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With Unusual Speed Officials Slap Exxon with Oil Spill Lawsuit. Why?

The suit that state and federal officials recently filed could signal they are especially upset with Exxon's conduct. It could also be politics as usual.

Jun 19, 2013
Stream near the site of ExxonMobil's Arkansas spill in the town of Mayflower.

The lawsuit that state and federal officials in Arkansas filed last week against ExxonMobil is unusual, pipeline experts say, because government agencies usually wait much longer—sometimes even years—before filing lawsuits against companies involved in pipeline accidents.

Exxon's Pegasus pipeline ruptured on March 29, spilling at least 210,000 gallons of heavy Canadian crude oil into Mayflower, Ark. about 25 miles northwest of Little Rock.

"And this [the lawsuit] comes along three months after?" said Carl Weimer, executive director of the Pipeline Safety Trust, a nonprofit watchdog organization based in Bellingham, Wash. "There's something at work here we simply don't know about."

Philadelphia attorney Andy Levine, a former senior assistant regional counsel for the U.S. Environmental Protection Agency, described the legal strategy being pursued in Arkansas as "a head scratcher."

"It makes you wonder what was happening behind the scenes that caused this to ramp up so quickly to full-blown litigation," Levine said.

Exxon has publicly apologized for the spill and has offered to buy the 22 houses that were evacuated and still remain empty. Much of the cleanup now focuses on a cove of Lake Conway, a popular recreation area renowned for its fishing and scenic setting. In an April 26 accident report, Exxon put the cost of the spill at $16.4 million. 

The 65-year-old Pegasus line runs 850 miles across four states from Patoka, Ill. to Nederland, Texas. It has been closed since the spill and Exxon hasn't revealed when it might be re-opened.

The lawsuit filed against Exxon was filed by Arkansas Attorney General Dustin McDaniel and U.S. Attorney Chris Thyer on behalf of the EPA. It claims that the oil that spilled into the water around Mayflower created pollution levels above acceptable human health and aquatic life criteria and that Exxon has improperly stored petroleum-contaminated waste collected during the cleanup near the spill site.

EPA spokeswoman Jennah Durant declined to discuss why the lawsuit was filed so quickly. She referred that question to the Arkansas Attorney General's office.

Aaron Sadler, a spokesman for the Attorney General’s office, said the timing was right for litigation.

"ExxonMobil's liability is clear," he said. "We filed because we were ready to file."

Sadler also said that if the office didn't file quickly it risked losing its standing to sue, because civil litigation already has been filed by homeowners alleging violations of the federal Clean Water Act. But Sadler later downplayed that point, saying it wasn't the primary motivation.

The lawsuit outlines the potential civil penalties and damages Exxon could face for violating the Clean Water Act, the Arkansas Hazardous Waste Management Act, and the Arkansas Water and Air Pollution Control Act. Federal civil penalties could range from $1,100 to $4,300 for each barrel of oil spilled, depending on whether Exxon is found guilty of negligence or willful misconduct. An estimated 5,000 barrels spilled from the pipeline.

Exxon spokesman David Eglinton said the company does not comment on pending litigation.

"It is important to note that EMPCo (ExxonMobil Pipeline Company) has been operating transparently under the direction of the Unified Command, which includes the U.S. EPA, Arkansas Department of Environmental Quality and Faulkner County, along with the Arkansas Department of Health," Eglinton said in an email. "This cooperation has included emergency response and cleanup operations, monitoring air quality levels and developing waste disposal plans."

Levine, the former EPA attorney, said a number of interim steps are usually taken before a lawsuit of this nature is filed.

The first step is asking for voluntary compliance, Levine said. The company and the regulators agree on what remediation is needed and what additional safeguards need to be put into place.

"Then there would be a period of time—longer than three months—where the company would act and regulators would monitor the progress," he said.

If a more formal plan is needed, Levine said regulators usually devise a consent order spelling out what the company needs to do. It is signed by both the regulator and company officials and can be enforced in court, if necessary.

A more aggressive form of compulsory compliance would be a consent decree, Levine said.  Here a judgment confirms a voluntary agreement between parties to a lawsuit in return for withdrawal of the case.

Typically, consent decrees are orchestrated ahead of the litigation, Levine said, so by the time the case gets to court both parties have agreed to the terms. 

It's usually only after these interim steps fail that regulators resort to litigation, he said.

"Environmental regulators have a wide variety of tools to gain compliance," Levine said. "In this instance regulators have chosen the most aggressive course of action from the beginning."

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