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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, )
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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
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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
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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
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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
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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
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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
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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
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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
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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
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, 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
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, 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
Dump Site from the following wells:
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
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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
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HIGHLAND WELLS COUNTY STATE
SANDERSON 2-19 2-19 LOGAN AR
SANDERSON 3-19 3-19 LOGAN AR
SANDERSON 4-19 4-19 LOGAN AR
SANDERSON 6-19 6-19 LOGAN AR
SANDERSON 12-19 12-19 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,
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, 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
engages in drilling, completion, production and operation of oil, gas and disposal wells located in
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:
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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
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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
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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
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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
Dump Site from the following wells:
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,
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, 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
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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.
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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,
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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,
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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
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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.
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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
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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.
Defendants violated this required waste management practice.
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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
management practice.
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.
Defendants violated this required waste management practice.
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.
Defendants violated this required waste management practice.
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.
Defendants violated this required waste management practice.
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
waste management practice.
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
approved by the Commission. Defendants violated this required waste management
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.
Defendants violated this required waste management practice.
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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
violated this required waste management practice.
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:
(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); and (20) Burial as approved by the Commission. Defendants
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violated this required waste management practice.
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
waste management practice.
z. Trash and debris - Options 15 & 20: (15) Disposal in accordance with
Oklahoma Department of Environmental Quality regulations; and (20) Burial as
approved by the Commission. Defendants violated this required waste management
practice.
aa. Refined petroleum product releases - Options 1, 3, 8, 13, 16, 17 & 22:
(1) Reclaim and/or recycle; (3) Landfills regulated by the Oklahoma Department of
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
management practice.
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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(2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central
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
(1) May cause eye, skin and respiratory irritation. (2) May cause headache, dizziness and other central
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
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) 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
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.
i. Bentonite
(1) Caution! – Acute Health Hazard. (2) May cause eye, skin and respiratory irritation. (3) May cause headache, dizziness and other central
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.
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
(1) May cause eye, skin and respiratory irritation. (2) May cause headache, dizziness and other central
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
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.
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)
210. Plaintiffs incorporate herein by reference paragraphs 1 through 209.
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)
214. Plaintiffs incorporate herein by reference paragraphs 1 through 211.
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)
218. Plaintiffs incorporate herein by reference paragraphs 1 through 217.
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.
222. Defendants, including their agents and/or employees, knew or in the exercise of
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.
224. Defendants, including their agents and/or employees, knew or in the exercise of
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)
230. Plaintiffs incorporate by reference paragraphs 1 through 229.
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
238. Plaintiffs incorporate by reference paragraphs 1 through 237.
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
250. Plaintiffs incorporate by reference paragraphs 1 through 249.
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
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