution and

contamination of the environment in which they live, work and recreate and for injuries and the

real and immediate threat of injuries to their person and property, which have been, or are being,

caused by the presence of, or the exposure to, coal combustion waste (“CCW/Fly Ash,”

specifically defined below) and/or produced fluid waste (“PFW,” specifically defined below).

2. As detailed below, Defendants, individually or in concert, have generated,

transported, disposed, released, or permitted the escape of hazardous and nonhazardous waste

which has polluted and contaminated a geographic area of LeFlore County, Oklahoma identified

for purposes of this Class Action as the “Class Area” (specifically described below).


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3. The Class Area is, for purposes of this First Amended Complaint (“FAC”),

described as that 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;

c. 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:

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.

4. This action is being brought against Defendants to recover for injuries suffered by

the Plaintiffs and all Putative Class Members as a direct result of Defendants’ abnormally

dangerous transport and disposal activities, negligence, gross negligence, negligence per se,

noxious and harmful nuisance, pollution and contamination, trespass, diminution of property


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values, personal injury, unjust enrichment, and violations of the public trust caused by

Defendants’ actions and violations of Oklahoma law.

5. Plaintiffs and Putative Class Members seek various forms of relief including, but

not limited to, injunctive relief in the form of prohibiting additional waste material from being

transported to and disposed of in any open CCW/Fly Ash disposal pit within the Class Area;

clean-up of the existing waste material and the contaminated air, soil and waters of the Class

Area; monitoring of air quality, soil quality and water quality on the named Plaintiffs’ property

and on the property of the Putative Class Members and within the Class Area; medical

monitoring of the Plaintiffs and Putative Class Members; and compensation to Plaintiffs and the

Putative Class Members for the various forms of damages to property and person and disruption

to the enjoyment of life and property caused by Defendants’ actions and omissions, either

individually or collectively.

JURISDICTION AND VENUE

6. This is an action to recover damages and injunctive relief on behalf of the

Plaintiffs and Putative Class Members as a result of Defendants’ improper handling, transport,

storage or disposal of CCW/Fly Ash and PFW resulting in trespass, nuisance and injuries to

person, property, environment and community.

7. The acts, omissions and damages pertinent to this action all occurred in LeFlore

County, State of Oklahoma.

8. This action was originally filed in LeFlore County District Court on October 6,

2011. Plaintiffs filed an Amended Petition on October 4, 2012 joining, among others, the PFW

Defendants.


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9. On November 5, 2012, XTO Energy, Inc. removed this action to federal court

pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332 (d).

10. On December 5, 2012, Plaintiffs moved for remand. Plaintiffs’ Motion was

denied on March 2, 2013.

PARTIES

Plaintiffs and Putative Class Representatives

11. Plaintiffs, Bill Reece, Diane Reece, Herman Tolbert, Bennett Tanksley, Susan

Holmes and Charles Tackett are residents of Bokoshe, Oklahoma, LeFlore County.

12. The named plaintiffs are multigenerational residents of Bokoshe, some of whom

trace their lineage back to pre-statehood. With the exception of Susan Holmes, each of the

named Plaintiffs has raised their families in Bokoshe.

13. The environmental, health, aesthetic, cultural and recreational interests of

Plaintiffs and Putative Class Members have been, are being and will be adversely affected by

Defendants’ contamination of the air, land and waters of the Class Area.

14. Plaintiffs’ concerns encompass the protection and restoration of the Class Area’s

resources and environment, including the air, land, surface and ground waters. Plaintiffs, their

families, and Putative Class Members use, enjoy and seek to protect and restore the air, land and

water on and into which Defendants dump their CCW/Fly Ash and PFW. Plaintiffs also seek

compensation for the damage and imminent threat of damage to their person and property on

behalf of themselves and the Putative Class Members.

CCW/Fly Ash/Fly Ash Defendants

15. Defendant AES Corporation is incorporated in the State of Delaware with its

principal place of business in Arlington, Virginia. AES Corporation owns and operates coal-


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fired electrical generating power plants internationally, throughout the United States and in

Oklahoma, including the coal-fired electrical generating power plant in LeFlore County. In

2012, AES reported energy generation operations in 23 countries across five continents. AES

Shady Point is the only coal-fired power generating plant operated by AES in Oklahoma. Upon

information and belief, AES owns and operates only three other exclusively coal-fired power

generating plants in the United States which are in Maryland, Pennsylvania and Hawaii.

16. AES Corporation is vertically integrated with subsidiary companies which own

and operate the coal-fired electrical generating power plant in LeFlore County (AES Shady

Point, Inc. and AES Shady Point, LLC, collectively referred to as “AESSP”); a coal company

which provides coal to AESSP (Coal Creek Minerals, Inc.); and the trucking company

(Mountain Minerals, Inc.), which hauls the hazardous and solid waste to offsite CCW/Fly Ash

dump sites.

17. Defendant AES Shady Point, Inc. (“AESSP”) is incorporated in the State of

Delaware and is a wholly-owned subsidiary of AES Corporation. AESSP’s principal place of

business is LeFlore County, State of Oklahoma. AESSP operates the coal-fired electrical

generating plant located in LeFlore County.

18. Defendant AES Shady Point, LLC (“AESSP”) is a Delaware limited liability

company and is a wholly owned subsidiary of AES Corporation and AES Shady Point, Inc.

AESSP’s principal place of business is LeFlore County, State of Oklahoma.

19. GCI Mining (“GCI,” aka George Colliers, Inc.) is an Oklahoma corporation

whose business includes the transport of coal to the AESSP plant and the transport and disposal

of CCW/Fly Ash from the AESSP plant to the MMHF Dump Site or other CCW/Fly Ash

disposal sites within the Class Area.


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20. Mountain Minerals, LLC (“Mountain Minerals”) is an indirect wholly owned

subsidiary of the AES Corporation, a Delaware limited liability company, whose business

includes the transport of coal to the AESSP plant and the transport and disposal of CCW/Fly Ash

from the AESSP plant to the MMHF Dump Site or other CCW/Fly Ash disposal sites within the

Class Area.

21. Brazil Creek Minerals, Inc. (“BCM”) is an Oklahoma corporation whose business

includes the transport of coal to the AESSP plant and the transport and disposal of CCW/Fly Ash

from the AESSP plant to the MMHF Dump Site or other CCW/Fly Ash disposal sites within the

Class Area.

22. Farrell-Cooper Mining Company (“FCMC”) is an Arkansas corporation with its

principal place of business in Fort Smith, Arkansas. FCMC’s business includes the transport of

coal to the AESSP plant and the transport and disposal of CCW/Fly Ash from the AESSP plant

to the MMHF Dump Site or other CCW/Fly Ash disposal sites within the Class Area.

23. Ash Grove Resources, LLC (“Ash Grove”) is a Kansas limited liability company

with its principal place of business in Topeka, Kansas. Ash Grove’s business includes the

transport of coal to the AESSP plant and the transport and disposal of CCW/Fly Ash from the

AESSP plant to the MMHF Dump Site or other CCW/Fly Ash disposal sites within the Class

Area.

24. Marine Coal Sales Company (“Marine Coal”) is a Delaware corporation with its

principal place of business in Carmel, Indiana. Marine Coal’s business includes the transport of

coal to the AESSP plant and the transport and disposal of CCW/Fly Ash from the AESSP plant

to the MMHF Dump Site or other CCW/Fly Ash disposal sites within the Class Area.


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25. Hunter Ridge Coal Company (“Hunter Ridge”) is a Delaware corporation

formerly known as Anker Energy Corporation with its principal place of business in

Morgantown, Virginia. Hunter Ridge’s business includes the transport of coal to the AESSP

plant and the transport and disposal of CCW/Fly Ash from the AESSP plant to the MMHF Dump

Site or other CCW/Fly Ash disposal sites within the Class Area.

26. International Coal Group, LLC (“International Coal”) is a Delaware limited

liability company with its principal place of business in Ashland, Kentucky. International Coal’s

business includes the transport of coal to the AESSP plant and the transport and disposal of

CCW/Fly Ash from the AESSP plant to the MMHF Dump Site or other CCW/Fly Ash disposal

sites within the Class Area.

27. Coal Creek Minerals, LLC (“Coal Creek”) is a Delaware limited liability

company with its principal place of business in LeFlore County, Oklahoma. Coal Creek is a

wholly owned subsidiary of AES Corporation whose business includes the transport of coal to

the AESSP plant and the transport and disposal of CCW/Fly Ash from the AESSP plant to the

MMHF Dump Site or other CCW/Fly Ash disposal sites within the Class Area.

28. McCorkle Truck Line, Inc. (“McCorkle”) is an Oklahoma corporation whose

business includes the transport and disposal of CCW/Fly Ash from the AESSP plant to the

MMHF Dump Site or other CCW/Fly Ash disposal sites within the Class Area.

29. Star Bulk is a Texas corporation also known as PX Transportation, Inc. with its

principal place of business in Midlothian, Texas. Star Bulk’s business includes the transport and

disposal of CCW/Fly Ash from the AESSP plant to the MMHF Dump Site or other CCW/Fly

Ash disposal sites within the Class Area.


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30. R&J Trucking, Inc. (“R&J”) is an Oklahoma corporation whose business includes

the transport and disposal of CCW/Fly Ash from the AESSP plant to the MMHF Dump Site or

other CCW/Fly Ash disposal sites within the Class Area.

MMHF Defendants

31. Defendant Making Money Having Fun, LLC (“MMHF” aka MMHF, Clean

Hydro Reclamation, LLC, and Clean Hydro Evacuation, LLC) is an Oklahoma limited liability

company. MMHF owns and operates an open unlined pit as a commercial CCW/Fly Ash and

PFW pit located in LeFlore County. MMHF was formed as a limited liability company on

December 4, 1997. Upon information and belief, AES began illegally dumping, storing and

disposing of CCW/Fly Ash at the Dump Site on the TUR property at this time.

32. Defendant Thumbs Up Ranch, LLC (“TUR”) is an Oklahoma limited liability

company. TUR owns the land on which MMHF operates the CCW/Fly Ash and PFW pit located

in LeFlore County. TUR is a 750-acre ranch located in LeFlore County, Oklahoma, in the

immediate vicinity of the Town of Bokoshe. A portion of the TUR ranch property located one

mile south of Bokoshe has been and is now used as a commercial storage site and open pit

disposal site for CCW/Fly Ash generated at the AESSP plant.

33. Daryl J. Jackson is a resident of LeFlore County, State of Oklahoma. Upon

information and belief, Daryl Jackson is an owner and principal of TUR, MMHF and, upon

information and belief, also operates as Daryl J. Jackson, d/b/a Daryl Jackson Trucking.

34. Kevin J. Jackson is a resident of LeFlore County, State of Oklahoma. Upon

information and belief, Kevin Jackson is an owner and principal of TUR and MMHF.

35. Kenneth Jackson is a resident of LeFlore County, State of Oklahoma. Upon

information and belief, Kenny Jackson is an owner and principal of TUR and MMHF.


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36. Chad Jackson is a resident of LeFlore County, State of Oklahoma. Upon

information and belief, Chad Jackson is an owner and principal of TUR and MMHF.

PFW Defendants

37. SEECO, Inc. (“SEECO”) is an Arkansas corporation with its principal place of

business in Houston, Texas. SEECO, a wholly owned subsidiary of Southwestern Energy

Corporation, is an owner of oil and gas wells, and engages in drilling, completion, production

and operation of oil, gas and disposal wells located in Oklahoma and Arkansas. In the course of

its oil and gas well drilling and completion, SEECO generates, stores and disposes its PFW,

including PFW disposed of at the MMHF Dump Site. Upon information and belief, SEECO

disposed, or caused to be disposed, PFW at the MMHF Dump Site from the following wells:

SEECO WELLS COUNTY STATE CLEMONS 11-09 1-8H CLEBURNE AR GREEN BAY PACKAGING 10-11 6-20H29 CLEBURNE AR GREEN BAY PACKAGING 10-11 7-20H CLEBURNE AR GREEN BAY PACKAGING 10-11 8-20H29 CLEBURNE AR WAGNER 10-11 3-31H CLEBURNE AR ANADARKO 09-16 3-11H3 CONWAY AR BOWMAN 09-14 AUSTIN ROAD A 1-8H5 CONWAY AR BOWMAN 09-14 AUSTIN ROAD A 2-8H CONWAY AR BOWMAN 09-14 AUSTIN ROAD F 1-9H4 CONWAY AR COLVERT 08-15 2-23H14 CONWAY AR DESALVO 08-15 4-2H1 CONWAY AR FLEMING 08-17 3-15H CONWAY AR GOTTSPONER 08-16 2-29H CONWAY AR GREEN BAY PACKAGING 08-17 1-9H8 CONWAY AR GREEN BAY PACKAGING 08-17 2-9H CONWAY AR GREEN BAY PACKAGING 09-15 1-19H CONWAY AR GREEN BAY PACKAGING 09-16 1-13H CONWAY AR GREEN BAY PACKAGING 09-16 1-19 CONWAY AR HALBROOK 09-16 1-18H CONWAY AR HALBROOK 09-16 2-18H CONWAY AR KELLEY 09-17 1-18H CONWAY AR NICHOLSON, BEN 08-16 1-8H CONWAY AR NOLEN 09-14 AUSTIN ROAD B 2-5H8 CONWAY AR NOLEN 09-14 AUSTIN ROAD B 3-5H CONWAY AR NOLEN 09-14 AUSTIN ROAD B 4-5H CONWAY AR O'NEAL 09-16 1-16H CONWAY AR O'NEAL 09-16 4-16H CONWAY AR PETERSON 09-15 3-12H1 CONWAY AR RILEY 08-15 1-25H CONWAY AR


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SEECO WELLS COUNTY STATE ROSSI 09-14 1-31H CONWAY AR ROWELL 08-17 4-14H15 CONWAY AR STARK, GARY 09-15 4-14H CONWAY AR WARD-BOWMAN 09-14 AUSTIN ROAD E 1-8H5 CONWAY AR WARD-BOWMAN 09-14 AUSTIN ROAD E 1-9H CONWAY AR WARD-BOWMAN 09-14 AUSTIN ROAD E 2-8H4 CONWAY AR WARD-BOWMAN 09-14 AUSTIN ROAD E 2-9H CONWAY AR WELLS 09-15 3-13H CONWAY AR WELLS 09-15 4-13H CONWAY AR WELLS 09-15 5-13H CONWAY AR WILLIAMS, LAWRENCE 08-17 2-22H23 CONWAY AR WILSON 08-15 4-10H3 CONWAY AR WOOTEN 08-14 1-19H CONWAY AR WOOTEN 08-14 2-19H CONWAY AR WOOTEN 08-14 3-19H18 CONWAY AR WOOTEN 08-14 4-19H18 CONWAY AR LINN, LINDA 08-12 1-23H FAULKNER AR CRAWFORD, L B 2 FRANKLIN AR WILLIAMSON 1 LATIMER OK HARDGRAVE 1-11H LOGAN OK HARDGRAVE 2-11H LOGAN OK HARDGRAVE 4-11H LOGAN OK HOFFMAN 1-24 LOGAN OK HUNT 2-33H LOGAN OK MELTON 1-22D LOGAN OK NEHUS 5-10H LOGAN OK USA 1-12D13 LOGAN OK USA 1-13H18 LOGAN OK USA 1-18 LOGAN OK USA 1-19H LOGAN OK USA 1-22 LOGAN OK USA 2-24 LOGAN OK USA 4-4H LOGAN OK USA 6-24H19 LOGAN OK USA 1-28 LOGAN OK USA 6-25 2-9H LOGAN OK USA 7-24 1-17H LOGAN OK USA 7-25 1-26H LOGAN OK USA 7-25 1-29H LOGAN OK WILLIAMS 1-12 LOGAN OK WILLIAMS-USA 1-12H14 LOGAN OK WYSSBROD 1-25 LOGAN OK USA 1-29 MONTGOMERY AR USA 1-12 PITTSBURG OK ESSINGER-SMITH 09-18 2-20H19 POPE AR FELKINS 09-18 1-14H POPE AR HILL, THOMAS 09-18 1-22H POPE AR AMMANN-KEELING 10-15 4-24H VAN BUREN AR CLARK 10-15 1-11H VAN BUREN AR CLARK 10-15 2-11H VAN BUREN AR CONN 09-14 1-34H VAN BUREN AR CONN 09-14 2-34H VAN BUREN AR


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SEECO WELLS COUNTY STATE GRADDY, BETTY TRUST 10-12 2-15H VAN BUREN AR GREEN BAY PACKAGING 10-14 3-9H VAN BUREN AR GREEN BAY PACKAGING 10-16 1-16H VAN BUREN AR GREEN BAY PACKAGING 10-16 3-22H26 VAN BUREN AR GREEN BAY PACKAGING 10-16 4-22H VAN BUREN AR GREEN BAY PACKAGING 10-16 7-22H26 VAN BUREN AR HANDY 10-12 5-18H VAN BUREN AR HANDY 10-12 6-18H VAN BUREN AR HUTSON 11-14 1-33H VAN BUREN AR HUTSON 11-14 2-33H VAN BUREN AR JENNETTE FAMILY TRUST 09-14 4-2H34 VAN BUREN AR KIDD 10-15 2-2H11 VAN BUREN AR KIDD TRUST 10-13 2-6H VAN BUREN AR KNOWLES 10-16 3-26H22 VAN BUREN AR LINEBARGER 10-15 1-7H VAN BUREN AR LINEBARGER 10-15 2-7H VAN BUREN AR MCCLAIN 10-15 1-5H VAN BUREN AR MEAZLE 10-14 3-18H19 VAN BUREN AR MEAZLE 10-14 4-18H VAN BUREN AR PENNINGTON, DON 10-12 2-21H28 VAN BUREN AR REYNOLDS 10-13 1-27H VAN BUREN AR ROTHWELL 09-12 1-16H VAN BUREN AR SISSON, LESTER 10-14 1-27H VAN BUREN AR SISSON, LESTER 10-14 2-27H VAN BUREN AR SWOFFORD 10-12 6-32H VAN BUREN AR WARD 10-14 1-31H VAN BUREN AR WARD 10-14 2-31H VAN BUREN AR WHISENHUNT 09-14 1-1H VAN BUREN AR WHISENHUNT 09-14 3-1H VAN BUREN AR WHISENHUNT 10-12 1-10H VAN BUREN AR WOLFE 10-14 1-29H VAN BUREN AR WOLFE 10-14 2-29H VAN BUREN AR WOLFE 10-14 3-29H33 VAN BUREN AR WOOD, CHARLES 09-13 1-6H VAN BUREN AR WOOD, CHARLES 09-13 3-6H VAN BUREN AR WOOD, CHARLES 09-13 4-6H VAN BUREN AR WOOD, MARK 10-14 3-25H24 VAN BUREN AR WOOD, MARK 10-14 4-25H24 VAN BUREN AR WOOD, MARK 10-14 5-25H VAN BUREN AR WOOD, MARK 10-14 6-25H VAN BUREN AR BILLY 7-8 3-11H10 WHITE AR FEATHERSTON, STEVE 09-07 2-22H WHITE AR FROUD 09-06 3-7H WHITE AR HARRALSON 09-06 2-10H WHITE AR HARRIS, MARY 09-06 3-11H2 WHITE AR HARRIS, MARY 09-06 6-11H WHITE AR PRATT 09-07 1-14H WHITE AR RUSSELL 10-06 3-35H WHITE AR WOOD & PAYNE 10-07 3-35H26 WHITE AR DAVIS 1-7 YELL AR GILILLAND 2-12H11 YELL AR GOMEZ 2-14H YELL AR


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SEECO WELLS COUNTY STATE PARISH 2-12 YELL AR PET SOLUTIONS LLC 1-11 YELL AR ROBINSON TRUST 1-30 YELL AR SKK 2-13 YELL AR SKK 3-12 YELL AR TAYLOR 1-12D YELL AR

38. XTO Energy, Inc. (“XTO”) is a Delaware corporation with its principal place of

business in Fort Worth, Texas. XTO is an owner of oil and gas wells, and engages in drilling,

completion, production and operation of oil, gas and disposal wells located in Oklahoma and

Arkansas. In the course of its oil and gas well drilling and completion, XTO generates, stores

and disposes of PFW, including PFW disposed at the MMHF Dump Site. Upon information and

belief, XTO disposed, or caused to be disposed, PFW at the MMHF Dump Site from the

following wells:

XTO WELLS COUNTY STATE WILSON 2-5H ATOKA OK ALTOM 1-9H CLEBURNE AR EDDINGS 1-29H COAL AR LEMONS 12-25H COAL AR MOWDY 1-27H COAL AR SIDMORE 11-35H COAL AR SIDMORE 1-35 COAL AR SIDMORE 4-35 COAL AR COPSEY 2-12 2-12 CRAWFORD AR ALEXANDER 3-13D FRANKLIN OK ALEXANDER, TOM & FRANK 1 FRANKLIN OK CORONADO 2-22H HUGHES OK MCCLURE 1-16H HUGHES OK MCCLURE 1-17H HUGHES OK PALE MOON SWD 1-31 HUGHES OK WALTER 2-3H HUGHES OK WALTER 2-5H HUGHES OK DELTIC TIMBER COMPANY 2-21H INDEPENDENCE AR BURRUSS 1-12H JACKSON AR MAJOR ROYALTY 3-26 LATIMER OK FLETCHER 2-4 LOGAN AR FLETCHER 3-4 LOGAN AR FRIDDLE 2-3 LOGAN AR FRIDDLE 3-4 LOGAN AR METCALF A 14-1 LOGAN AR ROBBERSON, MARTIN 6-6 LOGAN AR THORPE A 3-22 LOGAN AR TRICKETT 10-10 LOGAN AR


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XTO WELLS COUNTY STATE TRICKETT 17-3 LOGAN AR TRICKETT 18-3 LOGAN AR TRICKETT 19-10 LOGAN AR TURNER UNIT 4-18 LOGAN AR USA 7-25 1-29H LOGAN AR WINTERS, BOBBY 1-18 LOGAN AR AUGUSTON 4-12 PITTSBURG OK AUGUSTSON 4-12 PITTSBURG OK BLACK "A" 8-27H PITTSBURG OK BLACK 3-17H PITTSBURG OK BLACK BIA 19-1 PITTSBURG OK BLEVINS 1-25 PITTSBURG OK BLEVINS 2-9 PITTSBURG OK CHURCHILL 1-26 PITTSBURG OK CHURCHILL 1-26H PITTSBURG OK DILLARD 10-19H PITTSBURG OK DILLARD 11-19H PITTSBURG OK GIBSON 2-3H PITTSBURG OK GILL 1-7 PITTSBURG OK HALL 4-29H PITTSBURG OK HILSEWECK RANCH 1-30H PITTSBURG OK HILSEWECK RANCH 1-9H PITTSBURG OK HOLT "J" 1 PITTSBURG OK HOLT "J" 3 PITTSBURG OK HOLT 5-3 PITTSBURG OK HOLT 6 PITTSBURG OK HOLT 'J' 2 PITTSBURG OK HYDE 6H-24 PITTSBURG OK INVESTOR ROYALTY 8-29H PITTSBURG OK INVESTORS ROYALTY 4-29 PITTSBURG OK JOHN G. BLACK 2-17H PITTSBURG OK JOHNSON ESTATE 8-21H PITTSBURG OK LUCILLE 5-34H PITTSBURG OK LUCILLE 6-34H PITTSBURG OK MCCLUNG 7-15H PITTSBURG OK MITCHELL 1-26H PITTSBURG OK PRUITT 2-32H PITTSBURG OK ROGERS 3-30H PITTSBURG OK SHUMAN 3-23H PITTSBURG OK STEVENS 3M-4 PITTSBURG OK SUNDOWN RANCH 1-18H PITTSBURG OK TIPPIT 2-21H PITTSBURG OK VAUGHN 3-20 PITTSBURG OK WAGEMAN 2-14H PITTSBURG OK GLASS C 10-27 SCOTT AR GRAY 3-24 SCOTT AR MONTGOMERY 12-26 SCOTT AR MONTGOMERY 13-26 SCOTT AR HINKLE 7-28 SEBASTIAN AR HINKLE 8-28 SEBASTIAN AR TUCKER 3-5 SEBASTIAN AR CATES 1 SEQUOYAH OK


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XTO WELLS COUNTY STATE GROVE 1-3H WHITE AR RANSOM 2-23H WHITE AR

39. Stephens Production Company (“SPC”) is an Arkansas corporation with its

principal place of business in Little Rock, Arkansas. SPC is an owner of oil and gas wells, and

engages in drilling, completion, production and operation of oil, gas and disposal wells located in

Oklahoma and Arkansas. In the course of its oil and gas well drilling and completion, SPC

generates, stores and disposes its PFW, including PFW disposed of at the MMHF Dump Site.

Upon information and belief, SPC disposed, or caused to be disposed, PFW at the MMHF Dump

Site from the following wells:

SPC WELLS COUNTY STATE ARNOLD, IVAN 2 CRAWFORD AR MOORE-EAST, J 1 CRAWFORD AR GREIG ESTATE 1 CRAWFORD AR GOOCH, J D 7 CRAWFORD AR BLAKELY, TOM 2 CRAWFORD AR BILLS ESTATE 1 CRAWFORD AR MCCLURE, J O 6 CRAWFORD AR MCCLURE, J O 7 CRAWFORD AR INGRAM, EMMA JEAN 3 CRAWFORD AR GREGORY, ELMER 4 CRAWFORD AR LINCOLN, B M 2 CRAWFORD AR GREGORY, ELMER 6 CRAWFORD AR EMBRY, H E 1 CRAWFORD AR BRYANT, S B 3 CRAWFORD AR DEERING 1 CRAWFORD AR DENT, VIVIAN 5 CRAWFORD AR CRAWFORD COUNTY LEVEE 4 CRAWFORD AR JOYCE, J W 1 CRAWFORD AR WILLMON, J D 5 CRAWFORD AR GUNN, JOHN 4 CRAWFORD AR DENT, VIVIAN 6 CRAWFORD AR GREIG ESTATE 5-32 CRAWFORD AR GREIG ESTATE 2 CRAWFORD AR NORTH BANK 2 CRAWFORD AR WOFFORD, BOYCE 1 CRAWFORD AR TURNER, MAGGIE 6 CRAWFORD AR FONTAINE, D L 1 CRAWFORD AR GREGORY, ELMER 1 CRAWFORD AR FONTAINE, C B 2 CRAWFORD AR STEWARD, GILLIE SMITH 3 CRAWFORD AR GRIFFIN 1 CRAWFORD AR


Page 18 of 105

SPC WELLS COUNTY STATE HOUSE, HAROLD 5 CRAWFORD AR TURNER, MAGGIE 2 CRAWFORD AR GUNN, JOHN 2 CRAWFORD AR WRIGHT-GILL 3-10 CRAWFORD AR GREIG ESTATE 7-5 CRAWFORD AR BILLS ESTATE 2 CRAWFORD AR KIBLER, E L 5 CRAWFORD AR GUNN, JOHN 3 CRAWFORD AR WOFFORD, BOYCE 3 CRAWFORD AR GUNN, JOHN 2 CRAWFORD AR GUNN, JOHN 1 CRAWFORD AR GREGORY, ELMER 5 CRAWFORD AR DENT, VIVIAN 1 CRAWFORD AR GREGORY, ELMER 2 CRAWFORD AR GREGORY, ELMER 3 CRAWFORD AR CRAWFORD COUNTY LEVEE 3 CRAWFORD AR BLAKELY, TOM 3 CRAWFORD AR MCCLURE, J O 5 CRAWFORD AR MOPAC 2-7 FRANKLIN AR BAKER 1-14 FRANKLIN AR SNODGRASS, J S 2 FRANKLIN AR BONNER, IRENE 3-18 FRANKLIN AR MCCLELLAND, G E 4 FRANKLIN AR MOPAC 3-8 FRANKLIN AR MANTOOTH, L S 1 FRANKLIN AR HILLIARD, HOMER 2 FRANKLIN AR HENDRICKSON, S M 3 FRANKLIN AR JONES, J C 3 FRANKLIN AR LONG, C C 1 FRANKLIN AR JONES, J C 4 FRANKLIN AR LONG, JULIA 3-35 FRANKLIN AR DAVIDSON, CARRIE A 2 FRANKLIN AR CARTWRIGHT, RILEY 4 FRANKLIN AR PENDERGRASS, KATE 4 FRANKLIN AR OLIVER, DOW 5-3 FRANKLIN AR HILLARD, HOMER 3 FRANKLIN AR PRIMM, PEARL 2-4 FRANKLIN AR DAVIDSON, CARRIE A 1 FRANKLIN AR DAVIS, FOOTE 2 FRANKLIN AR ERVIN, A T 1 FRANKLIN AR KING, ALLEN W 1 FRANKLIN AR DUNN 3-28 FRANKLIN AR HALL, HOMER 1 FRANKLIN AR PETTIGREW, RUTH 3 FRANKLIN AR FISHER ESTATE, RAS 6 FRANKLIN AR KING, ALLEN W 2 FRANKLIN AR ADAMS, NORBERT 3 FRANKLIN AR EVANS, H L 3 FRANKLIN AR HILLARD, HOMER 1 FRANKLIN AR HILLARD, HOMER 7-36 FRANKLIN AR CASALMAN 3-35 FRANKLIN AR MILAM J L ESTATE 2 FRANKLIN AR


Page 19 of 105

SPC WELLS COUNTY STATE MILAM ESTATE 3 FRANKLIN AR DICKERSON, H C 1 FRANKLIN AR FISHER ESTATE, RAS 2-5 FRANKLIN AR FISHER ESTATE, RAS 3-5 FRANKLIN AR FISHER, RAS 4 FRANKLIN AR HUNTER 4 FRANKLIN AR KING, ALLEN W 3 FRANKLIN AR FREEMAN-SPRAGUE-DUNBAR 1 FRANKLIN AR CLAYTON, J P 1 FRANKLIN AR BRAND ESTATE 1 FRANKLIN AR DAVIS, FOOTE 3 FRANKLIN AR BRADLEY 1-28 FRANKLIN AR ADAMS, NORBERT 2 FRANKLIN AR CARTWRIGHT, RILEY 1 FRANKLIN AR JOHNS, WOODROW 2 FRANKLIN AR MILAM, J L 5 FRANKLIN AR HURRICANE 1 FRANKLIN AR DEAN, DEWEY 1 FRANKLIN AR BUSH ESTATE 1 FRANKLIN AR MCCELLAND, GEORGE E 2 FRANKLIN AR CONLEY, WARREN G 3 FRANKLIN AR HALES 2-22 FRANKLIN AR FREEMAN, FLOYD 3 FRANKLIN AR BOLLINGER 2-20 FRANKLIN AR CONLEY, WARREN 4 FRANKLIN AR CLAYTON 2-5 FRANKLIN AR FISHER ESTATE, RAS 5 FRANKLIN AR FORD ESTATE 4 FRANKLIN AR EVANS, EDWARD C 1 FRANKLIN AR FREEMAN, FLOYD 2 FRANKLIN AR JONES, J C 5 FRANKLIN AR PRIMM, CLYDE 2 FRANKLIN AR DICKERSON 5 FRANKLIN AR BUSH ESTATE 2 FRANKLIN AR PENDERGRASS, KATE 3 FRANKLIN AR CURRIER, ROY 3 FRANKLIN AR CLAYTON 3-5 FRANKLIN AR FISHER ESTATE, RAS 1 FRANKLIN AR WALKER, EUGENE 2 FRANKLIN AR FREEMAN-SPRAGUE-DUNBAR 6 FRANKLIN AR HILLARD, HOMER 5-36 FRANKLIN AR BONNER, IRENE 1 FRANKLIN AR BUSH ESTATE 4 FRANKLIN AR MOPAC 4-8 FRANKLIN AR AVERY 4 HASKELL OK BURGE 3 HASKELL OK CUMMINGS ESTATE 3X HASKELL OK CUMMINGS ESTATE 3 HASKELL OK E O FITZGERALD 1 HASKELL OK EVANS 2 HASKELL OK EVANS 3 HASKELL OK GROSS 2 HASKELL OK


Page 20 of 105

SPC WELLS COUNTY STATE GROSS 3 HASKELL OK READING 1 HASKELL OK ROYE UNIT 1 HASKELL OK JOHNSON 3 JOHNSON OK LANDTHRIP, TAYLOR 1 JOHNSON OK BROWN, ALVIN C 2-16 JOHNSON OK JAMISON, ROBERT 1 JOHNSON OK COBB, B E 1 JOHNSON OK COBB, B E 2 JOHNSON OK COBB, B E 3 JOHNSON OK LANDTHRIP, TAYLOR 3 JOHNSON OK KING, BOYD 2 JOHNSON OK TAYLOR, JAMES M 1 JOHNSON OK SCHWARTZ, NELSON 3 JOHNSON OK LOOPER, VIRGIL 3 JOHNSON OK TAYLOR, JOHNSON 2 JOHNSON OK BROWN, ALVIN C 1 JOHNSON OK HARDGRAVE, BEN 1 JOHNSON OK DYE 10 LATIMER OK DYE 11 LATIMER OK GOLETTO 1 LATIMER OK R.F. ORR (FEE) 27 LATIMER OK BRYAN 1 LEFLORE OK BUTLER 77 LEFLORE OK CARPENTER 1 LEFLORE OK CARPENTER 4-32 LEFLORE OK CARPENTER 6-29 LEFLORE OK FALCONER 2-7 LEFLORE OK FOSTER 95 LEFLORE OK FOX 1 LEFLORE OK GAMMONS 57 LEFLORE OK HOLTON F L 29 LEFLORE OK HOOVER 1 LEFLORE OK L G STROUD 1 LEFLORE OK MCBEE 1 LEFLORE OK R.O.H. 5 LEFLORE OK SCHAUM (AKA FOSTER) 1 LEFLORE OK W.J. ECHOLS 2 LEFLORE OK WOODROW TURMAN 5 LEFLORE OK HALE, ELLIS 2 LOGAN AR COCHRAN 3-4 LOGAN AR COCHRAN 1-4 LOGAN AR FINNEY 1 LOGAN AR BLACK 1 LOGAN AR COCHRAN 2-4 LOGAN AR HOPE 1-16 LOGAN AR LOWE 1 LOGAN AR AUGUSTON 4-12 PITTSBURG OK AUGUSTSON 4-12 PITTSBURG OK NICHOLS 1-27 PITTSBURG OK MOORE, O R 6 SEBASTIAN AR FEDERAL 1-4 SEBASTIAN AR


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SPC WELLS COUNTY STATE MOORE, O R 5 SEBASTIAN AR BUELL RANCH 5 SEBASTIAN AR BOYD 4 SEBASTIAN AR CHAMBERS, JOHN 1-7-2 SEBASTIAN AR COCHRAN, NOLAN 6 SEBASTIAN AR MOORE, O R 7 SEBASTIAN AR MUNICIPAL AIRPORT 2 SEBASTIAN AR MOORE, CHARLES 2 SEBASTIAN AR MOORE, O R 2 SEBASTIAN AR DESOTO 1 SEBASTIAN AR MADDUX 1-26 SEBASTIAN AR WARE, M N 1 SEBASTIAN AR WOODS 1 SEBASTIAN AR BATES, A D 1-28 SEBASTIAN AR SKYLINE FARM 1 SEBASTIAN AR LYONS, S M 3 SEBASTIAN AR BIEKER, GEORGE 4 SEBASTIAN AR RODGERS 7 SEBASTIAN AR TATE, HOWARD 2-4 SEBASTIAN AR FORT 3-17 SEBASTIAN AR FRENCH 6-33 SEBASTIAN AR WATERS, WILMA 2 SEBASTIAN AR BASHAM 4 SEBASTIAN AR MITCHELL 1-4 SEBASTIAN AR ADAMS, LURA M 5D SEBASTIAN AR THOMAS, WAYNE 3 SEBASTIAN AR BOYD, R L 1 SEBASTIAN AR BRYANT, ANNIE V 1 SEBASTIAN AR LYONS, S M 2-19 SEBASTIAN AR LYONS, S M 5 SEBASTIAN AR BASHAM 8 SEBASTIAN AR WARD, FRANCIS 2 SEBASTIAN AR WAKEFIELD, SUSIE 1 SEBASTIAN AR CARDEN, ETHEL 1-8-10 CBM SEBASTIAN AR SMITH, J W 1-36 SEBASTIAN AR WOODS 3 SEBASTIAN AR JOHNSON, H L 7 SEBASTIAN AR MOORE, CHARLES 1 SEBASTIAN AR FREE FERRY ESTATES 4 SEBASTIAN AR MOORE, O R 4 SEBASTIAN AR LYONS, S M 7 SEBASTIAN AR LYONS, S M 9 SEBASTIAN AR TOMLIN 2 SEBASTIAN AR JOHNSON, H L 6 SEBASTIAN AR WARE 3 SEBASTIAN AR JONES, I W 3-9 SEBASTIAN AR BRALEY 1-28 SEBASTIAN AR CASON CROSS 3 SEBASTIAN AR FRENCH 5-33 SEBASTIAN AR EUBANKS, D M 4 SEBASTIAN AR WALKER, RUTH 3 SEBASTIAN AR FRENCH 4-33 SEBASTIAN AR


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SPC WELLS COUNTY STATE WARE 8-32 SEBASTIAN AR WILLIAMS, NANIE 3 SEBASTIAN AR RILEY, MABEL 1 SEBASTIAN AR ARBUCKLE HEIRS 3 SEBASTIAN AR JOHNSON, H L 5 SEBASTIAN AR CORMACK 1 SEBASTIAN AR BROWN, GEORGE 2 SEBASTIAN AR ALLEN, M F F 4 SEBASTIAN AR BREWER, J H 2 SEBASTIAN AR HOBBS, JOHN C 3 SEBASTIAN AR WILLIAMS, NANNIE 5-5 SEBASTIAN AR EUBANKS, D M 5 SEBASTIAN AR COCHRAN, NOLAN 1 SEBASTIAN AR TOMLIN, E C 18 SEBASTIAN AR HARPER, A B 1 SEBASTIAN AR SCHULTZ-TEETERS 1-18 SEBASTIAN AR KELLY 3-36 SEBASTIAN AR OLD GLORY 2-10 SEBASTIAN AR FORT CHAFFEE 4-7 SEBASTIAN AR FERRELL, G W 1-27 SEBASTIAN AR FIRST NATIONAL BANK CORP 1 SEBASTIAN AR GATTIS, GUY 1 SEBASTIAN AR SYNOGROUND 2 SEBASTIAN AR BASHAM 5 SEBASTIAN AR BASHAM 2 SEBASTIAN AR CASON, SABRA C 1-28 SEBASTIAN AR WILLIAMS, BERTHA 1 SEBASTIAN AR ANDREWS, W E 1 SEBASTIAN AR MUNICIPAL AIRPORT 6-35 SEBASTIAN AR CRAIG, E E 1 SEBASTIAN AR YOUNG, CHARLES 2 SEBASTIAN AR COCHRAN, NOLAN 8 SEBASTIAN AR WARE 2 SEBASTIAN AR NICHOLS, J T 9-25 SEBASTIAN AR BASHAM 9 SEBASTIAN AR FREE FERRY ESTATES 6D SEBASTIAN AR TURNER 1-28 SEBASTIAN AR MUNICIPAL AIRPORT 1-A SEBASTIAN AR BRYANT, ANNIE 2 SEBASTIAN AR BUELL RANCH 6 SEBASTIAN AR FORT CHAFFEE 1 SEBASTIAN AR ROBERTS, JACK 2 SEBASTIAN AR TOMLIN 3 SEBASTIAN AR COX, GAYLON 1 SEBASTIAN AR BIEKER, GEORGE 1 SEBASTIAN AR MUNICIPAL AIRPORT 7-36 SEBASTIAN AR FORT 1-16 SEBASTIAN AR COCHRAN 2 SEBASTIAN AR FORT CHAFFEE 2 SEBASTIAN AR TURNER 3 SEBASTIAN AR MITCHELL 2 SEBASTIAN AR JONES, CECIL 6 SEBASTIAN AR


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SPC WELLS COUNTY STATE BARBOUR, FRED 5 SEBASTIAN AR BASHAM 15 SEBASTIAN AR TOMLIN, E C 19 SEBASTIAN AR BASHAM 16 SEBASTIAN AR FREE FERRY ESTATES 5 SEBASTIAN AR PIGG, DORA 2 SEBASTIAN AR TATE, HOWARD 1 SEBASTIAN AR FREE FERRY ESTATE 1 SEBASTIAN AR BELL UNIT 1 SEBASTIAN AR TOMLIN, E C 20 SEBASTIAN AR JONES, CECIL 4 SEBASTIAN AR WOODS 5 SEBASTIAN AR HOLLAND 4-24 SEBASTIAN AR COCHRAN 7 SEBASTIAN AR SYNOGROUND 3 SEBASTIAN AR DERRICK 1-17 CBM SEBASTIAN AR FORT CHAFFEE 3-7 SEBASTIAN AR FREE FERRY ESTATE 2 SEBASTIAN AR TOMLIN, E C 16 SEBASTIAN AR NELCH 1 SEBASTIAN AR KECK, LINNIE 2 SEBASTIAN AR CASON, SABRA C 4-21 SEBASTIAN AR BASHAM 7 SEBASTIAN AR BUELL RANCH 4 SEBASTIAN AR GATTIS, GUY 2 SEBASTIAN AR CUSTER 1-9 SEBASTIAN AR BASHAM 14 SEBASTIAN AR FORT 2-17 SEBASTIAN AR SKINNER 2 SEBASTIAN AR BROWN 1-26 SEBASTIAN AR BREWER, J H 1 SEBASTIAN AR CONDREN 1 SEBASTIAN AR BASHAM 6 SEBASTIAN AR LYONS, S M 6-19 SEBASTIAN AR BUELL RANCH 3 SEBASTIAN AR FRENCH 1-33 SEBASTIAN AR COCHRAN, NOLAN 9 SEBASTIAN AR DAVIS, RICHARD 2 SEBASTIAN AR BASHAM 3 SEBASTIAN AR JONES, I W 1 SEBASTIAN AR WARD, FRANCIS 1 SEBASTIAN AR BIEKER, GEORGE 3 SEBASTIAN AR BOYD 3 SEBASTIAN AR NICHOLS, J T 8-25 SEBASTIAN AR BRANT 1 SEQUOYAH OK BRANT 1-11 SEQUOYAH OK BRANT 2-11 SEQUOYAH OK CHARLES SMITH 3 SEQUOYAH OK CHARLEY RUSSELL 1 SEQUOYAH OK CHARLEY RUSSELL 4 SEQUOYAH OK CLUCK 1 SEQUOYAH OK CLUCK 2 SEQUOYAH OK


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SPC WELLS COUNTY STATE DUVALL 3 SEQUOYAH OK E E COAN 1 SEQUOYAH OK E. E. COAN 7 SEQUOYAH OK E.E. COAN 10 SEQUOYAH OK E.E. COAN 3 SEQUOYAH OK E.E. COAN 4 SEQUOYAH OK E.E. COAN 6 SEQUOYAH OK E.E. COAN 9 SEQUOYAH OK E.E.COAN 6 SEQUOYAH OK ELLIS COAN 2 SEQUOYAH OK MARIE COAN 1 SEQUOYAH OK MARIE COAN 2 SEQUOYAH OK MATTIE BARNES 1 SEQUOYAH OK ORA BREEDLOVE 1 SEQUOYAH OK ORA BREEDLOVE 3 SEQUOYAH OK ORA BREEDLOVE 4 SEQUOYAH OK REDLAND RANCH 3 SEQUOYAH OK REDLAND RANCH U 1 SEQUOYAH OK REDLAND RANCH UN 1 SEQUOYAH OK BARGER 7-8 2-19H WHITE OK GOMEZ 2-14H YELL OK

40. Chesapeake Operating, Inc. (“Chesapeake”) is an Oklahoma corporation.

Chesapeake is an owner of oil and gas wells, and engages in drilling, completion, production and

operation of oil, gas and disposal wells located in Oklahoma and Arkansas. In the course of its

oil and gas well drilling and completion, Chesapeake generates, stores and disposes of PFW,

including PFW disposed of in the MMHF Dump Site. Upon information and belief, Chesapeake

disposed, or caused to be disposed, PFW at the MMHF Dump Site from the following wells:

CHESAPEAKE WELLS COUNTY STATE ALLEN 24-1H ATOKA OK JENKINS 5-9 ATOKA OK KELLY 1-6H ATOKA OK LEE ROY 1-16 ATOKA OK LRJ 1-17 ATOKA OK MABRAY 1-35 ATOKA OK MCENTIRE 4-3 ATOKA OK MCENTIRE 5-3 ATOKA OK O'BRIEN 1-6 ATOKA OK SMITH 1-15 ATOKA OK SWL 1-18 ATOKA OK TRIPLE "C" 7-1H ATOKA OK VELDA 1-11 ATOKA OK VELDA SMITH 1-2 ATOKA OK VELDA SMITH 2-2 ATOKA OK


Page 25 of 105

CHESAPEAKE WELLS COUNTY STATE WANDA SUE 15-1H ATOKA OK BICKERSTAFF 9-9 1-21H CLEBURNE AR BICKERSTAFF 9-9 2-21H CLEBURNE AR E & W WILDLIFE REFUGE 10-9 1-14H CLEBURNE AR E & W WILDLIFE REFUGE 10-9 2-14H CLEBURNE AR GEO III, LLC 10-9 1-11H CLEBURNE AR GEO III, LLC 10-9 2-11H CLEBURNE AR GLENN, VAN 9-8 2-21H CLEBURNE AR DOWNEN 1-24H COAL AR DOWNEN 1-26H COAL AR ENNIS 2-12 COAL AR FREAS 1-2H COAL AR MCENTIRE 1-14H COAL AR MCINTIRE 1-15 COAL AR WACCAW 1-15H COAL AR WANDA 1-28H COAL AR MERIDETH 7-16 1-2H CONWAY AR MERIDETH 7-16 2-2H CONWAY AR BROWN, E T 8-13 1-32H FAULKNER AR BROWN, E T 8-13 3-32H FAULKNER AR ELMER 8-13 3-31H FAULKNER AR GLOVER, H 8-13 1-26H FAULKNER AR GLOVER, H 8-13 2-26H FAULKNER AR HAMMETT 7-13 1-6H FAULKNER AR HAMMETT 7-13 2-6H FAULKNER AR HAMMETT 7-13 3-6H FAULKNER AR HARDY 7-13 1-5H FAULKNER AR HARDY 7-13 2-5H FAULKNER AR HARGROVE 8-14 2-25H FAULKNER AR REYNOLDS, RAY 8-14 2-36H FAULKNER AR ROBERTS, JIMMY 8-13 3-29H FAULKNER AR ROWLETT LIVING TRUST 8-12 1-18H FAULKNER AR YANCEY 8-13 1-24H FAULKNER AR YANCEY 8-13 2-24H FAULKNER AR COLE 2-36 FRANKLIN AR FOWLER "D" 1 HASKELL OK TATE 1-6 HASKELL OK BONNELL 1-8H HUGHES OK BOYCE 1-26H HUGHES OK BUE 1-5H HUGHES OK BURNS 1-23H HUGHES OK CYPERT 1-3H HUGHES OK D & D 1-14H HUGHES OK D & D PROPERTIES 1-2H HUGHES OK D & D PROPERTIES L.L.C. 1-21H HUGHES OK DOLORES 1-15H HUGHES OK GANN 1-21H HUGHES OK HUFFMAN 1-2H HUGHES OK HUGHES 1 HUGHES OK HULL 1-11H HUGHES OK JENNIFER 1-16H HUGHES OK KENDRICK 1-22H HUGHES OK


Page 26 of 105

CHESAPEAKE WELLS COUNTY STATE KENDRICK 1-23H HUGHES OK LOFTIS 1-2H HUGHES OK MAX 1-8H HUGHES OK NESS 1-1H HUGHES OK PACE 1-8H HUGHES OK PARSONS 1-9H HUGHES OK PHILLIPS 1-16H HUGHES OK REBECCA 1-1H HUGHES OK REEDER 1-26H HUGHES OK SHERRY 1-13H HUGHES OK SHIRLEY 1-15H HUGHES OK WEBSTER 1-11H HUGHES OK WILLIAM 1-34H HUGHES OK WILSON 1-36H HUGHES OK LINGAFELTER 10-5 1-29H JACKSON AR SARRELS 10-5 1-30H JACKSON AR STILL 10-5 1-18H JACKSON AR ZUBER 10-5 1-10H JACKSON AR CINDY 1-21 LATIMER OK CINDY UNIT (CINDY 1-21) 1-21 LATIMER OK DEAN 1-23 LATIMER OK JANKOWSKY 2-28 LATIMER OK MARY 2-34 LATIMER OK PIERCE 2-30 LATIMER OK WEYERHAEUSER 10-22 LATIMER OK WEYERHAEUSER 6-22 LATIMER OK WEYERHAEUSER 7-22 LATIMER OK WEYERHAEUSER 8-22 LATIMER OK ADAMS 1-11H LEFLORE OK LOWERY 2-35 LEFLORE OK REDWINE 1 LEFLORE OK WANDA CLAIBORN (CLAIBORN) 2-17 LEFLORE OK WOODS 1-20 LEFLORE OK PARKS 1-25 LOGAN AR BRIAN 1-17H MCINTOSH OK FISHER 1-11H MCINTOSH OK RANDY 1-18H MCINTOSH OK AGNES 2-18 PITTSBURG OK ANNE 1-21H PITTSBURG OK ARLANDA 1-13H PITTSBURG OK BLACK 3-17H PITTSBURG OK CALM 13-1H PITTSBURG OK CAROL 1-18H PITTSBURG OK CHARLIE 1-28H PITTSBURG OK CHRISTINE 1-13H PITTSBURG OK CUNNINGHAM 1-30H PITTSBURG OK D.L. 2-12H PITTSBURG OK D.L. 3-12H PITTSBURG OK DAVID 2-25H PITTSBURG OK DOLORES 1-4H PITTSBURG OK DONALD LOFTIS 1-4H PITTSBURG OK ED 1-8H PITTSBURG OK


Page 27 of 105

CHESAPEAKE WELLS COUNTY STATE EDDIE 1-8H PITTSBURG OK FINIS 1-25H PITTSBURG OK FREDDY 1-27H PITTSBURG OK FREDERICK 1-27H PITTSBURG OK GLEESE 1-28H PITTSBURG OK GOLDA SMITH 1-35 PITTSBURG OK GRAHAM 1-3 PITTSBURG OK GREEN 1-12H PITTSBURG OK GRIFFIN 3-17H PITTSBURG OK GUY CURRY 1-9 PITTSBURG OK GUY CURRY 2-9 PITTSBURG OK HANNA 1-6H PITTSBURG OK HATRIDGE 1-23H PITTSBURG OK HELEN 1-30H PITTSBURG OK HELEN 1-31H PITTSBURG OK HICKMAN 1-25H PITTSBURG OK HILSEWECK 1-6H PITTSBURG OK HUBBARD 1-4H PITTSBURG OK HYDE 1-8H PITTSBURG OK HYDE 3-24 PITTSBURG OK JANA 1-24H PITTSBURG OK JANET 1-13H PITTSBURG OK JANNA 1-7H PITTSBURG OK JESSICA 1-6H PITTSBURG OK JUNIOR 1-28H PITTSBURG OK LOFTIS TRUST 1-19H PITTSBURG OK LOTT 1-15H PITTSBURG OK NORTON 1-10 PITTSBURG OK PERRY 1-11H PITTSBURG OK PLEASANT VALLEY 1-22 PITTSBURG OK RAMONA 1-6H PITTSBURG OK RUDY 1-29 PITTSBURG OK S.J. BREWER 1-7 PITTSBURG OK SEXTON 1-9H PITTSBURG OK SLOAN 1-11H PITTSBURG OK STIPE 1-3H PITTSBURG OK SUSAN SMITH 1-12 PITTSBURG OK TAMARA 1-6H PITTSBURG OK THORNTON 2-13 PITTSBURG OK WATTS RANCH 1-6 PITTSBURG OK WHITE 4 PITTSBURG OK WHITFIELD 1-4 PITTSBURG OK WHITFIELD 2-4H PITTSBURG OK WATERS 1-22 PUSHMATAHA OK ACME BRICK 1 SEBASTIAN AR ACME BRICK 4 SEBASTIAN AR CHURCH B 1 1 SEBASTIAN AR KIM, AL 1-11 SEBASTIAN AR PARKER, WAYLAND 4-19 SEBASTIAN AR PORTER D 4-28 SEBASTIAN AR FRANCISCA 1-36H SEMINOLE OK BRADLEY 11-13 1-9H VAN BUREN AR


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CHESAPEAKE WELLS COUNTY STATE BRADLEY 11-13 2-9H VAN BUREN AR COLLISTER 12-13 1-32H VAN BUREN AR GRUBEN 12-13 1-21H VAN BUREN AR HENDRIX 11-13 1-8H VAN BUREN AR HUGGINS, K 12-13 1-22H27 VAN BUREN AR TEAGUE 11-13 1-3H VAN BUREN AR TEAGUE, TERRELL 11-13 1-3H10 VAN BUREN AR WADDLE 11-17 1-23H VAN BUREN AR WADDLE 11-17 2-23H VAN BUREN AR ADAMS TRUST 7-8 1-5H WHITE AR BAKER, SAMMIE 7-7 1-6H31 WHITE AR BAKER, SAMMIE 7-7 2-6H31 WHITE AR BAKER, SAMMIE 7-7 3-6H31 WHITE AR BARGER 7-8 2-19H WHITE AR BAUER, CHARLES 9-6 1-32H WHITE AR BEAVERS 9-7 3-8H WHITE AR BENNET, SARA 8-9 2-34H WHITE AR BLICKENSTAFF 8-9 1-24H WHITE AR BOMAR, TERRY 8-9 1-17H WHITE AR BOMAR, TERRY 8-9 2-17H WHITE AR BROWN LIVING TRUST 8-7 2-20H17 WHITE AR BROWN, SHARON 8-9 2-23H WHITE AR BUTLER 8-7 2-21H WHITE AR COBB, FRED 8-7 1-21H WHITE AR DAWSON, WAYNE 8-6 1-15H WHITE AR DENNY 8-8 1-8H WHITE AR DENNY 8-8 2-8H WHITE AR DUKE 8-8 2-9H WHITE AR DUKE 8-8 4-9H WHITE AR FARRIS 9-8 1-1H WHITE AR FRIEDRICH 8-7 1-15H WHITE AR FRIEDRICH, GEORGE 8-7 1-14H WHITE AR FRIEDRICH, GEORGE 8-7 2-14H WHITE AR FRIEDRICH, GEORGE 8-7 3-14H WHITE AR FRIEDRICH, GEORGE 8-7 4-14H WHITE AR FRIEDRICH, GEORGE 8-7 5-14H WHITE AR GARRETT, DENNIS 8-7 1-25H WHITE AR GHENT 8-7 1-32H WHITE AR GREEN BAY 8-9 1-13H WHITE AR GREEN BAY 8-9 2-13H WHITE AR GREEN BAY 8-9 3-13H WHITE AR HARPER 8-8 3-1H WHITE AR HARRIS 8-9 1-26H WHITE AR HARRIS 8-9 2-26H WHITE AR HARRIS 8-9 3-26H WHITE AR HART 8-9 1-22H WHITE AR HASTINGS 8-6 1-21H WHITE AR HENSTLEY 9-5 1-17H WHITE AR HICKS, WILLIE 8-6 1-15H WHITE AR HOLDEN 9-7 1-18H WHITE AR HOOFMAN 1-12H WHITE AR JACKSON, SONNY 8-9 1-28H WHITE AR


Page 29 of 105

CHESAPEAKE WELLS COUNTY STATE JACKSON, SONNY 8-9 2-28H WHITE AR KNUDSEN 1-1H WHITE AR MCKINNEY 8-9 2-25H WHITE AR MILLER 8-7 1-12H WHITE AR MILLER 8-7 2-12H WHITE AR MILLER, DENNIS 8-6 1-7H WHITE AR MILLER, DENNIS 8-6 2-7H WHITE AR MILLER, DENNIS 8-6 3-7H WHITE AR MILLER, LACY 8-6 1-6H WHITE AR MOORE 1-5H WHITE AR NICHOLSON 7-8 2-10H WHITE AR NICHOLSON 7-8 3-10H WHITE AR OLC 8-8 2-18H WHITE AR OLC 8-8 3-18H WHITE AR OZMENT 9-5 1-29H WHITE AR PAXTON 8-9 1-29H WHITE AR PAXTON 8-9 2-29H WHITE AR PENNINGTON 8-6 2-19H WHITE AR PINKLEY 8-7 3-28H WHITE AR RAMBO, BARBARA 8-7 1-10H WHITE AR REED 9-7 2-27H WHITE AR ROCKEFELLER 10-7 2-28H WHITE AR ROCKEFELLER, WINTHROP 10-7 2-29H WHITE AR SEXTON 8-8 1-6H WHITE AR SEXTON 8-8 2-6H WHITE AR SEXTON 8-8 3-6H WHITE AR SEXTON, CHARLES 8-9 2-14H WHITE AR SLAYTON 7-8 1-14H WHITE AR SLAYTON 7-8 2-14H WHITE AR SLAYTON 7-8 3-14H WHITE AR SMITH, GLENN 8-9 2-36H WHITE AR SMITH, JIMMY 9-7 1-18H WHITE AR SMITH, JIMMY 9-7 2-18H WHITE AR SPEARS 7-8 2-1H WHITE AR SPURLOCK 8-7 1-14H WHITE AR STROUD, PHILLIP 7-9 1-35H WHITE AR TAYLOR 9-7 2-27H WHITE AR TAYLOR, WILLIAM 9-7 1-35H WHITE AR TURLEY 9-7 3-8H WHITE AR WEBB 9-6 1-35H WHITE AR WEBB 9-6 2-35H WHITE AR WEBB 9-6 3-35H WHITE AR WIGGS 8-6 1-20H WHITE AR WIGGS 8-6 2-20H WHITE AR YINGLING 9-6 1-29H20 WHITE AR YINGLING 9-6 2-29H20 WHITE AR YINGLING, BENITA 9-6 1-30H WHITE AR YINGLING, BENITA 9-6 2-30H WHITE AR


Page 30 of 105

41. Petrohawk Operating Company (“Petrohawk”) is a Texas corporation with its

principal place of business in Houston, Texas. Petrohawk is an owner of oil and gas wells, and


Oklahoma and Arkansas. In the course of its oil and gas well drilling and completion, Petrohawk

generates, stores and disposes its PFW, including PFW disposed at the MMHF Dumps Site.

Upon information and belief, Petrohawk disposed, or caused to be disposed, PFW at the MMHF

Dump Site from the following wells:

PETROHAWK WELLS COUNTY STATE BECK 8-16 2-32H CONWAY AR MASSINGILL 8-17 1-34H 1-34H CONWAY AR GREEN BAY 11-14 1-20H 1-20H VAN BUREN AR WHISENHUNT 8-31H 8-31H VAN BUREN AR SEQUOYAH 9-12 5-19H20 5-19H20 VAN BUREN AR SEQUOYAH 9-12 6-19H 6-19H VAN BUREN AR SEQUOYAH 9-12 7-19H 7-19H VAN BUREN AR WOOD 9-13 1-8H 1-8H VAN BUREN AR SEQUOYAH 9-12 3-15H 3-15H VAN BUREN AR BRADFORD 11-14 1-14H 1-14H VAN BUREN AR

42. Hanna Oil & Gas Company (“Hanna”) is an Arkansas corporation with its

principal place of business in Fort Smith, Arkansas. Hanna is an owner of oil and gas wells, and


Oklahoma and Arkansas. In the course of its oil and gas well drilling and completion, Hanna

generates, stores and disposes its PFW, including PFW disposed at the MMHF Dump Site.

Upon information and belief, Hanna disposed, or caused to be disposed, PFW at the MMHF


HANNA WELLS COUNTY STATE

LINCOLN 1 CRAWFORD AR

USA 1 CRAWFORD AR

LINCOLN 2 CRAWFORD AR

KING, J PAUL 1 FRANKLIN AR

KAY A 2 FRANKLIN AR


Page 31 of 105

HANNA WELLS COUNTY STATE

PENDERGRASS 1-23 FRANKLIN AR

LOG CABIN 3 FRANKLIN AR

HIGH FALUTIN 2 HASKELL OK

HIGH FALUTIN 3 HASKELL OK

CABIN CREEK 2 JOHNSON AR

HANNA 1-9 LEFLORE OK

EL DORADO 1 LEFLORE OK

KOCH 1-11 LOGAN AR

GIN BRANCH 1-21 LOGAN AR

BECK 1-11 LOGAN AR

HICE 1 LOGAN AR

GREEN 1-29 LOGAN AR

JETTON 1-5 LOGAN AR

GATTIS 3-6 LOGAN AR

DAVENPORT 1-26 LOGAN AR

BRUSHY MOUNTAIN 3 LOGAN AR

BROWN, KENNETH 2 LOGAN AR

HARRIS 1-22 LOGAN AR

LITTLETON 1-10 LOGAN AR

KEEZER 1-4 LOGAN AR

USA 06-25 1-5 LOGAN AR

USA 06-25 1-6 LOGAN AR

SPIRIT OF '76 1 SEBASTIAN AR

WASHBURN 1 SEBASTIAN AR

LEE, LANIE 6-29 2D-32 SEBASTIAN AR

43. Highland Oil & Gas, LLC (“Highland”) is a Delaware limited liability company

with its principal place of business in Houston, Texas. Highland is an owner of oil and gas

wells, and engages in drilling, completion, production and operation of oil, gas and disposal

wells located in Oklahoma and Arkansas. In the course of its oil and gas well drilling and

completion, Highland generates, stores and disposes its PFW, including PFW disposed of at the

MMHF Dump Site. Upon information and belief, Highland disposed, or caused to be disposed,

PFW at the MMHF Dump Site from the following wells:

HIGHLAND WELLS COUNTY STATE

KELLEY 1 LEFLORE OK


Page 32 of 105

HIGHLAND WELLS COUNTY STATE

SANDERSON 2-19 2-19 LOGAN AR





MINNIE 3 PITTSBURG OK

MICKELLA 1 PITTSBURG OK

GAINES CREEK (CAMPGROUND 1-11) 1-2H PITTSBURG OK

CRITCHFIELD 14-34 14-34 SCOTT AR

JENNY LIND 3-5D 3-5D SEBASTIAN AR

JOHNSON 7-11 7-11 SEBASTIAN AR 44. Cholla Petroleum, Inc. (“Cholla”) is a Texas corporation with its principal place

of business in Dallas, Texas. Cholla is an owner of oil and gas wells, and engages in drilling,


Arkansas. In the course of its oil and gas well drilling and completion, Cholla generates, stores

and disposes of PFW, including PFW disposed at the MMHF Dump Site. Upon information and

belief, Cholla disposed, or caused to be disposed, PFW at the MMHF Dump Site from the

following wells:

CHOLLA WELLS COUNTY STATE LAKE 1-10 SEBASTIAN AR LANE 1-9 SEBASTIAN AR

45. BP America Production Company (“BP”) is a Delaware corporation, subsidiary of

BP, PLC, and registered to do business in Oklahoma. BP is an owner of oil and gas wells, and


Oklahoma. In the course of its oil and gas well drilling and completion, BP generates, stores and

disposes of its PFW, including PFW disposed of at the MMHF Dump Site. Upon information

and belief, BP disposed, or caused to be disposed, PFW at the MMHF Dump Site from the

following wells:


Page 33 of 105

BP WELLS COUNTY STATE PATRICIA ANN 1-1H COAL OK BLACK BEAR 1 HASKELL OK MURPHY UNIT 1 HASKELL OK QUINTON 3-20 HASKELL OK QUINTON UNIT 3-20 HASKELL OK LLN 1-26H HUGHES OK LLN 1-26H HUGHES OK ADAMS 2-6 LATIMER OK ANDERSON 8 LATIMER OK BELL HEIRS 16 LATIMER OK BELL HEIRS 17 LATIMER OK BELL HEIRS 18 LATIMER OK BELL HEIRS 19 LATIMER OK BELL HEIRS 20 LATIMER OK BELL HEIRS 21 LATIMER OK BELL HEIRS 8 LATIMER OK BENNETT STATE (BENNETT STATE 2 2H-19) LATIMER OK BENNETT STATE 2 LATIMER OK BENNETT STATE 8 LATIMER OK BILLY GARNER 1-26 LATIMER OK BLAIR 14 LATIMER OK BLAIR UNIT 12 LATIMER OK BLAIR UNIT 13 LATIMER OK BREWER 7 LATIMER OK BREWER UNIT 6 LATIMER OK CECIL UNIT 7 LATIMER OK CHARNEY 15 LATIMER OK CHARNEY 16 LATIMER OK CHARNEY UNIT 10 LATIMER OK CHARNEY UNIT 11 LATIMER OK CHARNEY UNIT 12 LATIMER OK CHARNEY UNIT 13 LATIMER OK CIRCLE F RANCH 1-25 LATIMER OK CIRCLE F RANCH 2-25 LATIMER OK CIRCLE F RANCH A 1-26 LATIMER OK COBLENTZ 16 LATIMER OK COBLENTZ 17 LATIMER OK CONWAY 3 LATIMER OK CONWAY 4 LATIMER OK DYE 13 LATIMER OK FREE UNIT 6 LATIMER OK GARDNER UNIT 13 LATIMER OK GARRETT 8 LATIMER OK GARRETT 9 LATIMER OK GEORGE UNIT 13 LATIMER OK GEORGE UNIT 14 LATIMER OK HENRY HILL A 10 LATIMER OK HENRY HILL A 8 LATIMER OK HENRY HILL A 9 LATIMER OK HESTON MARTIN 11 LATIMER OK HESTON MARTIN 2 LATIMER OK HULSEY UNIT 14 LATIMER OK


Page 34 of 105

BP WELLS COUNTY STATE JONES UNIT 10 LATIMER OK JONES UNIT 2 LATIMER OK JONES UNIT 8 LATIMER OK JONES UNIT 9 LATIMER OK KENT UNIT 6 LATIMER OK KENT UNIT 7 LATIMER OK LEWIS 10 LATIMER OK LEWIS UNIT 11 LATIMER OK MABRY UNIT 10 LATIMER OK MARTIN UNIT C 10 LATIMER OK MARTIN UNIT C 11 LATIMER OK MARTIN UNIT C 12 LATIMER OK MARTIN UNIT C 13 LATIMER OK MAXEY A 9 LATIMER OK MCALESTER 6-22 LATIMER OK MCFERRAN 14 LATIMER OK MCFERRAN UNIT 12 LATIMER OK MCFERRAN UNIT 13 LATIMER OK MYTON 18 LATIMER OK MYTON 19 LATIMER OK MYTON 21 LATIMER OK MYTON 22 LATIMER OK MYTON 23 LATIMER OK MYTON UNIT 1 LATIMER OK MYTON UNIT 17 LATIMER OK MYTON UNIT 2 LATIMER OK MYTON UNIT 20 LATIMER OK MYTON UT 2 LATIMER OK PARKS UNIT B 14 LATIMER OK PARKS UNIT B 15 LATIMER OK PARKS UNIT B 16 LATIMER OK PASCHALL 8 LATIMER OK REED TRUST UNIT 2 LATIMER OK ROBERT JAMES 8 LATIMER OK SMALLWOOD 13 LATIMER OK SMALLWOOD A-14 LATIMER OK SMALLWOOD UNIT A 12 LATIMER OK TOWERY 9 LATIMER OK TOWERY UNIT 7 LATIMER OK TOWRY 10 LATIMER OK TOWRY 8 LATIMER OK TOWRY 9 LATIMER OK WAYNE AUSTIN 6-13 LATIMER OK WHITE 11 LATIMER OK WHITE 13 LATIMER OK WHITE UNIT 1 LATIMER OK CHARNEY UNIT 14 LEFLORE OK DYE UNIT 14 LEFLORE OK FOLEY FAMILY TRUST 1-32 LEFLORE OK FRANCES KANE GAS UNIT 7 LEFLORE OK GLADYS CELIA PATE UNIT (PATE U 6) LEFLORE OK GLADYS CELIA PATE UNIT 6 LEFLORE OK


Page 35 of 105

BP WELLS COUNTY STATE HENRY HILL 11 LEFLORE OK HENRY HILL 12 LEFLORE OK JOHNSON 1-23 LEFLORE OK LEFLORE 9 LEFLORE OK LOWERY 4-24 LEFLORE OK LOWERY 5-26 LEFLORE OK LOWERY RANCH 1-25 LEFLORE OK LOWERY UNIT 4-26 LEFLORE OK LOWERY UNIT 6-34 LEFLORE OK LOWREY 5 LEFLORE OK PATE 8 LEFLORE OK R.W. REED 4-23 LEFLORE OK ROY REED B 7 LEFLORE OK ROY REED F 2-9 LEFLORE OK ROY REED UNIT C 6 LEFLORE OK ROY REED UNIT F 3-9 LEFLORE OK ROY W. REED UNIT J 1 LEFLORE OK SPANGLER 10 LEFLORE OK BENNETT 1-14H PITTSBURG OK BOOZER 1-20H PITTSBURG OK ROWELL 1-1H PITTSBURG OK AUSTIN 1-6H SEMINOLE OK

46. Ross Production Company (“Ross”) is an Arkansas corporation also known as

Ross Production Co., McCord Oil Company and Ross Explorations, Inc. with its principal place

of business in Fort Smith, Arkansas. Ross is an owner of oil and gas wells, and engages in

drilling, completion, production and operation of oil, gas and disposal wells located in Oklahoma

and Arkansas. In the course of its oil and gas well drilling and completion, Ross generates,

stores and disposes of its PFW, including PFW disposed of at the MMHF Dump Site. Upon

information and belief, Ross disposed, or caused to be disposed, PFW at the MMHF Dump Site

from the following wells

ROSS WELLS COUNTY STATE USA-CBM 2-6H1 2-6H1 SEBASTIAN AR DAMRON, GLYN 3-34 3-34 SEBASTIAN AR TRACE 1-8 1-8 SEBASTIAN AR TATUM 1-11 1-11 YELL AR


Page 36 of 105

47. Shields Operating, Inc. (“Shields”) is an Arkansas corporation with its principal

place of business in Fort Smith, Arkansas. Shields is an owner of oil and gas wells, and engages

in drilling, completion, production and operation of oil, gas and disposal wells located in

Oklahoma and Arkansas. In the course of its oil and gas well drilling and completion, Shields

generates, stores and disposes of its PFW, including PFW disposed of at the MMHF Dump Site.

Upon information and belief, Shields disposed, or caused to be disposed, PFW at the MMHF


SHIELDS WELLS COUNTY STATE

ROBERT YOUNG 2-4 LEFLORE OK

YOUNG 2-21H MCINTOSH OK

48. Sedna Energy, Inc. (“Sedna”) is an Arkansas corporation with its principal place

of business in Houston, Texas. Sedna is an owner of oil and gas wells, and engages in drilling,


Arkansas. In the course of its oil and gas well drilling and completion, Sedna generates, stores

and disposes of its PFW, including PFW disposed of at the MMHF Dump Site. Upon

information and belief, Sedna disposed, or caused to be disposed, PFW at the MMHF Dump Site

from the following wells:

SEDNA WELLS COUNTY STATE

WAGGONER 2-31 FRANKLIN AR

ALLRED 3H-18 HASKELL OK

HISER 2-1 HASKELL OK

LONA VALLEY 1-7 HASKELL OK

MCCARTY 1-24 HASKELL OK

REDWINE 1-17 HASKELL OK

REDWINE 1-18 HASKELL OK

RUTH ANN 1-14 HASKELL OK

SMITH 1-29 HASKELL OK

MCCLENDON 1-10 PITTSBURG OK

RICHARDSON 1-3 PITTSBURG OK


Page 37 of 105

SEDNA WELLS COUNTY STATE

S.R. 1-22 PITTSBURG OK

S.R. PHIPPS 1-22 PITTSBURG OK

SABRINA 1-35 PITTSBURG OK

SPAHN 2-28 PITTSBURG OK

ULIS 1-2 PITTSBURG OK

49. Hogback Exploration, Inc. (“Hogback”) is an Arkansas corporation with its

principal place of business in Fort Smith, Arkansas. Hogback is an owner of oil and gas wells,

and engages in drilling, completion, production and operation of oil, gas and disposal wells

located in Oklahoma and Arkansas. In the course of its oil and gas well drilling and completion,

Hogback generates, stores and disposes of its PFW, including PFW disposed of at the MMHF

Dump Site. Upon information and belief, Hogback disposed, or caused to be disposed, PFW at

the MMHF Dump Site from the following wells:

HOGBACK WELLS COUNTY STATE YOUNG T 2-2 LOGAN AR USA 2-17 LOGAN AR

50. Bishop Trucking (“Bishop”) is an Oklahoma corporation which engaged in the

transport of PFW to the MMHF Dump Site.

51. Bear Productions, Inc. is an Oklahoma corporation which engaged in the transport

of PFW to the MMHF Dump Site.

52. Graco Fishing & Rental Tools, Inc. is an Oklahoma corporation which engaged in

the transport of PFW to the MMHF Dump Site.

53. TXD Transport, LP is a foreign limited partnership that does business within the

state of Oklahoma which engaged in the transport of PFW to the MMHF Dump Site.

54. Mike Krebbs Construction, Inc. is an Oklahoma corporation which engaged in the

transport of PFW to the MMHF Dump Site.


Page 38 of 105

55. Big Mac Tank Trucks, LLC (“Big Mac”) is a Delaware limited liability company

with its principal place of business in Enid, Oklahoma. Big Mac engaged in the transport of

PFW to the MMHF Dump Site.

56. B&B Gas Well Services, LLC is an Oklahoma limited liability company which

engaged in the transport of PFW to the MMHF Dump Site.

57. Bear Transports, LLC is an Oklahoma limited liability company which engaged in

the transport of PFW to the MMHF Dump Site.

MINIMUM STANDARDS

58. Plaintiffs do not seek recovery pursuant to Federal or State administrative and

regulatory enactments. Plaintiffs’ and Putative Class Members’ theories of recovery and claims

for relief sound in tort and equity and arise under the statutes and common laws of the State of

Oklahoma. Nonetheless, the regulatory provisions and administrative rules of the United States

Environmental Protection Agency, the Oklahoma Department of Environmental Quality, and the

Oklahoma Corporation Commission provide a detailed framework of administrative mandates,

rules, and standards which serve as a threshold with which Defendants’ respective and collective

actions and inactions must, as a regulatory minimum, strictly comply. Defendants have jointly

and severally failed to meet Federal and State regulatory minimums and standards imposed upon

them and their operations. Defendants further failed to exceed such threshold standards of care,

requirements, and procedures, to the extent reasonably necessary to protect Plaintiffs, Putative

Class Members and the Class Area from harm.

59. Plaintiffs and Putative Class Members seek to recover for personal injuries,

property damages and harm to their community and environment caused by chemicals, chemical

combinations, toxins, and deleterious wastes and byproducts utilized, generated, stored,


Page 39 of 105

transported, and released into the environment by Defendants, separately or collectively, in the

course of their respective business operations and activities.

60. Defendants’ business activities have permitted and caused the discharge and

release of hazardous and non-hazardous wastes. The hazardous and non-hazardous substances

generated, transported, and discharged into the Class Area by Defendants are known toxins,

recognized by Federal and State administrative agencies as abnormally dangerous and harmful if

released into the environment and dangerous to the health and welfare of the public. See FAC

Paragraph Nos. 129-132 and 186. Defendants’ generation, storage, transport and disposal of

toxic and hazardous wastes constitute legislatively, administratively, and judicially recognized

and established abnormally dangerous activities for which:

a. there exists a high degree of risk of harm to person, land and chattels;

b. there is a likelihood that such harm will be great;

c. there is an inability to eliminate all risk of harm even by the exercise of

reasonable care;

d. open pit dumping or disposal of solid and hazardous waste is not a matter

of common usage;

e. open pit dumping and disposal were particularly harmful as the Dump Site

is in close proximity to the resident population of Bokoshe, Plaintiffs’ and Putative Class

Members’ homes and constitutes a direct pathway for the dangerous pollutants to escape

into the air, soil, surface and ground waters at the MMHF Dump Site and in the Class

Area; and

f. dumping and release of CCW/Fly Ash and PFW hazardous and non-

hazardous wastes in an open, unlined pit is a critically dangerous threat to human health,


Page 40 of 105

safety and irreplaceable environmental resources and, further, provide no societal benefit

whatsoever.

Federal Environmental Statutes, Standards and Regulations

61. Federal environmental statutes and regulations provide a minimum standard for

the promotion and protection of health and the environment by prohibiting open dumping on the

land and converting existing open dumps to facilities which do not pose a danger to the

environment or to health. 42 U.S.C. § 6902(a). Defendants, separately and in concert, have

engaged in open dumping of solid wastes as set forth in FAC Paragraph Nos. 88, 102, 103, 110-

113, 136-138, 141-142, 169, 172, 176-178, 180 and 187.

62. Federal regulations prohibit open dumping of solid waste. RCRA 4005(a); 42

U.S.C. § 6945(a). Defendants, separately and in concert, have and are engaged in open dumping

of solid waste as set forth in FAC Paragraph Nos. 88, 102, 103, 110-113, 136-138, 141-142, 169,

172, 176-178, 180 and 187.

63. Federal regulations define “disposal” as the discharge, deposit, injection,

dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such

solid waste or hazardous waste or any constituent thereof may enter the environment or be

emitted into the air or discharged into any waters, including ground-waters. RCRA 1004(3); 42

U.S.C. § 6903(3). Defendants, separately and in concert, have engaged in actions leading to and

constituting disposal as set forth in FAC Paragraph Nos. 88, 102, 103, 110-113, 136-138, 141-

142, 169, 172, 176-178, 180 and 187.

64. Federal regulations define “solid waste” as any garbage, refuse, sludge from a

waste treatment plant or air pollution control facility and other discarded material, including

solid, liquid, semisolid, or contained gaseous material resulting from industrial operations. 42


Page 41 of 105

U.S.C. § 6903(27). Defendants, separately and in concert, have engaged in actions relating to

and constituting the generation, transportation and wrongful disposal of nonhazardous and

hazardous solid waste as set forth in FAC Paragraph Nos. 88, 102, 103, 110-113, 136-138, 141-

142, 169, 172, 176-178, 180 and 187.

65. An “underground drinking water source” includes any aquifer in which the

groundwater contains less than 10,000 milligrams per liter of total dissolved solids. 40 C.F.R. §

257.3-4(c)(4). Underground drinking water sources exist under, and in close proximity to the

MMHF Dump Site, the AESSP CCW/Fly Ash generation plant, as well as other release sites

within the Class Area. Defendants’ actions have caused contaminants to be released into these

underground drinking water sources as set forth in FAC Paragraph Nos. 121 and 122.

66. Federal standards and regulations for solid waste disposal practices prohibit the

contamination of any underground drinking water source beyond the solid waste boundary of a

disposal site. 40 C.F.R. § 257.3-4(a). Defendants, separately and in concert, have engaged in

actions leading to and causing the contamination of underground drinking water sources beyond

the solid waste boundary of a disposal site as set forth in FAC Paragraph Nos. 121 and 122.

67. Federal regulations mandate that a facility shall not cause a discharge of

pollutants into waters of the United States that is in violation of the Clean Water Act NPDES

requirements. 40 C.F.R. §257.3-3(a). Defendants, separately and in concert, have engaged in

actions leading to and causing the contamination of the waters in close proximity to the MMHF

Dump Site, the AESSP CCW/Fly Ash generation facility, as well as other release sites within the

Class Area as set forth in FAC Paragraph Nos. 88, 100, 102, 103, 110-113, 121-122, 136-138,

141-142, 169, 172, 176-178, 180 and 187.


Page 42 of 105

68. Federal regulations identify a number of materials and wastes that, if discharged

into water, render them pollutants, including, but not limited to, solid waste, chemical wastes and

industrial waste, biological materials, sand, and rock. 33 U.S.C. § 1362(6). Defendants,

separately and in concert, have generated and discharged or caused to be discharged materials

and wastes, including solid waste, chemical wastes, industrial waste, sand and rock into waters of

the state located within the Class Area as well as waters belonging to and located on the

properties of Plaintiffs and Putative Class Members as set forth in FAC Paragraph Nos. 88, 100,

102, 103, 110-113, 121-122, 136-138, 141-142, 169, 172, 176-178, 180 and 187.

69. Defendants’ actions violate Section 7002(a)(1)(B) of RCRA, 42 U.S.C. §

6972(a)(1)(B) for the reason that each Defendant named in this action, separately and in concert,

has engaged in the generation, storage, treatment, transportation, or disposal of solid and

hazardous waste presenting an imminent and substantial endangerment to health or the

environment of the Plaintiffs and Putative Class Members as set forth in FAC Paragraph Nos. 88,

100, 102, 103, 110-113, 121-122, 136-138, 141-142, 169, 172, 176-178, 180 and 187.

70. Defendants’ actions violate Section 1002(b) of RCRA, 42 U.S.C. § 6901(b)(1)(4),

for the reason that each Defendant named in this action, separately and in concert, has “dumped”

or caused to be “dumped” solid waste in a location and manner that has contaminated surface

water and groundwater and polluted the air and land in the Class Area thereby endangering the

health and welfare of the Plaintiffs and Putative Class Members and their environment as set

forth in FAC Paragraph Nos. 88, 100, 102, 103, 110-113, 121-122, 136-138, 141-142, 169, 172,

176-178, 180 and 187.

71. Defendants’ release and open dumping of solid and hazardous waste have created

and pose a reasonable probability of adverse effects on the health and welfare of the Plaintiffs


Page 43 of 105

and Putative Class Members and their environment. RCRA § 6907(a)(3); See 42 U.S.C. §

6944(a); 40 C.F.R. Parts 257 and 258. See FAC Paragraph Nos. 124-134 and 181-189.

72. Defendants’ handling, storage, transport and disposal of its solid and hazardous

waste constitute open dumping and have created and pose a reasonable probability of adverse

effects on health or the environment. RCRA § 6907(a)(3); See 42 U.S.C. § 6944(a); 40 C.F.R.

Parts 257, 257.3 and 258. See FAC Paragraph Nos. 88, 100, 102, 103, 110-113, 121-122, 124-

134, 136-138, 141-142, 169, 172, 176-178, and 180-189.

Oklahoma Environmental Statutes, Standards and Regulations

73. The statutes and environmental regulations in Oklahoma set forth a standard of

strict liability against any party that pollutes and contaminates the lands and waters within the

state.

74. Pursuant to Title 27A of the Oklahoma Statutes, § 2-6-102, pollution of the waters

of this state constitutes a menace to public health and welfare, creates public nuisances, is

harmful to wildlife, fish and aquatic life, and impairs domestic, agricultural, industrial,

recreational and other legitimate beneficial uses of water. Separately, and in concert, the

Defendants have discharged and caused others to discharge the pollutants, deleterious

substances, toxic chemicals, toxic chemical components and wastes set forth in FAC Paragraphs

Nos. 132-134, 166 and 181-186 into the surface and subsurface waters of the State of Oklahoma

within the Class Area. The surface water pollution for which Defendants are jointly and

severally guilty and liable include, but are not limited to, 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. Defendants have further discharged and caused

others to discharge pollutants and the leachate from all waste has contaminated and continues to


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contaminate the alluvial and bedrock aquifers downgradient from the pit and confined

groundwater within the Class Area.

75. The PFW Defendants have transported and caused to be transported, toxic,

untreated PFW, generated at oil and gas well sites in the State of Arkansas which are identified

by well name, county and operator, in FAC Paragraph Nos. 37 to 49, excepting No. 45, into the

State of Oklahoma for discharge into the open, unlined MMHF Dump Site pit and into the public

and private waters, soils, and air of the Class Area. Defendants’ actions violate the public policy

of the State of Oklahoma as stated in Title 27A of the Oklahoma Statutes, § 2-6-102 and the

personal and property rights of Plaintiffs and Putative Class Members.

76. Title 27A of the Oklahoma Statutes, § 2-6-105 (A) states it shall be unlawful for

any person to cause pollution of any waters of the state or to place or cause to be placed any

wastes in a location where they are likely to cause pollution of any air, land or waters of the

state. Any such action is hereby declared to be a public nuisance. Defendants, separately and in

concert, caused pollution and contamination of the air, land and waters of the Class Area as set

forth in FAC Paragraph Nos. 88, 98-106, 110-113, 121-122, 124-134, 136-138, 141-142, 169,

172, 176-178, and 180-189.

77. Title 29 of the Oklahoma Statutes, § 7-401(A) provides that no person may

deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite or other

explosive, poison, drug, sawdust, salt water, crude oil or any other deleterious, noxious or toxic

substance in any waters of this state, or in any place where such substances may run or be

washed into such waters. Defendants, separately and in concert, violated this statute in the

course of their respective industrial, oil and gas exploration and development, and ancillary


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business activities, as set forth in FAC Paragraph Nos. 98-106, 110-113, 118, 120-123, 134, 136-

137, 140-142, 155, 157-160, 162, 169, 172, 177, 178, and 187-190.

78. The Oklahoma statutes were enacted to protect the public health, safety and

welfare; protect the environment; conserve valuable land and natural resources; enhance the

beauty and quality of the environment; and encourage the recycling of solid waste. 27A O.S. §

2-10-102. Defendants have engaged in acts and omissions contrary to the purpose of this statute

as set forth in FAC Paragraph Nos. 98-106, 110-113, 118, 120-123, 134, 136-137, 140-142, 155,

157-160, 162, 169, 172, 177, 178, and 187-190.

79. No person shall dispose of solid waste at any site or facility other than a site or

facility for which a permit for solid or hazardous waste disposal has been issued by ODEQ. 27A

O.S. § 2-10-301. Defendants have violated this statute as set forth in FAC Paragraph Nos. 98-

106, 110-113, 118, 120-123, 134, 136-137, 140-142, 155, 157-160, 162, 169, 172, 177, 178, and

187-190.

80. No person shall knowingly transport solid waste to an unpermitted site or facility.

27A O.S. § 2-10-301. Defendants violated this statute as set forth in FAC Paragraph Nos. 96-97,

106, 110-112, 123, 135-144, 146, 161, 163, 169, 175, 178-179, and 187-190.

81. No person shall cause or allow any fugitive dust source to be operated or any

substances to be handled, transported or stored … to the extent that such operation or activity

may enable fugitive dust to become airborne and result in air pollution without taking reasonable

precautions to minimize or prevent pollution. Okla. Admin. Code 252:100-29-2. The MMHF

and CCW/Fly Ash Defendants violated this regulation and did not take adequate or reasonable

precautions to minimize or prevent fugitive dust pollution. Okla. Admin. Code 252:100-29-3.

See FAC Paragraph Nos. 135-144, 149, 155-157, 159, 160-164.


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82. Plaintiffs’ and Putative Class Members’ private rights of action and common law

remedies are preserved by Title 27A of the Oklahoma Statutes, § 2-6-104 which provides that:

“[n]othing herein contained shall be construed to abridge or alter rights of action or remedies

under the common law or statutory law, criminal or civil; nor shall any provision of this article,

or any act done by virtue thereof, be construed as estopping the state, or any municipality or

person, as riparian owners or otherwise, in the exercise of their rights under the common law to

suppress nuisances or to abate pollution.” Plaintiffs and Putative Class Members seek the fullest

measure of common law rights and remedies which they are entitled to recover against any and

all of the Defendants.

83. For purposes of fully and plainly expressing their claims against the Defendants,

Plaintiffs and Putative Class Members rely upon and incorporate herein certain terms and

definitions set forth in the Oklahoma’s Administrative Code as follows:

a. “Commercial pit” is a disposal facility which is authorized by

Commission order and used for the disposal, storage, and handling substances or soils

contaminated by deleterious substances produced, obtained, or used in connection with

drilling and/or production operations. This does not include a disposal well pit. Okla.

Admin. Code 165:10-1-2; 165:9-1.

b. “Deleterious substances” means any chemical, salt water, oil field brine,

waste oil, waste emulsified oil, basic sediment, mud, or injurious substance produced or

used in the drilling, development, production, transportation, refining, and processing of

oil, gas and/or brine mining. Okla. Admin. Code 165:10-1-2.


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c. “Discharge” means the release or setting free by any spilling, leaking,

pumping, pouring, emitting, emptying, or dumping of substances. Okla. Admin. Code

165:10-1-2.

d. “Pollution” means the contamination of fresh water or soil, either surface

or subsurface, by salt water, mineral brines, waste oil, oil, gas, and/or other deleterious

substances produced from or obtained or used in connection with the drilling,

development, producing, refining, transporting, or processing of oil or gas within the

State of Oklahoma. Okla. Admin. Code 165:10-1-2.

e. “Operator” means the person who is duly authorized and in charge of the

development of a lease or the operation of a producing property. Okla. Admin. Code

165:10-1-2.

f. “Owner” means the person or persons who have the right to drill into and

to produce from any common source of supply, and to appropriate the production either

for himself, or for himself and others. Okla. Admin. Code 165:10-1-2.

g. “Public area” means a dwelling place, a business, church, school,

hospital, school bus stop, government building, a public road, all or any portion of a park,

city, town, village, or other similar area that can reasonably be expected to be populated

by humans. Okla. Admin. Code 165:10-1-2.

h. “Public street” or “road” means any federal, state, county, or municipal

street or road owned or maintained for public access or use. Okla. Admin. Code 165:10-

1-2.

i. “Waste oil” shall include, but not be limited to, crude oil or other

hydrocarbons used or produced in the process of drilling for, developing, producing, or


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processing oil or gas from wells, oil retained on cuttings as a result of the use of oil-based

drilling muds, or any residue from any oil storage facility on a producing lease or on a

commercial disposal operation or pit. The term “waste oil” shall not include any refined

hydrocarbons to which lead has been added. Okla. Admin. Code 165:10-1-2.

j. Hydraulic fracturing and acidizing. In the completion of an oil, gas,

injection, disposal, or service well, where acidizing or fracture processes are used, no oil,

gas, or deleterious substances shall be permitted to pollute any surface or subsurface fresh

water. Okla. Admin. Code 165:10-3-10.

84. Oklahoma’s Administrative Code sets forth the following rules and regulations

with which Defendants, separately and in concert, have failed to comply. Defendants’ acts and

omissions in violation of the following rules and regulations have caused Plaintiffs and Putative

Class Members injuries for which Plaintiffs seek actual and punitive damages. Defendants have

knowledgably and recklessly committed tortuous acts for which they are jointly, severally and

strictly liable to Plaintiffs and Putative Class Members:

a. Pollution is prohibited. All operators, contractors, drillers, service

companies, pit operators, transporters, pipeline companies, or other persons shall at all

times conduct their operations in a manner that will not cause pollution. Okla. Admin.

Code 165:10-7-5(a). Defendants, separately and in concert, violated this rule and

regulation as set forth in FAC Paragraph Nos. 88, 98-106, 110-113, 121-122, 124-134,

136-138, 141-142, 169, 172, 176-178, and 180-189.

b. Discharge of deleterious substances to streams or other surface waters is

prohibited except by order of the Commission; unless permitted by a valid National

Pollutant Discharge Elimination System (NPDES) Permit issued by U.S. EPA. Okla.


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Admin. Code 165:10-7-18. Defendants, separately and in concert, violated this rule and

regulation as set forth in FAC Paragraph Nos. 187-190.

c. All commercial pits must conduct permeability tests of its proposed liner

materials, pursuant to (e) (7) of this Section. Okla. Admin. Code 165:10-9-1(b)(3)(B).

Upon information and belief, the MMHF Defendants did not conduct the required

permeability tests. Upon information and belief, the MMHF Dump Pit is unlined and to

the extent that a shale layer exists between the bottom of the pit and groundwater

horizons, such shale layer is fractured and does not prevent communication of the waste

and the groundwater horizons 7 feet below the pit floor. No liner or impermeable layer

exists to protect the pit contents through the vertical walls of the MMHF Dump Site pit.

d. A plan for operation which shall address the method(s) by which excess

water will be disposed. Okla. Admin. Code 165:10-9-1(b)(3)(I). Upon information and

belief, the MMHF Defendants received substantial amounts of waste fluids and water

with no plan that complies with this rule and regulation.

e. No commercial earthen pit shall be constructed or used unless an

investigation of the soils, topography, geology, and hydrology conclusively shows that

storage of water-based drilling fluids and/or cuttings at the site will not be harmful to

groundwater, surface water, soils, plants, or animals in the surrounding area. No

abandoned mine, strip pit, quarry, canyon, or streambed shall be used for disposal of

oilfield wastes, nor shall a pit be constructed or used in such a setting. Okla. Admin.

Code 165:10-9-1(c)(2)(A). Upon information and belief, Defendants, separately and in

concert, violated this rule and regulation.


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f. No commercial pit shall be constructed unless it can be shown that there

will be a minimum of 25 feet between the bottom of the pit and the groundwater level. To

ascertain this and to demonstrate the subsurface profile of the site, a minimum of three

test borings (the exact number of locations to be determined by the Pollution Abatement

Department) shall be drilled to a minimum depth of 25 feet below the proposed bottom of

the pit and into the first free water encountered. Perched water tables are not considered

for the purposes of this subparagraph. Test borings need not extend deeper than 50 feet

below the bottom of the pit if free water has not been encountered before that depth. All

boreholes converted to monitor wells shall conform to (e) (15) of this Section. All

boreholes not converted to monitor wells shall be plugged from top to bottom with

bentonite, cement, and/or other method approved by the Pollution Abatement Department

within 30 days of drilling completion. Okla. Admin. Code 165:10-9-1(c)(2)(D). Upon

information and belief, the MMHF Defendants violated this rule and regulation.

g. No runoff water from surrounding land surfaces shall be allowed to enter a

pit. Okla. Admin. Code 165:10-9-1(e)(2). Upon information and belief, the MMHF

Defendants violated this rule and regulation.

h. Oklahoma’s Administrative Code sets forth specific requirements for the

use and type of liners required for commercial pits. Okla. Admin. Code 165:10-9-

1(e)(7)(8)(13)(17). No liner was utilized in the construction of the MMHF pit.

i. No operator of a commercial pit shall receive any substances other than

water-based drilling fluids and/or cuttings or salt contaminated soils. Okla. Admin. Code

165:10-9-1(f)(6)(A). The MMHF Defendants violated this rule and regulation as set

forth in FAC Paragraph Nos. 37-49 and 181-186.


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j. No operator of a pit permitted prior to July 9, 1987, shall receive fluids

and/or cuttings with a chloride content greater than 3500 mg/1. No operator of a pit

permitted after July 9, 1987, shall receive fluids and/or cuttings with a chloride content

greater than 5000 mg/1. Okla. Admin. Code 165:10-9-1(f)(6)(B). Upon information and

belief, the MMHF Defendants violated this rule and regulation.

k. A sample from each incoming load shall be collected, filtered using a

standard API filter press, and tested for chlorides. Okla. Admin. Code 165:10-9-

1(f)(6)(C). Upon information and belief, the MMHF Defendants violated this rule and

regulation.

l. The date, volume, source, and chloride level of each load received shall be

entered into a log book. The log book shall be available for inspection by a representative

of the Conservation Division of the Commission at all times. Log books shall be kept for

a minimum of five years after closure is completed. Okla. Admin. Code 165:10-9-

1(f)(6)(D). Upon information and belief, the MMHF Defendants: (1) failed to maintain

the required log books; and (2) engaged in the falsification of log book entries.

m. All commercial pits shall be used, operated, and maintained at all times so

as to prevent pollution. In the event of a nonpermitted discharge from a commercial pit,

sufficient measures shall be taken to stop or control the loss of materials, and reporting

procedures in 165:10-7-5(c) shall be followed. Any materials lost due to such discharge

shall be cleaned up as directed by a representative of the Conservation Division. Okla.

Admin. Code 165:10-9-1(f)(12). Upon information and belief, the MMHF Defendants

violated this rule and regulation.


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85. The Oklahoma Administrative Code, 165:10-7-24, sets forth the proper and

accepted disposal options that generators must use dependent upon the type of waste fluid to be

disposed. This code is consistent with EPA’s policy on source reduction, recycling, treatment

and proper disposal in that operators shall use waste management practices as listed in 165:10-7-

24 (c) which describes the various authorized waste management practices for the following

waste materials. For any of the following waste materials where option (16) is listed, option (16)

shall be considered before any other option:

a. Produced water - Options 1, 7 & 9: (1) Reclaim and/or recycle; (7)

Underground injection (in accordance with 165:10-5-1 through 165:10-5-14); and (9)

Discharge (in accordance with 165:10-7-17). Defendants violated this required waste

management practice.

b. Weighted water - Options 1 & 7: (1) Reclaim and/or recycle; (7)

Underground injection (in accordance with 165:10-5-1 through 165:10-5-14).

Defendants violated this required waste management practice.

c. Used treatment fluids, frac sand, and other flowback wastes - Options

1, 2, 5 & 7 and, for frac sand only - Options 3 & 20: (1) Reclaim and/or recycle; (2)

Burial (in accordance with 165:10-7-16); (3) Landfills regulated by the Oklahoma

Department of Environmental Quality; (5) Noncommercial pits (in accordance with

165:10-7-16); (7) Underground injection (in accordance with 165:10-5-1 through 165:10-

5-14); and (20) Burial as approved by the Commission. Defendants violated this required

waste management practice.

d. Water based mud - Options 1, 2, 5, 6, 7, 8 & 19: (1) Reclaim and/or

recycle; (2) Burial (in accordance with 165:10-7-16); (5) Noncommercial pits (in


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accordance with 165:10-7-16); (6) Commercial mud disposal pits (in accordance with

165:10-9-1) ; (7) Underground injection (in accordance with 165:10-5-1 through 165:10-

5-14); (8) Land application (in accordance with 165:10-19 and 165:10-7-26); and (19)

Commercial soil farming (in accordance with 165:10-9-2). Defendants violated this

required waste management practice.

e. Water based mud cuttings - Options 1, 2, 3, 4, 5, 6, 7, 8, 12 & 19: (1)

Reclaim and/or recycle; (2) Burial (in accordance with 165:10-7-16); (3) Landfills

regulated by the Oklahoma Department of Environmental Quality; (4) Road applications

by County Commissioners (in accordance with 165:10-7-22 and 165:10-7-28); (5)

Noncommercial pits (in accordance with 165:10-7-16); (6) Commercial mud disposal pits

(in accordance with 165:10-9-1); (7) Underground injection (in accordance with 165:10-

5-1 through 165:10-5-14); (8) Land application (in accordance with 165:10-19 and

165:10-7-26); (12) Application to lease roads, well locations, and production sites (in

accordance with 165:10-7-27 and 165:10-7-29); and (19) Commercial soil farming (in

accordance with 165:10-9-2). Defendants violated this required waste management

practice.

f. Oil based mud - Options 1, 2, 3, 4, 5, 7 & 22: (1) Reclaim and/or recycle;

(2) Burial (in accordance with 165:10-7-16); (3) Landfills regulated by the Oklahoma

Department of Environmental Quality; (4) Road applications by County Commissioners

(in accordance with 165:10-7-22 and 165:10-7-28); (5) Noncommercial pits (in

accordance with 165:10-7-16); (7) Underground injection (in accordance with 165:10-5-1

through 165:10-5-14); and (22) Land application as approved by the Commission.



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g. Oil based mud cuttings - Options 1, 2, 3, 4, 5, 7, 8, 12 & 14: (1) Reclaim

and/or recycle; (2) Burial (in accordance with 165:10-7-16); (3) Landfills regulated by

the Oklahoma Department of Environmental Quality; (4) Road applications by County

Commissioners (in accordance with 165:10-7-22 and 165:10-7-28); (5) Noncommercial

pits (in accordance with 165:10-7-16); (7) Underground injection (in accordance with

165:10-5-1 through 165:10-5-14); (8) Land application (in accordance with 165:10-7-19

and 165:10-7-26) ; (12) Application to lease roads, well locations, and production sites

(in accordance with 165:10-7-27 and 165:10-7-29) and (14) Disposal of waste oil as

specified in 165:10-7-23. Defendants violated this required waste management practice.

h. Crude oil - Options 1, 4, 12, 13 & 14: (1) Reclaim and/or recycle; (4)

Road applications by County Commissioners (in accordance with 165:10-7-22 and

165:10-7-28); (12) Application to lease roads, well locations, and production sites (in

accordance with 165:10-7-27 and 165:10-7-29); (13) Open burning in accordance with

Oklahoma Department of Environmental Quality regulations; and (14) Disposal of waste

oil as specified in 165:10-7-2. Defendants violated this required waste management

practice.

i. Used solvents - Options 1, 15 & 16 - (1) Reclaim and/or recycle; (15)

Disposal in accordance with Oklahoma Department of Environmental Quality

regulations; and (16) If the waste is determined to be a hazardous waste under the Federal

Resource Conservation and Recovery Act (RCRA), disposal will be determined by the

Oklahoma Department of Environmental Quality; if a non-hazardous waste, Option 17

may be used or other disposal option as approved by the Commission. Defendants

violated this required waste management practice.


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j. Oily debris - Options 1, 3, 13 & 20: (1) Reclaim and/or recycle; (3)

Landfills regulated by the Oklahoma Department of Environmental Quality; (13) Open

burning in accordance with Oklahoma Department of Environmental Quality regulations;

and (20) Burial as approved by the Commission. Defendants violated this required waste


k. Filter media and backwash - Options 1, 3, 7, 15, 16 & 20: (1) Reclaim

and/or recycle; (3) Landfills regulated by the Oklahoma Department of Environmental

Quality; (7) Underground injection (in accordance with 165:10-5-1 through 165:10-5-

14); (15) Disposal in accordance with Oklahoma Department of Environmental Quality

regulations; (16) If the waste is determined to be a hazardous waste under the Federal

Resource Conservation and Recovery Act (RCRA), disposal will be determined by the

Oklahoma Department of Environmental Quality; if a non-hazardous waste, Option 17

may be used or other disposal option as approved by the Commission; and (20) Burial as

approved by the Commission. Defendants violated this required waste management

practice.

l. Glycol, amine, and caustic wash - Options 1 & 7: (1) Reclaim and/or

recycle; and (7) Underground injection (in accordance with 165:10-5-1 through 165:10-5-

14). Defendants violated this required waste management practice.

m. Produced sand/sediment - Options 3, 7, 8, 17 & 20: (3) Landfills

regulated by the Oklahoma Department of Environmental Quality; (7) Underground

injection (in accordance with 165:10-5-1 through 165:10-5-14); (8) Land application (in

accordance with 165:10-7-19 and 165:10-7-26); (17) On-site or in-situ


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bioremediation/remediation; and (20) Burial as approved by the Commission.


n. Unused treatment chemicals - Options 1, 15 & 16: (1) Reclaim and/or

recycle; (15) Disposal in accordance with Oklahoma Department of Environmental

Quality regulations; and (16) If the waste is determined to be a hazardous waste under the

Federal Resource Conservation and Recovery Act (RCRA), disposal will be determined

by the Oklahoma Department of Environmental Quality; if a non-hazardous waste,

Option 17 may be used or other disposal option as approved by the Commission.


o. Oil containing PCBs - Option 11: (11) In accordance with EPA; Code of

Federal Regulations (CFR), Title 40, Part 761.60 through 761.79. Defendants violated

this required waste management practice.

p. Oils not containing PCBs - Options 1, 15 & 16: (1) Reclaim and/or

recycle; (15) Disposal in accordance with Oklahoma Department of Environmental

Quality regulations; and (16) If the waste is determined to be a hazardous waste under the

Federal Resource Conservation and Recovery Act (RCRA), disposal will be determined

by the Oklahoma Department of Environmental Quality; if a non-hazardous waste,

Option 17 may be used or other disposal option as approved by the Commission.


q. Salt contaminated soils - Options 5, 6, 8 & 17: (5) Noncommercial pits

(in accordance with 165:10-7-16); (6) Commercial mud disposal pits (in accordance with

165:10-9-1); (8) Land application (in accordance with 165:10-7-19 and 165:10-7-26); and


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(17) On-site or in-situ bioremediation/remediation. Defendants violated this required


r. Crude oil contaminated soils - Options 1, 3, 4, 8, 10, 12, 14, 17 & 22:

(1) Reclaim and/or recycle; (3) Landfills regulated by the Oklahoma Department of

Environmental Quality; (4) Road applications by County Commissioners (in accordance

with 165:10-7-22 and 165:10-7-28); (8) Land application (in accordance with 165:10-7-

19 and 165:10-7-26); (10) Reclaim and/or recycle (in accordance with 165:10-7-23); (12)

Application to lease roads, well locations, and production sites (in accordance with

165:10-7-27 and 165:10-7-29); (14) Disposal of waste oil as specified in 165:10-7-23;

(17) On-site or in-situ bioremediation/remediation; and (22) Land application as


practice.

s. Pit sludges from wellsites, disposal well pits and gathering systems -

Options 1, 3, 4, 7, 8, 12, 17 & 20: (1) Reclaim and/or recycle; (3) Landfills regulated by

the Oklahoma Department of Environmental Quality; (4) Road applications by County

Commissioners (in accordance with 165:10-7-22 and 165:10-7-28); (7) Underground

injection (in accordance with 165:10-5-1 through 165:10-5-14); (8) Land application (in

accordance with 165:10-7-19 and 165:10-7-26); (10) Reclaim and/or recycle (in

accordance with 165:10-7-23); (12) Application to lease roads, well locations, and

production sites (in accordance with 165:10-7-27 and 165:10-7-\29); (17) On-site or in-

situ bioremediation/remediation; and (20) Burial as approved by the Commission.



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t. Wastes other than refined product removed from produced water and

other well fluids prior to injection or disposal - Options 1, 7, 8, 17 & 20: (1) Reclaim

and/or recycle; (7) Underground injection (in accordance with 165:10-5-1 through

165:10-5-14); (8) Land application (in accordance with 165:10-7-19 and 165:10-7-26);

(17) On-site or in-situ bioremediation/remediation; and (20) Burial as approved by the

Commission. Defendants violated this required waste management practice.

u. Waste crude oil and light hydrocarbons (gas condensate) in reserve

pits, other impoundments or tankage at wellsites - Options 1, 7, 8, 13 & 17: (1)

Reclaim and/or recycle; (7) Underground injection (in accordance with 165:10-5-1

through 165:10-5-14); (8) Land application (in accordance with 165:10-7-19 and 165:10-

7-26); (13) Open burning in accordance with ODEQ regulations; and (17) On-site or in-

situ bioremediation/remediation. Defendants violated this required waste management

practice.

v. Contaminated ground water (except refined products) - Options 1, 7,

21 & 22: (1) Reclaim and/or recycle; (7) Underground injection (in accordance with

165:10-5-1 through 165:10-5-14); (21) Surface discharge as approved by the

Commission; and (22) Land application as approved by the Commission. Defendants


w. Residues and truckwash from inside the tank of trucks used to

transport saltwater, drilling mud or spent completion fluids - Options 1, 3, 7 & 20:


Environmental Quality; (7) Underground injection (in accordance with 165:10-5-1

through 165:10-5-14); and (20) Burial as approved by the Commission. Defendants


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x. Water or soil contaminated by refined product from E& P operations

– Options 1, 16, 21 & 22: (1) Reclaim and/or recycle; (16) If the waste is determined to

be a hazardous waste under the Federal Resource Conservation and Recovery Act

(RCRA), disposal will be determined by the Oklahoma Department of Environmental

Quality; if a non-hazardous waste, Option 17 may be used or other disposal option as

approved by the Commission; (21) Surface discharge as approved by the Commission;

and (22) Land application as approved by the Commission. Defendants violated this

required waste management practice.

y. Rigwash and supply water - Options 1, 5, 7 & 8: (1) Reclaim and/or

recycle; (5) Noncommercial pits (in accordance with 165:10-7-16); (7) Underground

injection (in accordance with 165:10-5-1 through 165:10-5-14); and (8) Land application

(in accordance with 165:10-7-19 and 165:10-7-26. Defendants violated this required


z. Trash and debris - Options 15 & 20: (15) Disposal in accordance with

Oklahoma Department of Environmental Quality regulations; and (20) Burial as


practice.

aa. Refined petroleum product releases - Options 1, 3, 8, 13, 16, 17 & 22:


Environmental Quality; (8) Land application (in accordance with 165:10-7-19 and

165:10-7-26); (13) Open burning in accordance with Oklahoma Department of

Environmental Quality regulations; (16) If the waste is determined to be a hazardous


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waste under the Federal Resource Conservation and Recovery Act (RCRA), disposal will

be determined by the Oklahoma Department of Environmental Quality; if a non-

hazardous waste, Option 17 may be used or other disposal option as approved by the

Commission; (17) On-site or in-situ bioremediation/remediation; and (22) Land

application as approved by the Commission. Defendants violated this required waste


OPERATIVE FACTS

AES – CCW/Fly Ash

86. Before 1990, there was not a coal-fired power plant in LeFlore County.

87. Before 1990, there were no CCW/Fly Ash/Fly Ash disposal facilities in LeFlore

County.

88. In the fall of 1990, AES completed construction of a 325 megawatt coal-fired

power generating plant in LeFlore County, Oklahoma. The plant is located within the Class

Area, approximately 7 miles from the town of Bokoshe and AESSP’s CCW/Fly Ash dump site

located outside the town of Bokoshe.

89. AESSP generates electricity by combusting coal to produce steam which feeds

two turbine generation units, each with a reported capacity of 175 megawatts (MW) of

electricity.

90. AESSP is fueled by Oklahoma and Powder River Basin (“PRB”) coal and

limestone delivered by truck and train. Defendants GCI, Mountain Minerals, BCM, FCMC, Ash

Grove, Marine Coal, Hunter Ridge, International Coal, and Coal Creek delivered coal and

limestone to the AESSP plant.


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91. The CCW/Fly Ash Defendants that sell and transport the vast quantities of coal to

AESSP do so for commercial purposes which in part include possession and use of CCW/Fly

Ash generated by AESSP and, in so doing, actively engage in the handling, transportation,

disposal, release, and escape of CCW/Fly Ash into the air, surface waters, groundwater, soil,

atmosphere, and ambient air of the Class Area.

92. Upon delivery, the coal and limestone are unloaded and stored in a large-domed

structure 300 feet in diameter and 130 feet tall that is located on a 17-acre pad on which

additional coal is stored without cover. Prior to combustion, the coal and limestone are crushed

on-site. Coal and limestone are burned continuously at the AESSP plant and, as a result,

CCW/Fly Ash is generated continuously at the plant as well.

93. The AESSP coal-fired generating plant is designed to operate using low-grade

“lignite” coal with a sulfur content ranging from 0.32% to 4.1% (low- to high-sulfur coal).

94. Combustion of the coal produces “flue-gas” that contains both gases and solid

particles (fly ash). The flue-gas passes through a centrifugal separator (cyclone) and then

through fabric filters (baghouse) that are designed to reduce the amount of coarse and fine

particulate matter emitted into the air at the plant. The CCW/Fly Ash/Fly ash disposed of by

AESSP in the Class Area consists of the particulate matter removed at the plant from the flue-

gas.

95. Crushed limestone (CaCO3) is injected into the coal combustion fireboxes. The

CaCO3 in the limestone reacts with the SO2 in the flue-gas to form solid particles of gypsum

(CaSO4) and releases gaseous carbon dioxide (CO2). The particles of CaSO4 are also part of the

particulate matter removed from the flue-gas in the cyclones and baghouse and are ultimately

part of the CCW/Fly Ash disposed of by AES in the Class Area.


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96. After combustion, the CCW/Fly Ash removed from the flue-gas is collected and

moved to four concrete storage silos located at the AESSP plant. The CCW/Fly Ash is then

transferred from the storage silos, loaded onto trucks or rail cars and transported off-site. AESSP

is reported to generate approximately 300,000 tons of CCW/Fly Ash annually; of which, 80% or

more is dumped within the Class Area.

97. Although the number of truck and rail car loads of CCW/Fly Ash dispatched from

the AESSP plant may vary, the generation and release of CCW/Fly Ash at the plant has been

continuous for more than two decades.

98. Flue-gases emitted from the AESSP plant contain sulfur dioxide (SO2), nitrogen

oxides (NOx,), particulate matter (PM), carbon monoxide (CO), volatile organic compounds

(VOC), fluorides (F), beryllium (Be), lead (Pb) and mercury (Hg).

99. AESSP has numerous sources of particulate fugitive emissions including, but not

limited to, the coal storage dome, coal conveyors, coal crusher baghouse, coal storage silos,

limestone storage dome, limestone reclaimer baghouse, limestone crusher, limestone reclaimer

tunnel, limestone receiver baghouse, crushed limestone silo baghouses, ash silos and the

exposed coal storage pile. Additionally coal fines, limestone fines and ash escape from the

transport trucks and rail cars, and these fines as well as soil fines can be suspended/re-

suspended/wind-eroded from roadways, open areas and structure surfaces.

100. AESSP discharges cooling tower blow-down currently and/or historically

comingled with treated sanitary waste, coal pile runoff, wash-down water under National

Pollution Discharge Elimination System (NPDES) Permit OK OK0040169 (original permit

issued May 22, 1987; current permit issued February 14, 2011) to the Poteau River through an


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external outfall reported to be located at N35.194833 W94.646111. Upon information and

belief, this discharge contains copper, oil and grease, oxidants and suspended solids.

101. AESSP is responsible for the disposal of toxic chemicals into pits, streams, rivers,

groundwater, the air and the general environment within the Class Area.

102. AESSP’s Toxic Release Inventory (“TRI”) Facility ID is 74951SSHDY3MILE.

The earliest reports of AESSP’s releases of toxic chemicals (TRI Form R) are from 1998 and

continue through 2012. During this 14-year period, AESSP has engaged in significant off-site

releases of toxic chemicals into the Class Area, including the MMHF pit and the Milton Pit just

west of Bokoshe, Oklahoma, both located in LeFlore County. These releases include arsenic

compounds, barium compounds, chromium compounds, copper compounds, lead compounds,

manganese compounds, mercury compounds, nickel compounds, vanadium compounds and zinc

compounds.

103. AESSP’s releases of toxic chemicals at and into the MMHF pit and the Milton Pit

are substantial. During the period 1998 through 2012, the TRI indicates that 465,568 pounds of

arsenic compounds were generated at the AESSP plant. The MMHF pit and dump sites within

the Class Area received approximately 57% (266,660 pounds) of these arsenic compounds.

104. During this 14-year period, AESSP transferred and released large quantities of

hazardous metals from its plant. The TRI states that the AESSP plant generated and released

3,774,171 pounds of manganese compounds; 1,763,603 pounds of barium compounds; 538,955

pounds of zinc compounds; 429,395 pounds of vanadium compounds; 368,238 pounds of nickel

compounds; 367,398 pounds of chromium compounds; 204,867 pounds of copper compounds;

7,206 pounds of lead compounds; and, 6,472 pounds of mercury compounds. The MMHF pit


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and dump sites within the Class Area received approximately 60% of these hazardous metal

compounds.

105. AESSP’s TRI also documented the release of dioxin and dioxin-like compounds,

hydrochloric acid, sulfuric acid and polycyclic aromatic compounds from the AESSP plant into

the environment.

106. The CCW/Fly Ash generated at the AESSP plant and disposed of at dump sites

within the Class Area is transported to the dump sites by truck. The trucks hauling CCW/Fly

Ash from the AESSP plant to the dump sites follow a common route (the “Haul Route”).

107. The 7-mile Haul Route from AESSP through Bokoshe to the MMHF Dump Site

starts at County Road E1225. Trucks then travel west on County Road E1225 to US-59 and turn

south on OK-31, and proceed into the town of Bokoshe turning south on Mine Road and

traveling approximately one mile to the MMHF Dump Site.

108. The Haul Route includes the principal traffic ways used by LeFlore County

citizenry traveling to and from Bokoshe and the Class Area.

109. The trucks travel through populated areas, including areas populated by the

Putative Class Members. The trucks enter the town of Bokoshe and turn onto Mine Road within

2 blocks of the public school, the VFW, the town hall, and other public gathering areas, and

within 25 feet of Bokoshe’s only restaurant. All of these locations are within the Class Area.

110. As 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. CCW/Fly Ash generated at the AESSP 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


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Putative Class Members have been and continue to be exposed to CCW/Fly Ash generated at the

AESSP plant.

111. The MMHF Dump Site has been and continues to be the dump site into which

CCW/Fly Ash is disposed. AES, MMHF, and the CCW/Fly Ash Defendants dump CCW/Fly

Ash into the MMHF Dump Site to avoid and save the cost and inconvenience of proper, safe,

and legal disposal of the CCW/Fly Ash generated at the AESSP coal burning facility; thereby

increasing their profits.

The MMHF Dump Site Pit

112. Since the construction of the AESSP plant, CCW/Fly Ash has been dumped in

locations in the Class Area, primary among these locations is the MMHF Dump Site located one

mile south of the town center of Bokoshe.

113. Collectively, Defendants have disposed of CCW/Fly Ash, PFW, and other

contaminants in the pit at the MMHF Dump Site. Contaminants present in AESSP’s CCW/Fly

Ash and in the Produced Fluid Generators’ PFW disposed in MMHF’s pit have entered and are

entering surface water and shallow, potable groundwater located east of the pit. Surface water

and shallow potable groundwater located downgradient and east of the pit are polluted by and are

in contact with water and wastes exiting the MMHF Dump Site.

114. The MMHF Dump Site pit was formerly the Garland Coal & Mining Co. Bokoshe

No. 10 strip mine that advanced under the Dump Site to a depth of more than 100-feet below the

original surface. Prior to 2000, the water filled portion of the Dump Site pit was crescent-

shaped. The northern limb of the pit was approximately 500-feet wide and 2,500-feet long, and

the southern limb was approximately 300-feet wide and 1,800 feet long. Today, the southern

limb is buried beneath a large fly-ash pile, and the remaining water-filled portion of the MMHF


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Dump Site is the same size and shape previously stated for the northern limb of the water-filled

crescent. Coal from both the Upper and Lower Hartshorne Coal was produced from this mine.

Two abandoned underground mines are present beneath the MMHF pit, including its current and

former water-filled portion.

115. The MMHF Dump Site pit, upon information and belief, has no liner to contain

the hazardous and nonhazardous contaminants dumped into it by Defendants.

116. Stratigraphically, the MMHF Dump Site is located within the lower McAlester

formation and the upper portion of the underlying Hartshorne formation, both of which are in the

Pennsylvanian (Desmoinesian) Krebs Group. Within the vicinity of the MMHF Dump Site, the

McAlester formation is dominantly shale and thin interbedded sand units with a significant sand

member, the Warner Sandstone. The Warner Sandstone averages 100 feet thick near the

MMHF Dump Site, but is structurally and stratigraphically above the elevation of the top of the

pit and caps Bokoshe Mountain that rises immediately to the west of the MMHF Dump Site.

The Hartshorne formation is predominantly fine to very fine-grained, silty sandstone and gray

shale, and within the immediate vicinity of the MMHF pit is generally less than 200 feet thick.

Two coal intervals (Upper and Lower Hartshorne Coal) occur at and near the top of the

Hartshorne member, and are typically separated by 25 to 45 feet of shale and sandstone. These

coals were the targets of the surface and subsurface mining that produced the pit currently used

by MMHF for the disposal of AESSP’s CCW/Fly and the Produced Fluid Generators PFW.

117. Structurally, the MMHF pit is located within the Arkoma Basin of southeastern

Oklahoma, an area characterized by compressional tectonics that has produced significant

folding, faulting and fracturing. The MMHF Dump Site is located roughly astride the SW to NE

strike of the Backbone Anticline axis and is within the breached northeastern portion of the


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anticline. The Backbone Anticline is cut by the Backbone thrust fault across the northern portion

of the MMHF ash disposal pit. The strong folding and faulting of the Backbone anticline has

produced numerous fractures in its constituent geological formations. These fractures and faults

provide pathways for the CCW/Fly Ash and PFW pollutants to migrate from the pit and MMHF

Dump Site generally.

118. Chemical contaminants exit the MMHF Dump Site in surface water and

groundwater and flow eastward through the Class Area. Polluted surface and groundwater from

within and around the MMHF pit adversely impact water flowing across, though, and under the

Plaintiffs’ and Putative Class Members’ properties.

119. Surface drainage from the MMHF Dump Site is eastward and toward Plaintiffs

and Putative Class Members. The pre-mine channel of Doe Creek arises near the base of the

Warner Sandstone to the west of the MMHF Dump Site pit and passes easterly across the

northern portion of the MMHF Dump Site and thence east and north to its confluence with Buck

Creek which drains eastward into the Poteau River. Drainage from the MMHF Dump Site enters

Doe Creek through two culverts passing beneath Mine Road and episodically passes over Mine

Road as high water sheet flow.

120. Toxic chemical contaminants from AESSP and the PFW Generators are present in

water samples collected from Doe Creek. The Doe Creek effluent from the MMHF Dump Site

pit violates water quality standards.

121. Groundwater moving eastward from the MMHF Dump Site is contaminated with

chemical constituents present in oil-field PFW and CCW/Fly Ash disposed of by Defendants in

the MMHF pit. Water quality data obtained from monitoring wells drilled on the MMHF Dump

Site project site clearly demonstrate that the down gradient well (the easternmost monitoring


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well) is contaminated with chemical constituents present in oil-field produced water and ash

disposed in the MMHF ash disposal pit, and over the course of time this well was monitored, the

pollutant levels has increased from background levels to the levels found in pit water recovered

from the MMHF pit. Levels of chemical constituents found in water recovered from the most

up-gradient monitoring well have, upon information and belief, remained at background levels.

122. The geologic formations beneath and in the vicinity of the MMHF Dump Site are

permeable to groundwater movement. Monitor wells drilled on the MMHF Dump Site project

site to depths in excess of 100-feet were found to be filled with water to within less than 20-feet

of the surface 24 hours after these wells were completed. The permeability of these geologic

units arises from the numerous fractures present in these units as a consequence of the strong

folding and faulting of the Backbone anticline and fault and the compressional tectonics of the

area. This high degree of fracture permeability and the lack of any intact hydrogeological

confining layer means that surface water and groundwater are in communication at and in the

vicinity of the MMHF Dump Site and within the class area. Contaminated groundwater and

contaminated surface water commingle in the vicinity of the MMHF Dump Site pit and within

the Class Area.

123. Fine particulate matter in the CCW/Fly Ash disposed at the MMHF Dump Site as

well as from CCW/Fly Ash released during coal combustion, and during CCW/Fly Ash loading,

hauling and dumping is carried into the Class Area by winds the direction and velocity of which

vary so as to disperse these particulates in all compass directions, some more dominant than

others. The presence of Bokoshe Mountain tends to redirect easterly winds northward toward

the city of Bokoshe.


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CCW/Fly Ash – A Hazardous Pollutant

124. The crushed coal and crushed limestone combusted at AESSP’s power plant

produces the CCW/Fly Ash waste byproducts which must be captured, contained and disposed of

in a manner that protects the plant employees and the public, including Plaintiffs and Putative

Class Members, from coming in contact with, ingesting or inhaling the dangerous and hazardous

wastes.

125. The CCW/Fly Ash generated is highly mobile in the air and water. CCW/Fly Ash

generated at the AESSP plant escapes and is released in the Class Area. When CCW/Fly Ash

escapes from confinement or is released into the environment, even slight disturbances of the

fine-grained waste will cause it to become suspended in the air. Once in the air it can remain

airborne over great distances and is widely disbursed.

126. AESSP does not have a CCW/Fly Ash disposal facility onsite. Therefore, it

transports or causes others to transport and dump the hazardous and dangerous waste at several

open pit dump sites within the Class Area, primarily, the MMHF Dump Site.

127. AESSP must take precautions to protect the public from coming into contact or

inhaling the CCW/Fly Ash during transport and disposal at the various open pit dump sites

within the Class Area.

128. Fly ash contains numerous toxic, hazardous and harmful substances. The

generation, storage, transport, and disposal of CCW/Fly Ash are dangerous activities which pose

unusual and serious threats of harm if the CCW/Fly Ash is released or permitted to escape into

the atmosphere, surface water, or groundwater.


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129. As a CCW/Fly Ash generator, AESSP is required to publish Material Safety Data

Sheets (“MSDS”) which disclose the hazardous and dangerous properties of CCW/Fly Ash, and

provide direction in the event that persons come in contact with, ingest or inhale CCW/Fly Ash.

130. By at least 1998, AESSP’s MSDS warnings required medical attention for anyone

who got CCW/Fly Ash in their eyes or on their skin or who ingested or inhaled CCW/Fly Ash or

Fly Ash-laden dust. AESSP is further required to maintain safety controls, protective equipment

and work apparel for persons working in and around CCW/Fly Ash. Such controls, equipment

and apparel include ventilation, respirators, safety goggles and full-cover safety clothing.

AESSP has not maintained preventative or safety controls, equipment or apparel and neither has

it offered to provide such protection or medical care to Plaintiffs and Putative Class Members.

131. Other generators and handlers of CCW/Fly Ash incorporate and expand upon

AESSP’s MSDS. For instance, other generators and handlers admit and acknowledge that

CCW/Fly Ash is an irritant, corrosive and even a toxic substance. It has the potential to cause

severe chemical burns to the eyes and skin. If ingested, CCW/Fly Ash can produce burns to the

mouth, throat and esophagus, in addition to stomach distress, nausea and vomiting. Inhalation

also poses a serious health risk as CCW/Fly Ash can result in irritation to the nose, throat and

upper respiratory tract. It can also result in lung disease or lung cancer. Any pre-existing eye,

skin, upper respiratory or lung disease may be aggravated or worsened by coming in contact with

CCW/Fly Ash.

132. Generators and handlers of CCW/Fly Ash within the State of California, in

conformance with the laws of that state, must disclose that CCW/Fly Ash contains chemicals

known to cause cancer, birth defects or reproductive harm. See California Proposition 65.


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133. The CCW/Fly Ash generated at the AESSP plant which is transported and

disposed of at MMHF’s Disposal Pit and which is released or permitted to escape contains

numerous heavy metals, known carcinogens, and other toxic constituents. Among them are:

a. Arsenic;

b. Barium;

c. Cadmium;

d. Chromium;

e. Copper;

f. Lead;

g. Molybdenum;

h. Nickel;

i. Selenium;

j. Zinc;

k. Mercury; and

l. Polycyclic Aromatic Hydrocarbons (“PAH”).

134. The CCW/Fly Ash generated at the AESSP plant and released throughout the

Class Area contains tons of abnormally dangerous quartz crystalline silicates and other

hazardous particulate matter less than 10 and 2.5 micrograms (PM10 and PM2.5) in size. This

poses a known and extremely serious health risk to Plaintiffs and Putative Class Members.

Particulate matter of this size is known to disperse into the air and when inhaled to lodge deeply

within the lungs leading to silicosis or respiratory ailments, including aggravation or worsening

of pre-existing conditions. This fine particulate matter is further known to enter the bloodstream


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of those whom inhale it and cause cardiovascular disease, cancer and other serious systemic

conditions.

MMHF and Regulatory Non-Compliance

135. MMHF was formed in 1997 by the Jackson brothers. Prior to making application

to any state agency, MMHF began accepting AESSP’s CCW/Fly Ash for disposal.

136. On February 17, 1998, inspectors of the ODEQ’s Solid Waste Compliance Unit

went to the MMHF pit to investigate a complaint of pollution. The investigation revealed that

fly ash has been disposed on this property. The fly ash has been disposed on a roadway next to

an abandoned coal mining pit which is currently filled with water. Run-off from the disposed fly

ash flows into this water.

137. The ODEQ found that MMHF’s actions constitute a violation of Oklahoma Solid

Waste Management Act (27A O.S. Supp. 1997, §2-10-101 et seq.), as follows:

27A O.S. §2-10-301(A)(2) and 27A O.S. §2-6-105. No person shall own or operate a site or facility at which solid waste is disposed other than a site or facility for which a permit for solid or hazardous waste disposal has been issued by the Department … It shall be unlawful for any person to … place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, land or waters of the state. Any such action is hereby declared to be a public nuisance. If the Executive Director finds that any of the air, land or waters of the state have been, or are being, polluted, the Executive Director shall make an order requiring such pollution to cease within a reasonable time, or requiring such manner of treatment or of disposition of the … polluting material as may in his judgment be necessary to prevent further pollution. It shall be the duty of the person to whom such order is directed to fully comply with the order of the Executive Director.

138. On March 23, 1998, ODEQ issued a Notice of Violation for illegal disposal of fly

ash in LeFlore County by TUR. The violation specifically states that TUR has allowed the


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disposal of fly ash on the property. The NOV further stated that a permit for this disposal has not

been issued by the ODEQ or any other lawful authority.

139. On December 3, 1998 and again on December 7, 1998, ODEQ visited the MMHF

site in response to additional complaints of fugitive dust coming from the disposal site and

entering the complainant’s property and house.

140. On December 3, 1998, ODEQ’s representative Joe Glover observed fugitive dust

generated by dump trucks dumping fly ash on the ground. Wind carried the fugitive dust across

the facility’s property line. A formal “Warning Letter” was issued at the fly ash disposal site at

that time.

141. During the inspection of December 7, 1998, Mr. Glover observed fugitive dust

generated by the unloading of fly ash from an end dump truck. Mr. Glover observed fugitive

dust generated by a bulldozer plowing fly ash into a strip pit. Mr. Glover observed the generated

fugitive dust as it crossed over the facility’s line onto adjacent property.

142. In its letter dated January 5, 1999, ODEQ states “MMHF, LLC owns and operates

a fly ash disposal site located in the NE ¼ SE ¼ Sec. 28 9N 26E, Thumbs Up Ranch, LeFlore

County, OK. The site consists of abandoned coal mining strip pits. Contracted trucking hauls

the fly ash from the AES coal-fired, electric generating facility to the disposal site. At the site,

trucks unload the fly ash directly to the ground at the edge of the strip pits. A dozer is used to

push the fly ash into the pits. Alternatively, the trucks that have bottom bay openings empty fly

ash through an apparatus that utilized water to wash the fly ash immediately into the strip pit.”

143. On January 5, 1999, ODEQ alleged that “MMHF, LLC is subject to the

Oklahoma Air Pollution Control Rules, Oklahoma Administrative Code (Okla. Admin. Code)


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252:100-29, Control of Fugitive Dust. Section 2(b), Emission boundaries, of Subchapter 29,

states in part, the following:

No person shall cause or permit the discharge of any visible fugitive dust emissions beyond the property line on which the emissions originate in such a manner as to damage or to interfere with the use of adjacent properties, or cause air quality standards to be exceeded, or interfere with the maintenance of air quality standards.

144. On January 5, 1999, ODEQ further alleged that “MMHF, LLC is operating the

referenced fly ash disposal site in violation of Okla. Admin. Code 252:100-29-2.”

145. On January 27, 1999, ODEQ received a copy of TUR’s Permit to Engage in Non-

Coal Mining granted by the ODM.

146. On February 2, 1999, ODEQ sent a letter to TUR stating that the reclamation

activities of the pit no longer fall under the ODEQ’s jurisdiction; therefore, the March 23, 1998

Notice of Violation has been closed out. Please note that in accordance with the ODEQ’s May

11, 1998 letter, any activities which may be conducted outside the authority of the permit may be

subject to regulation by the DEQ or another state agency.

147. On May 2, 2000, MMHF submitted an Application to mine shale and clay to the

Oklahoma Department of Mines (“ODM”) and to concomitantly accept and dispose of CCW/Fly

Ash/Fly Ash from AESSP at the pit. CCW/Fly Ash/Fly Ash was to be the only industrial waste

accepted at the open pit dump site.

148. The ODM received objection letters to issuance of said permit from Kenneth

Darvel, Mylisie Sinclair, Harold, Peggy and Amanda Summers, Helen Ford, Jackie Tackett,

Plaintiff Diane Reece, Plaintiff Herman Tolbert, Sharon Tolbert, George L. and Jewel L. Pickle,

Ronald and Sandra Buchholz, Mrs. Bobbie Hammons, Virgil and Ann Webster, John and Pamela

Phillips, Naomi Porter, Plaintiff Charles Tackett, Lisa Tackett, Jerry and Shirley Holter, Jerry


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and Kris Huggins, Plaintiff Bill Reece, Charles Wells, Elizabeth Dodson, Chester and Wander

Garner and Robert Entzminger.

149. On August 18, 2000, MMHF sent a letter to Plaintiff Herman Tolbert and Sharon

Tolbert. Defendant Daryl Jackson asked Mr. Tolbert to withdraw his letter of protest based on

assurances that all of Mr. and Mrs. Tolbert’s concerns. In his letter, Mr. Jackson admitted that

“air born dust or fly ash is a nuisance to any operation, to adjacent property owners and to

neighborhoods.” He promised to use: (1) new water slurry techniques; (2) all trucks transporting

the fly ash to the disposal site will be done by enclosed belly dump trailers; (3) no open end or

tarp trailers will be used; and (4) the belly dump trailers would be pulled over a steel grade bin

with all direction of water sprayers. Mr. Jackson goes on to state “this new technology has

minimized the escape of dumped fly ash into the air and prevents most of the nuisance air

pollution from drifting onto adjacent property owners.” (emphasis added) It was MMHF’s

position that property values would not be affected by its operation assuming MMHF complied

with all permitting, statutory and regulatory requirements. Mr. Jackson further admits that when

fly ash is dumped by “end dump” trailers into the pit, or onto a bank and dozed into the pit, such

causes “a plume-like cloud of ash material rising into the air.”

150. An informal conference was held on September 13, 2000. Many of the protestors

appeared including the following: Evelyn Davies, Richard Hays, Trefreh Brown, Pete Ristine,

Angela Rinchen, Donnie Crow, Harold Statham, James Tackett, Gene Webster, Ann Cosgrove,

Carl Cosgrove and Chance Cole.

151. At the hearing, Plaintiffs Diane Reece and Herman Tolbert offered testimony

consistent with the concerns and objections of other protestors. Such concerns included: (1) road


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safety; (2) fugitive dust; (3) groundwater contamination; (4) surface water contamination; and (6)

asthma and other respiratory ailments.

152. At the September 13, 2000 hearing, Defendant Daryl Jackson testified that the

MMHF “operation will consist of trucking in imported fly ash consisting of approximately 90%

lime dust and 10% ash for disposal. The fly ash will be dumped from the haul trucks into a large

water tank to wet the fly ash and then slurried into the old coal strip pit … The applicant has two

(2) 8K gallon water trucks to be used on the county road and the haul roads in the proposed

permit area for dust control … Applicant plans on operating approximately four days per week,

day time only … No public sales or exporting … Operations will cease when winds reach 25

mph.”

153. Upon information and belief, the MMHF Defendants failed to comply with all of

the promises and assurances made by Defendant Daryl Jackson.

154. On April 16, 2001, the permit was issued to MMHF. The permit number issued

by the ODM is Permit No. LE-1857. The estimated fill date is 2036. Under the ODM permit,

the facility is required to develop standard operating procedures for the disposal of ash and

sampling requirements from the surface ponds and groundwater monitoring wells located onsite.

In addition, the facility is required to develop a closure plan when the disposal pit is filled. The

closure plan involves the capping of the disposal pit with a layer (1.5’) of overburden material

such as shale and a layer (6”) of topsoil prior to grassing the area.

155. In July, 2002 an EPA inspection report stated that “significant amounts of fugitive

ash were seen every time a load of ash was dumped into the recirculating water stream.”

156. On February 12, 2009, Billy (Chipper) Klutts called the Department of Mines to

“complain about the fly ash disposal from the AES Power Plant into the old coal surface mined


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strip pits (Garland Coal) near his home in Bokoshe, Oklahoma. He complained that there was no

dust control for this operation as well as concerned about the contaminants entering the

groundwater from this disposal practice.”

157. On February 17, 2009, ODEQ staff conducted a visit to MMHF. During the visit,

DEQ staff observed significant amounts of fugitive ash being emitted into the air (approximately

25-40 feet high and 440 yards away, depending on the wind condition) every time a load of ash

was dumped into the disposal pit.

158. At the February 17, 2009 visit, the Jackson brothers made the following

representations and misrepresentations to the ODEQ inspectors:

a. The facility is located in an area that is approximately 750 acres, where

329 of the acres are bonded area (mine reclamation) and 156 of the acres are permitted

for the ash disposal activity.

b. The ODM permit allows MMHF to accept fly ash and bottom ash from

AES Shady Point. The ash is transported in either belly or back dump trucks. The trucks

are to be covered to prevent ash from escaping during transportation from AES Shady

Point to the facility. At the facility, the trucks drop the ash through a steel grate that is

located atop a water discharge point.

c. According to AES Shady Point, approximately 31,400 tons of ash is

disposed at MMHF per month. Prior to leaving the AES facility, the trucks are sprinkled

with water to remove ash residue attached to the trucks.

d. The ODM permit allows the facility to accept brine wastewater from the

petroleum industry.

e. MMHF accepts brine wastewater 24-hours per day and 7-days per week.


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f. The brine wastewater that contains high levels of TDS (>5000 mg/l) is

discharged into a lined 33 mm pond.

g. Water from several storm water ponds are pumped and mixed with the

brine wastewater to dilute the TDS concentration.

h. The Jackson brothers informed ODEQ staff that the facility understands

that the fugitive ash is a concern and is working to have the problem resolved in the next

couple of months.

i. The Jackson brothers discussed the facility plans to have the dumping

process enclosed in a building with a vacuum system to remove the fugitive ash. This

would dramatically reduce the fugitive ash being emitted into the air. If approved, the

construction would be completed within six (6) months.

159. On February 17, 2009, ODEQ came to the regulatory conclusion that fugitive ash

is an issue at the MMHF facility. The ODEQ Air Quality Division has jurisdiction over fugitive

dust. The visit revealed that the facility does not have an Air Quality Division permit.

160. On April 24, 2009, following numerous citizen complaints regarding Defendants’

conduct in transporting and disposing of Fly Ash, ODEQ performed an air quality full

compliance evaluation (“FCE”). Pursuant to an Open Records Request, Plaintiffs obtained a

copy of the ODEQ’s report and conclusions. The FCE states in part that:

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. . . MMHF has potential


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emissions of more than 100 TPY of PM and is a major source. MMHF does not meet any of the exemptions listed in (b) and is a major source and subject to the permitting requirements. MMHF did not obtain a DEQ-issued air quality construction permit at the time of construction nor have they applied for one. MMHF has been operating at this location for 6.5 to 7 years.1 DEQ has no record of receiving an operating permit application from MMHF. MMHF has the potential to emit more than 250 TPY of PM10 and is therefore a major PSD stationary source. MMHF is a major stationary source and has not applied for nor been issued a construction permit. MMHF is not taking reasonable precautions to minimize pollution ... [MMHF] is not utilizing any method to control dust . . . MMHF is not removing the piles of dry ash . . . nor taking any measure to control the dust from the piles . . . MMHF is not utilizing any ground cover …

161. In its FCE, the ODEQ concluded that MMHF was operating in violation of the

laws of Oklahoma, specifically: Okla. Admin. Code 252:100-5.2.1(a); 252:100-8-4(a)(1);

252:100-8-4(b)(1); 252:8-30(a)(3); and 252:100-29-2(a).

162. On May 1, 2009, the ODEQ inspectors met Ken Jackson at the entrance to

MMHF. The group went directly to the area where water and ash are unloaded. The ODEQ

inspectors made the following observations:

a. The water is generated from oil and gas production and arrives at the

facility from various haulers and various sources.

b. The ash is generated from AES Shady Point.

1 At the time it issued its FCE, it appears that ODEQ was unaware that MMHF and the CCW/Fly Ash Defendants had actually been unlawfully transporting, storing and disposing of CCW/Fly Ash at the MMHF Dump Site since the late-1990s, for a total of eleven to fourteen years at the time FCE was completed.


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c. AES is the coal-fired power plant and is the only source of ash for

MMHF.

d. The ash arrives via truck and is unloaded by “belly dumping” the ash

through a grate into moving water creating a slurry that is gravity fed to drying ponds.

e. 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.

f. The road to the unloading area is unpaved and was dry and dusty at the

time the evaluation began, and was not sufficiently wet while the water truck was in

operation to reduce the dust throughout ODEQ’s evaluation.

163. On May 1, 2009, ODEQ found that MMHF is operating in violation of:

a. Okla. Admin. Code 252:100-5.2 1 (a) failure to submit an emission

inventory;

b. Okla. Admin. Code 252:100-8-4 (a)(1) failure to apply for an obtain a

construction permit;

c. Okla. Admin. Code 252:100-8-4 (b)(1) failure to file a timely application

for an operating permit;

d. Okla. Admin. Code 252:8-30 (a)(3) failure to obtain a construction permit;

and

e. Okla. Admin. Code 252:100-29-2 (a) failure to take reasonable

precautions.


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164. On June 9, 2009, Bokoshe resident Evelyn Davies filed a Complaint Form with

the ODEQ stating that the MMHF pit has a large pit of fly ash that is leaving the property. She

stated that due to high winds, more than usual fly ash is covering the surrounding area.

165. MMHF and the CCW/Fly Ash Defendants continue to dispose of their waste in a

manner that pollutes and contaminates the environment and community within the Class Area.

Produced Fluid Waste

166. Produced Fluid Waste (“PFW”) is defined as those waste fluids and solids which

are generated by operators during the course of oil and gas drilling and completion operations.

PFW includes saltwater, sand, acid, oil-based drilling fluids, water-based drilling fluids,

completion flowback fluid, frack flowback fluid, workover flowback fluid, rainwater gathered on

drilling and production sites, drilling cuttings, pit water, including frack, mud, circulation and

reserve pits, and numerous other fluids and solid wastes generated during the exploration and

completion of oil and gas wells.

167. “Produced Water” is defined as the water that exists in subsurface formations and is

brought to the surface during oil and gas production.

168. In September, 2002, MMHF sought permission from the Oklahoma Corporation

Commission (“OCC”) to accept Produced Water from oil and gas wells provided the total

dissolved solids (“TDS”) chemical characteristics did not exceed 5,000 mg/ producing from

“coal seam gas” formations.

169. The PFW disposed of at the MMHF Dump Site was not Produced Water as

permitted by OCC. Rather, the PFW disposed of at the pit was oil, water, and synthetic-based

drilling waste solids and fluids; completion flowback waste solids and fluids; and frack flowback

waste solids and fluids generated during the drilling and completion phases of PFW Generator

Defendants’ oil and gas wells set forth in FAC Paragraph Nos. 37 through 49.


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170. In February 2003, the OCC issued its Order No. 472170 permitting only “the

disposal of water produced in association with oil and gas wells producing coal seam gas” into

the MMHF Dump Site pit.

171. OCC Order No. 472170 is a matter of public record and the PFW generators and

operators were burdened with knowledge of the order and its restrictions.

172. 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.

173. In May 2004, MMHF sought to amend the scope of Order No. 472170. MMHF

wanted to accept “drilling waste and/or drilling water” from operations produced from “any

geologic zone or common source of supply.” MMHF never received regulatory permission to

accept “drilling waste and/or drilling water.”

174. In June 2004, MMHF dismissed its request to accept “drilling waste and/or

drilling water.”

175. In June 2004, OCC Order No. 491749 permitted MMHF to accept “fresh water

with TDS of 5,0000 mg/l or less” from “any geologic zone or common source of supply.”

176. The limitations set forth in Order No. 491749 notwithstanding, MMHF and the

PFW Defendants continued to dispose of PFW in the MMHF pit and did not limit their disposal

to “fresh water with TDS of 5,0000 mg/l or less” as required by the OCC.

177. On January 18, 2008, OCC Order No. 549096 permitted MMHF 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


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pit.” The limitations set forth in Order No. 549096 notwithstanding, MMHF and the PFW

Defendants continued to dispose of PFW in the MMHF pit and did not limit their disposal to

Produced Water with TDS of 5,000 mg/l or less as required by the OCC.

178. Upon information and belief, MMHF never altered or abated its practice of

disposing of PFW in violation of the OCC Orders and safe practices.

179. At all times between 2003 and 2009, the PFW Defendants disposed of PFW from

oil and gas drilling and completion operations at the MMHF Dump Site in violation of OCC

Orders and safe disposal practices.

180. OCC Rule 165:10-7-24(b)(3) specifies the requirements for the management and

disposal of flowback and other liquids from hydraulic fracturing operations. Discharge of

flowback and hydraulic fracturing fluids to surface waters is prohibited. Nonetheless, the PFW

Defendants intentionally sent flowback and other hydraulic fracturing waste fluids from the wells

set forth in FAC Paragraph Nos. 37 through 49 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).

181. Between January 1, 2003 and December 31, 2009, the PFW Generator Defendants

conducted drilling, completion and fracking operations on their respective wells identified in

FAC Paragraph Nos. 37-49. As the operators of these wells, the PFW Defendants 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.

182. Upon information and belief, in the course of the drilling, completion and

fracking operations at their respective well sites, the PFW Defendants acquired, created,

generated, stored, and disposed of significant volumes of toxic, nonhazardous, hazardous, and

regulated, chemicals, chemical compositions, silica quartz crystalline particulate matter


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(“proppant”), metals, solvents, acids, salts, corrosives, anti-corrosives, refined petroleum

products, polymers, surfactants, and other regulated harmful constituents. These 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.

183. The PFW generated by the PFW Defendants and disposed of into the MMHF pit

present significant health risks to Plaintiffs, Putative Class Members, and the Class Area

environment. As PFW generators, the PFW Defendants bear full responsibility for proper

disposal of the drilling, completion, and frack flowback wastes.

184. The PFW Defendants know or should have known that no drilling, completion,

and frack waste generator may escape or avoid responsibility and liability for the improper

loading, transport, unloading and disposal of PFW by causing or allowing the improper disposal

of oil and gas wastes or by utilizing the services of a waste transporter (FAC Paragraph Nos. 50-

57) or waste receiver (MMHF) who improperly disposes of the waste.

185. The PFW Defendants knew or should reasonably have known that the waste

transporters (FAC Paragraphs Nos. 50-57) and waste receiver (MMHF) of PFW generated in

connection with the wells identified in FAC Paragraph Nos. 37-49, would, and in fact did,

engage in the improper and harmful disposal of the wastes generated by the PFW Defendants.

186. As set forth in the following Material Safety Data Sheets (“MSDS”) excerpts

characterizing chemical constituents in the PFW disposed of in the MMHF Dump Site pit,

Plaintiffs, Putative Class Members and the Class Area environment have been and continue to be

exposed to hazardous, abnormally dangerous contaminants that present significant health and

safety risks:


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a. HCL Acid: (1) Very toxic material causing immediate and serious

effects. (2) Toxic by inhalation. (3) Chronic exposure may result in malaise, headache,

sleeping disturbances and irritability, changes in pulmonary function, chronic bronchitis, dermatitis, decay and erosion of dental enamel, bleeding of nose and gums, nasal and oral mucosal ulceration, conjunctivitis, and overt upper respiratory tract abnormalities.

(4) Destructive to the mucous membranes and upper respiratory tract eyes and skin.

(5) May cause inflammation and edema of the larynx, bronchi and pulmonary tract.

(6) Repeated or prolonged exposure may cause erosion of the teeth.

(7) Disposal considerations – Responsibility for proper waste disposal rests with the generator of the waste.

b. Acid Mixture No. 1:

(1) May cause eye, skin and respiratory irritation. (2) May cause headache, dizziness and other central

nervous system effects. (3) May cause stomach discomfort, cause kidney damage,

affect the blood and blood system, or cause thyroid damage if swallowed.

(4) May cause birth defects. (5) Is a potential carcinogen. (6) Its principal route of exposure is eye or skin contact and

inhalation. (7) Aggravates medical conditions, such as liver disorders,

eye ailments and skin disorders. (8) Chronic effects/carcinogenicity: prolonged or repeated

exposure may cause embryo and fetus toxicity; contains thiourea, a suspected carcinogen of the liver and thyroid; chronically high exposures cause bone marrow depression with anemia, leucopenia and thromboxytopenia; prolonged or repeated exposure may cause liver, heart, blood and brain damage; prolonged or repeated exposure may cause reproductive system damage; and prolonged or repeated exposure may cause kidney damage.

c. Sand – 40/60 Wedron Special Frac

(1) Caution! – Acute Health Hazard.


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nervous system effects. (4) Danger! – Chronic health hazard. (5) Breathing crystalline silica can cause lung disease,

including silicosis and lung cancer. (6) Crystalline silica has also been associated with

scleroderma and kidney disease. (7) Contains quartz, cristobalite and/or tridymite which

may become airborne without a visible cloud. (8) Avoid breathing dust. (9) Avoid creating dusty conditions.

d. Water Frac G with KCL

(1) May cause eye, skin and respiratory irritation. (2) Aggravates medical conditions – skin disorders.

e. Diesel fuel


nervous system effects. (3) May be harmful if swallowed. (4) Potential carcinogen. (5) Contains petroleum distillates which have been shown

to cause skin cancer in laboratory animals.

f. Sam-4 Spacer (1) Caution! – Acute Health Hazard. (2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central



scleroderma and kidney disease. (7) This product contains quartz, cristobalite and/or

tridymite which may become airborne without a visible cloud.

(8) Avoid breathing dust. (9) Avoid creating dusty conditions.

g. Sem 7

(1) May cause eye, skin, and respiratory irritation. (2) May cause headache, dizziness and other central

nervous system effects.


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(3) Repeated overexposure may cause liver and kidney effects.

h. Barite (1) Caution! – Acute Health Hazard. (2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central





i. Bentonite

(1) Caution! – Acute Health Hazard. (2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central





j. Morflo III Surfactant

(1) May cause eye and skin burns. (2) May cause headache, dizziness and other central

nervous system effects. (3) May cause allergic skin reaction.

k. Halad(R)-322


nervous system effects.

l. Halad 322L NG Cement additive (1) May cause eye and skin burns.


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(2) May cause respiratory irritation.

m. HR-800 (1) May cause mechanical skin irritation. (2) May cause mechanical irritation to eye. (3) In high air concentrations: May cause irritation (upper

respiratory) which includes soreness of the nose and throat, coughing and sneezing.

(4) Disposal method – bury in a licensed landfill according to federal, state and local regulations.

n. KCL potassium chloride

(1) May cause eye, skin and respiratory irritation.

o. Econocem Cement (1) Caution! – Acute Health Hazard. (2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central





p. Kol-Seal

(1) May cause eye irritation. (2) May cause delayed injury to lungs. (3) Aggravated medical conditions – lung disorders. (4) Prolonged or repeated exposure may cause lung

damage. (5) Disposal method – bury in a licensed landfill according

to federal, state and local regulations.

q. Poly-E-Flake (1) Chemical name – polyester

r. Slick water hydrofracking – chemical additives frequently used

include: (1) Diesel fuel (2) Biocides


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(3) Benzene (4) Hydrochloric acid

s. Benzene

(1) Potential acute health effects – very hazardous in case of eye contact, of inhalation. Hazardous in case of skin contact, of ingestion. Inflammation of the eye is characterized by redness, watering and itching.

(2) Carcinogenic effects – Classified A1 (confirmed for human).

(3) Mutagenic teratogenic effects – Classified POSSIBLE for human. Mutagenic for bacteria and/or yeast.

(4) Developmental toxicity – Classified reproductive system/toxin/female. POSSIBLE. The substance is toxic to blood, bone marrow, central nervous system. The substance may be toxic to liver, urinary system. Repeated or prolonged exposure to the substance can produce target organs damage.

(5) Acute potential health effects: i. Skin – causes skin irritation. It can be

absorbed through intact skin and affect the liver, blood, metabolism and urinary system.

ii. Eyes – causes eye irritation. iii. Inhalation – causes respiratory tract and

mucous membrane irritation. Can be absorbed through the lungs. May affect behavior/central and peripheral nervous systems (somnolence, muscle weakness, general anesthetic, and other symptoms similar to ingestion), gastrointestinal tract (nausea), blood metabolism, urinary system.

iv. Ingestion – may be harmful if swallowed. May cause gastrointestinal tract irritation including vomiting. May affect behavior/central and peripheral nervous systems (convulsions, seizures, tremor, irritability, initial CNS stimulation followed by depression, loss of coordination, dizziness, headache, weakness, pallor, flushing), respiration (breathlessness and chest constriction), cardiovascular system (shallow/rapid pulse), and blood.


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t. Isopropanol (1) Causes respiratory tract irritation. (2) Causes eye irritation. (3) Can enter lungs and cause damage. (4) May cause nervous system depression. (5) Target organs – central nervous system, respiratory

system, eyes, skin.

u. Acid solvent preflush with Paragon 100 E+, Musol A and Hyflo IV (1) May cause eye, skin and respiratory irritation. (2) May cause headache, dizziness and other central

nervous system effects. (3) Aggravated medical conditions – eye ailments, skin

disorders.

187. Upon information and belief, the MMHF Dump Site received and disposed of

substantially in excess of 240,000,000 gallons of PFW during the years 2003 through 2009. The

PFW dumped into 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. PFW,

CCW/Fly Ash, and other contaminants dumped by Defendants into the Disposal Pit have been

allowed to migrate into porous rock layers exposed by the pit excavation, into groundwater-

bearing horizons exposed by the pit walls and floor and have been subjected to the migration of

pollutants as a result of the pressures exerted by the fluids with which MMHF continuously fills

the pit.

188. This is evidenced in-part by the Environmental Protection Agency’s (“EPA”)

inspections on October 13, 2009, and December 2, 2009. At both inspections the EPA “observed

unauthorized, non-permitted discharges of pollutants generated from reclamation activities

conducted by MMHF which involved mixing fly ash and oil field brine.” The EPA inspector

documented that produced wastewater was being unlawfully discharged from the Disposal

Facility to “waters of the United States.”


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189. Testing of the water demonstrated that the water was polluted and toxic

measuring between 900 and 4,200 parts-per-million total soluble salts (“TSS”). The maximum

allowed amount for TSS is 500 parts-per-million.

190. As a result, the EPA issued a Cease and Desist Order on December 10, 2009 for

violation of the Clean Water Act. Additionally, and as chronicled above, the MMHF Dump Site

is located in and over the extensive, labyrinthine corridors of at least two abandoned coal mines

which underlie and extend beyond the Disposal Pit and under surrounding lands. These

abandoned coal mine shafts provide enhanced pathways for the migration of Fly Ash and PFW

pollutants into surrounding groundwater-bearing horizons and serve to accelerate the spread of

pollution from the MMHF Dump Site. The presence, location, and delineation of the abandoned

coal mines under the Disposal Pit were, at all times relevant, to Plaintiffs’ claims, matters of

public record readily available to Defendants. The opening, maintenance, and operation of a

disposal pit located over or in close proximity to abandoned or operating horizontal shaft coal

mines for the purposes of receiving PFW, CCW/Fly Ash, or both, are prohibited by Oklahoma

law and State regulatory enactment.

Damages

191. The CCW/Fly Ash, MMHF and PFW Defendants have released and permitted the

escape of toxic and harmful pollutants into the air, land and waters of the Class Area.

Defendants’ actions are intentional, reckless, negligent and carried on for profit, with knowledge

that the populace unfortunate enough to live, work, or recreate within the Class Area will suffer

harm to their person, property, community and environment.

192. Plaintiffs and the putative class members live, work, recreate, fish, hunt, hike, trail

ride on horses and mules in the areas most immediately affected by Defendants’ acts and


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omissions. Defendants’ acts and omissions cause injury to Plaintiffs’ and the Putative Class

Members’ health and their aesthetic, recreational, environmental, economic, and educational

interests in these areas.

193. Set against a scenic backdrop of dogwood, northern spruce and ponderosa pines,

the Class Area is a restful haven for lovers of the outdoors. The Class Area offers some of the

finest fishing, hunting and outdoor recreation in Oklahoma.

194. Plaintiffs and the Putative Class Members are reasonably concerned about harm

to their health from breathing air contaminated with particulates from coal dust, CCW/Fly Ash

and PFW blown from the AESSP plant, the haul roads, the MMHF Dump Site and other open

disposal sites within the Class Area. Plaintiffs and Putative Class Members are also concerned

about the threat to their health caused by needing to shutter themselves indoors, including during

hot weather, so as to avoid exposure to winds that entrain contaminants from the AESSP plant,

the haul roads, the MMHF Dump Site and other open disposal sites within the Class Area.

195. Plaintiffs and Putative Class Members utilize the Poteau River, Doe and Buck

Creek for swimming, fishing, hunting and crops. Plaintiffs and Putative Class Members are

reasonably concerned that the CCW/Fly Ash and PFW contamination of these water sources and

direct deposition of CCW/Fly Ash and PFW impairs the safety of the creeks for swimming and

for consuming fish caught from the creeks, or game shot nearby that may have ingested the creek

water contaminated by CCW/Fly Ash and PFW. As well, Plaintiffs and Putative Class Members

are concerned about the safety of handling and using crops harvested along the banks of these

water sources.


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196. Plaintiffs and Putative Class Members attempt to grow vegetables in their home

gardens and are reasonably concerned that toxic CCW/Fly Ash and PFW renders their soil and

vegetables unsafe or otherwise impairs its quality.

197. Plaintiffs and Putative Class Members have seen and smelled the CCW/Fly Ash

disposed of in their community, including the fugitive dust clouds generated during periods of

high wind.

198. Plaintiffs and Putative Class Members derive recreational, environmental,

aesthetic and health benefits from their activities in exploring the lands and rivers of the area and

Plaintiffs and Putative Class Members intend to continue to use and enjoy these and other public

lands, wildlands, wildlife habitat, rivers, streams and environs. However, the environmental,

health, aesthetic and recreational interests of Plaintiffs and Putative Class Members have been,

are being, and will be adversely affected by Defendants’ disposal and discharges of CCW/Fly

Ash and PFW, as Plaintiffs reasonably believe that these activities are contaminating the Class

Area’s air, land and waters.

199. Plaintiffs and Putative Class Members additionally suffer physical ailments

consistent with disclosures and warnings set forth on MSDS. These include, but are not limited

to, respiratory conditions, such as asthma and bronchial and nasal infections, and skin and eye

irritations. Within the Class Area, there have been and continue to be significant concentrations

of cancer victims.

200. Plaintiffs and the Putative Class Members are reasonably concerned that unless

the relief requested herein is granted, their health, property, community and environment will

continue to be adversely affected by Defendants’ past and continuing acts and omissions.


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CAUSES OF ACTION

First Claim for Relief – Abnormally Dangerous Activity/Strict Liability (All Defendants)

201. Plaintiffs incorporate herein by reference paragraphs 1 through 200.

202. The CCW/Fly Ash, MMHF and PFW Defendants are collectively the sources of

the CCW/Fly Ash and PFW which has been transported to, disposed of in, and escaped into the

Class Area.

203. CCW/Fly Ash and PFW contain hazardous, toxic and harmful constituents and

chemicals capable of causing severe personal injuries and harm to the air, land and waters of the

Class Area.

204. All 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.

205. An open, unlined pit adjacent to a populated community and which is in

communication with surface and ground waters is a particularly inappropriate and dangerous

disposal site and one that is not a matter of common usage.

206. Open unlined pit disposal of hazardous and toxic nonhazardous waste offers no

benefit to the community, but poses great danger to the populace and environment.

207. Taking all relevant circumstances into consideration, Defendants’ handling,

transport and disposal activities of CCW/Fly Ash and PFW are abnormally dangerous.

208. Defendants’ abnormally dangerous activities have caused harm to Plaintiffs and

Putative Class Members’ person and property and the environment of the Class Area, including

its air, land and waters.


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209. Defendants are therefore strictly liable without regard to fault for all damages and

injuries proximately caused by their handling, transport, and disposal of the CCW/Fly Ash and

PFW.

Second Claim for Relief – Public and Private Nuisance (All Defendants)


211. The Defendants’ generation, transport, storage or disposal of CCW/Fly Ash and

PFW unreasonably interfered, and continue to interfere, with the safe use and enjoyment of

adjoining and nearby lands and thus disturb the peaceful, quiet and undisturbed use and

enjoyment of such property.

212. Defendants’ past and continuing conduct and activities adversely affects the use,

enjoyment and value of Plaintiffs’ property, and Putative Class Members’ property, constituting

a private and public nuisance.

213. Defendants’ actions have further caused nuisance as such actions have resulted in

Plaintiffs’ property and the Putative Class Members’ property being invaded with CCW/Fly Ash

and PFW which has been permitted to escape onto and into the land, surface water, groundwater,

atmosphere and ambient air of the Plaintiffs, Putative Class Members and Class Area.

Third Claim for Relief – Trespass (All Defendants)


215. Defendants’ transport, storage and disposal of CCW/Fly Ash and PFW has

trespassed onto, into and under the land of the Plaintiffs, Putative Class Members and Class Area

through the migration and accumulation of hazardous and toxic nonhazardous and deleterious

substances upon the surface, under the ground and through the air.


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216. Defendants’ trespass has resulted in physical damage to the property of the

Plaintiffs and Putative Class Members thereby causing injury to the right of possession and value

of such property.

217. Defendants’ invasion of the Plaintiffs’ and Putative Class Members’ property with

hazardous, toxic nonhazardous and deleterious substances without permission constitutes a

trespass.

Fourth Claim for Relief – Negligence (All Defendants)


219. Defendants owed a duty of care to Plaintiffs and Putative Class Members to

responsibly engage in the handling, transport, storage and disposal of CCW/Fly Ash and PFW

within the Class Area, including around Plaintiffs’ and Putative Class Members’ homes and

properties.

220. Defendants had a duty to take all measures reasonably necessary to inform and

protect Plaintiffs and Putative Class Members from the dangers which accompanied the

handling, transport, storage and disposal of the hazardous and harmful waste. This includes all

measures reasonably necessary to prevent the escape and migration of the hazardous and harmful

wastes.

221. 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. This includes, but is not limited to the following:

a. The CCW/Fly Ash and MMHF Defendants knew or reasonably should

have known that the generation, handling, storage, transport and dumping of CCW/Fly


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Ash were resulting in significant releases of hazardous, toxic nonhazardous and solid

wastes within the Class Area posing a risk of significant harm to Plaintiffs, Putative Class

Members and the Class Area environment.

b. The PFW and MMHF Defendants knew or reasonably should have known

that the handling, transport and dumping of PFW was resulting in significant releases of

hazardous, toxic nonhazardous and deleterious fluids and solids within the Class Area

posing a risk of significant harm to Plaintiffs, Putative Class Members and the Class Area

environment.


reasonable care should have known that the escape and migration of hazardous, toxic

nonhazardous and deleterious substances exposed Plaintiffs and Putative Class Members within

the Class Area, and their properties and environment to a risk of pollution, contamination and

harm.

223. Defendants, including their agents and/or employees, should have taken

reasonable precautions and measures to prevent or mitigate against the escape and migration of

hazardous, toxic nonhazardous and deleterious substances. As set forth in the Operative Facts

above, Defendants knowingly disposed of hazardous, toxic nonhazardous and solid wastes in an

open unlined pit adjacent to a populace which was in communication with surface and ground

waters. Defendants’ acts and omissions violate federal and state statutes and regulations and are

contrary to safe practices. Defendants’ acts and omissions are a breach of their duty of

reasonable care.


reasonable care should have known that harm caused to Plaintiffs and Putative Class Members,


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their properties and environment was a foreseeable and inevitable consequence of the escape and

migration of toxic, hazardous, harmful and deleterious substances due to Defendants’ wrongful

acts and omissions.

225. Defendants, including their agents and/or employees, acted unreasonably and

negligently in causing the escape and migration of toxic, hazardous, harmful and deleterious

substances and further failed to take reasonable measures and precautions necessary to avoid the

damages sustained by Plaintiffs and Putative Class Members to their person, properties and

environment.

226. Defendants’ acts and/or omissions mentioned herein were the direct and

proximate cause of the damages sustained by Plaintiffs, Putative Class Members and the Class

Area environment.

227. Some or all of the acts and/or omissions of Defendants were grossly, recklessly

and wantonly negligent, and were done with utter disregard for the consequences to Plaintiffs,

Putative Class Members and the Class Area environment, and therefore Plaintiffs are entitled to

an award of punitive damages.

Fifth Claim for Relief – Negligence Per Se (All Defendants)

228. Plaintiffs incorporate by reference paragraphs 1 through 227.

229. By their acts and omissions resulting in the pollution of the air, land and waters of

Plaintiffs, Putative Class Members within the Class Area, Defendants violated and continue to

violate the laws and statutes of Oklahoma including, but not limited to, those statutes and rules

and regulations set forth in FAC Paragraph Nos. 40-56, constituting negligence per se.


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Sixth Claim for Relief – Unjust Enrichment (All Defendants)


231. Defendants have been greatly enriched by their acts and omissions, including, but

not limited to failing to properly control and prevent the escape and migration of hazardous,

toxic nonhazardous and solid wastes during the transport and disposal at the MMHF Dump Site

and other open pit dump sites within the Class Area and by their failure to remove the hazardous,

toxic nonhazardous and solid wastes deposited on Plaintiffs’ and Putative Class Members’

property and the environment within the Class Area.

232. The CCW/Fly Ash, MMHF and PFW Defendants have engaged in the injurious

activities for profit and have knowingly and intentionally derived substantial pecuniary benefits

at the expense of Plaintiffs and Putative Class Members.

233. Defendants have benefited and continue to benefit from their wrongful conduct by

failing to take reasonable precautions to prevent and control the escape and migration of

hazardous and solid waste.

234. Defendants lack any legal justification for their past and present conduct in

allowing hazardous and solid waste to be deposited on Plaintiffs’ and Putative Class Members’

property and into and onto the air, land and waters of the Class Area.

235. Under the circumstances described herein, it would be inequitable for Defendants

to retain the benefits of their actions and omissions without paying the value thereof to Plaintiffs

and Putative Class Members.

236. No other remedy at law can adequately compensate Plaintiffs and Putative Class

Members for the damages occasioned by the knowing choices of Defendants to allow the escape

and migration of hazardous and solid waste in order to save the expense of properly disposing of


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the hazardous and solid waste thereby controlling and preventing the escape and migration of

their waste.

237. By reason of Defendants’ unjust conduct, Plaintiffs and Putative Class Members

are entitled to recover damages against Defendants, including, but not limited to, the

disgorgement of profits realized by Defendants’ unjust enrichment.

CLASS ACTION


239. Plaintiffs bring this action for themselves and on behalf of Putative Class

Members consisting of residents and/or property owners that are citizens of the State of

Oklahoma 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;

c. 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:


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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.

240. This civil action is an appropriate case to be brought and prosecuted as a class

action by Plaintiffs against Defendants pursuant to Okla. Sta. tit.12, §2023.

241. The Plaintiffs are members of the class that they seek to represent.

242. The class is so numerous that joinder of all members is impracticable. It is

believed that there are well in excess of four hundred fifty (450) residents in and around

Bokoshe, Oklahoma and the Class Area, whose person, property and environment have been

polluted or exposed to harmful, hazardous and toxic waste released as a result of Defendants’

activities.

243. There are questions of law and fact which are common to the class including, but

not limited to:

a. Whether Defendants’ activities caused and continue to cause an escape

and migration of harmful, hazardous and toxic waste;

b. Whether the escape and migration of harmful, hazardous and toxic waste

caused or is causing pollution, contamination and injury to the person and properties of

Plaintiffs and Putative Class Members and the air, land and waters of the Class Area;

c. Whether the exposure has caused Plaintiffs and Putative Class Members

and the Class Area to be at greater future risk of contamination and injury;

c. Whether Defendants’ activities constitute a nuisance;


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d. Whether Defendants are strictly liable for their actions or inactions;

e. Whether Defendants’ activities were negligently performed;

f. Whether Defendants’ activities and omissions constitute negligence per

se;

g. Whether Defendants were unjustly enriched as a result of their wrongful

acts and omissions; and

h. Whether Defendants’ activities caused a trespass upon the land of

Plaintiffs and Putative Class Members.

244. The claims of injury to person, property and environment set forth by Plaintiffs

are typical of the claims to be asserted by Putative Class Members. Further, the action arises

from the same common wrongs against Plaintiffs and Putative Class Members.

245. The Defendants have acted on grounds generally applicable to the class making

appropriate injunctive relief with respect to the class as a whole. Monitoring, as described

previously, is necessary because the severe and irreparable harm which the migration of harmful

and toxic substances creates upon the property of the Plaintiffs and all Putative Class Members.

246. Questions of law and fact common to the members of the class predominate over

any questions affecting only individual members because preliminary, overarching issues

common to all class members predominate over the individual issues.

247. A class action is superior to other available methods for the fair and efficient

adjudication of the controversy because class certification is a more efficient way to handle the

case, the class is manageable and class certification will avoid multiplicity of individual actions.

248. Plaintiffs will fairly and adequately represent and protect the interests of the class.


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249. Plaintiffs do not anticipate any difficulty in the management of this litigation as a

class action.

INJURIES AND DAMAGES


251. As a direct and proximate result of the unlawful, improper actions and/or

omissions by Defendants, Plaintiffs and Putative Class Members have suffered some or all of the

damages as set forth in FAC Paragraph Nos. 191-200 which include the following categories:

a. Loss or disruption of the use and enjoyment of their property;

b. Contamination of the soil;

c. Contamination of their surface water;

d. Contamination of their groundwater;

e. Contamination of their air and atmosphere;

f. Contamination of their community and environment;

g. Diminution in value of their property;

h. Personal injuries in the form of physical ailments consistent with

disclosures and warnings set forth on MSDS. These include, but are not limited to,

respiratory conditions, such as asthma and bronchial and nasal infections, and skin and

eye irritations, cancer and death;

i. Fear, shock, and mental distress; and

j. Plaintiffs and Putative Class Members should recover compensation for

Defendants’ unjust enrichment including disgorgement of profits, monitoring of the air,

land and water and medical monitoring.


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PRAYER FOR RELIEF

WHEREFORE, premises considered, the Plaintiffs, Bill Reece, Diane Reece, Herman

Tolbert, Bennett Tanksley, Susan Holmes and Charles Tackett, seek relief on behalf of

themselves and all Putative Class Members against the Defendants herein, jointly and severally,

as follows:

A. Compensatory damages for the injuries enumerated above in an amount in excess

of Seventy-Five Thousand Dollars ($75,000.00);

B. Punitive Damages in an amount in excess of Seventy-Five Thousand Dollars

($75,000.00);

C. Plaintiffs further pray for:

1. Certification as a class as requested;

2. Judgments for compensatory damages for all class members in an amount

commensurate with the damages as set forth above;

3. Judgments for punitive damages for all class members in an amount

commensurate with the damages as set forth above;

4. Injunctive relief in the form of: (1) a permanent prohibition against further

disposal of CCW/Fly Ash or PFW at the Disposal Facility; and (2) mandatory clean-up of

the contaminated air, land and waters of the Class Area;

5. Establishment of a monitoring fund to pay for the monitoring of air,

atmosphere, soil, surface and groundwater for the presence of harmful and toxic

substances;


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6. Establishment of a monitoring fund to pay for medical monitoring of the

named Plaintiffs and Putative Class Members for the presence or emergence of health

effects stemming from the Defendants’ use of harmful and toxic substances;

7. An award of costs of litigating the case;

8. An award of attorneys’ fees;

9. An award of pre-judgment interest; and

10. All other relief to which the Plaintiffs may be entitled.

Respectfully submitted, Brewster & De Angelis, P.L.L.C., By: __/s Montgomery L. Lair__________ Clark O. Brewster, OBA# 1114 Montgomery L. Lair, OBA# 12416 J. Randall Miller, OBA# 6214 2617 East 21st Tulsa, Oklahoma 74114 (918) 742-2021; Fax (918) 742-2197 and Harlan E. Hentges

Harlan Hentges, PLLC 1015G Waterwood Parkway Suite F1 Edmond Oklahoma, 73034 (405) 340-6554

Attorneys for Plaintiffs and Purported Class Representatives


Documents

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …ftpcontent.worldnow.com/griffin/NEWSon6/PDF/1311/bokoshe... · 2013-11-12 · 6:12-cv-00457-JH Document 315 Filed in ED/OK on 08/20/13