It now appears that the lawsuit against ExxonMobil Corp., which seeks millions in civil fines and cleanup costs, will be tried in June of next year. The suit, filed in an Arkansas federal court, is over a pipeline breach that dumped thousands of gallons of oil into a residential neighborhood. U.S. District Judge James M. Moody has issued a proposed final scheduling order cutting off discovery on March 7 and calling for the trial to occur during the week of June 16 in Little Rock, Ark. The suit includes pollution claims from federal and state authorities.
As you may recall from prior reports, Exxon’s 70-year-old Pegasus pipeline ruptured in March of this year in Mayflower, Ark., contaminating local waterways and forcing several residents to evacuate. The U.S. government and the state of Arkansas filed suit against Exxon two months later, contending that the company violated the Clean Water Act, the Arkansas Water and Air Pollution Control Act and other state and federal pollution statutes. The government alleged that during cleanup operations Exxon has stored contaminated soil, water and debris at a nearby facility without a permit, which would violate the Arkansas Hazardous Waste Management Act. It was alleged that Exxon has not removed the waste even though an order by the Arkansas Department of Environmental Quality requires the oil giant to do so.
Exxon filed a motion to dismiss the suit, arguing that the government allegations are not detailed enough to justify the claims. It claims the U.S. failed to demonstrate that Exxon discharged oil into “traditionally navigable waters of the United States” as defined in Section 311 (b)(3) of the Clean Water Act (CWA). “Under this section of the CWA — as opposed to several other sections that explicitly provide for broader jurisdiction over the broader ‘waters of the United States’ — federal jurisdiction is limited to discharges into waters that are navigable in fact, not all waters of the United States,” the motion says. “And nowhere has the United States alleged facts plausibly supporting the conclusion that Lake Conway is navigable in fact.”
Exxon also argues the state hazardous waste claim should be dismissed, claiming the complaint contains no facts to support its allegation that the company improperly stored, transported or disposed of the recovered oil from the spill. The oil giant could be hit with several million dollars in penalties, including $25,000 per violation per day under the state hazardous waste law, $10,000 per violation per day under the state pollution law and up to $4,300 per discharged barrel under the Clean Water Act. Federal and state authorities are also seeking a declaratory judgment allowing the state to go after Exxon for removal costs and damages under the federal Oil Pollution Act.
In addition to the government suit, Exxon is facing a putative class action from Arkansas residents living near the spill who are accusing the company of negligence in its operation, maintenance and monitoring of the Pegasus pipeline. Exxon also moved to dismiss that suit. At press time the trial judge had not ruled on the motions. The Pegasus is a 20-inch pipeline that originates in Patoka, Ill., and carries Canadian crude oil to the Texas Gulf Coast. Most observers believe the motions will be rejected by the court and that the case will proceed. The case is U.S. v. ExxonMobil Pipeline Co. in the U.S. District Court for the Eastern District of Arkansas.
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