City of Tulsa v. Tyson Foods, Inc., No. 01-CV-0900-EA(C).

CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma
Writing for the CourtEagan
Citation258 F.Supp.2d 1263
PartiesTHE CITY OF TULSA, the Tulsa Metropolitan Utility Authority, Plaintiffs, v. 1. TYSON FOODS, INC., 2. Cobb-Vantress, Inc., 3. Peterson Farms, Inc., 4. Simmons Foods, Inc., 5. Cargill, Inc., 6. George's, Inc., 7. City of Decatur, Arkansas, Defendants.
Decision Date14 March 2003
Docket NumberNo. 01-CV-0900-EA(C).
258 F.Supp.2d 1263
THE CITY OF TULSA, the Tulsa Metropolitan Utility Authority, Plaintiffs,
v.
1. TYSON FOODS, INC., 2. Cobb-Vantress, Inc., 3. Peterson Farms, Inc., 4. Simmons Foods, Inc., 5. Cargill, Inc., 6. George's, Inc., 7. City of Decatur, Arkansas, Defendants.
No. 01-CV-0900-EA(C).
United States District Court, N.D. Oklahoma.
March 14, 2003.

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Kenneth N McKinney, Mark D Coldiron, Robert Leslie Roark, McKinney & Stringer PC, Oklahoma City, OK, Roger Brent Blackstock, Patrick Hoyt Kernan, Michael S Linscott, McKinney Stringer PC, Tulsa, OK, for Tulsa, City of, Tulsa Metropolitan Utility, Authority.

R Stratton Taylor, Darrell W Downs, Michael Sean Burrage, Mark H Ramsey, Clinton Derek Russell, Taylor Burrage Foster Mallett, Downs & Ramsey, Claremore, OK, Ruth A Wisener, Conner & Winters PLLC, Fayetteville, AR, Thomas A Mars, Robert W George, Kutak Rock LLP, Fayetteville, AR, Craig Sharkey, Tyson Foods Inc, Springdale, AR, for Tyson Foods, Inc., Cobb-Vantress, Inc.

Robert Joseph Joyce, A Scott McDaniel, Chris A Paul, Joyce Paul & McDaniel PC, Tulsa, OK, Sherry P Bartley, Byron Freeland, Lyn P Pruitt, Mitchell Williams Selig, Little Rock, AR, for Peterson Farms, Inc.

Daniel Richard Funk, Conner & Winters, Tulsa, OK, John R Elrod, Fayetteville, AR, Vicki Bronson, Conner & Winters PLLC, Fayetteville, AR, for Simmons Foods, Inc.

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John H Tucker, Colin H Tucker, Theresa Noble Hill, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, OK, for Cargill, Inc.

Richard L Carpenter, Jr, Philip James McGowan, Carpenter Mason & McGowan, Tulsa, OK, Gary V Weeks, James M Graves, Vince Chadick, Bassett Law Firm, Fayetteville, AR, for George's Inc.

Linda C Martin, Audra Katharine Hamilton, Doerner Saunders Daniel & Anderson, Tulsa, OK, Mark R Hayes, Little Rock, AR, for Decatur, City of, Arkansas.

R. Richard Love, III, Conner & Winters, Tulsa, OK, for Arkansas Poultry Federation.

ORDER

EAGAN, District Judge.


Plaintiffs City of Tulsa and Tulsa Metropolitan Utility Authority (collectively, referred to as "Tulsa") have filed suit against defendant City of Decatur, Arkansas ("Decatur"), a municipal corporation, and corporate defendants in the poultry industry (collectively referred to as "Poultry Defendants")—Tyson Foods, Inc. ("Tyson"), Cobb-Vantress, Inc. ("Cobb-Vantress"), Peterson Farms, Inc. ("Peterson"), Simmons Foods, Inc. ("Simmons"), George's, Inc. ("George's"), and Cargill, Inc.("Cargill"). Tulsa alleges that the acts and omissions of defendants have polluted Lakes Eucha and Spavinaw from which Tulsa draws its water supply. Specifically, excess phosphorus from Poultry Defendants' growers' land application of poultry litter and Peterson's and Decatur's "point source" discharge of wastewater have resulted in "eutrophication" of the lakes, i.e., high levels of algal production in the lakes, which affect water quality. Tulsa seeks cost recovery and contribution from Poultry Defendants under Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613(f); and compensatory and punitive damages for intentional nuisance and trespass claims against Poultry Defendants based on Oklahoma statutory and common law1 and against Peterson and the City of Decatur ("Decatur") under Arkansas common law; and unjust enrichment claims against Poultry Defendants under Oklahoma law and against Peterson and Decatur for the "point source" discharge pursuant to Arkansas law.

I. FACTUAL SUMMARY

The City of Tulsa is a municipal corporation and a political subdivision of the State of Oklahoma. The Tulsa Metropolitan Utility Authority ("TMUA") is an Oklahoma public trust established under Okla. Stat. tit. 60, § 176 et seq. for the purpose of operating the water supply system for the express benefit of the City of Tulsa, as beneficiary of the Trust.

The municipal water supply system at issue in this lawsuit includes Lake Spavinaw, Lake Eucha, Lake Yahola, and the City of Tulsa Mohawk Water Treatment Plant ("Mohawk"). These bodies of water are referred to collectively as the "Water Supply." Lakes Spavinaw and Eucha are reservoirs which were formed by plaintiffs by building dams on Spavinaw Creek, which receives water from the Eucha/Spavinaw watershed encompassing approximately 415 square miles (the "Watershed"). Tulsa constructed Lake Spavinaw

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in 1924. In 1938, the Oklahoma Water Resources Board ("OWRB") issued to the City of Tulsa a Permit, Grant, License and Certificate to use and apply 205 cubic second feet of the waters of Spavinaw Creek for its present and future needs. As water demands grew, Lake Yahola was constructed in 1948. Finally, in response to increasing water needs and requirements of Tulsa and other northeastern Oklahoma residents, Tulsa constructed Lake Eucha in 1952.2

Today the water collected in Lake Eucha is discharged directly into Lake Spavinaw where approximately 65-70 million gallons per day are piped directly to Lake Yahola. Water from Lake Yahola is processed at the TMUA-operated Mohawk Water Treatment Plant, from which potable water is furnished to consumers in Tulsa and in northeastern Oklahoma.

Tulsa alleges the Water Supply has been adversely affected by an increase of nutrients—specifically, phosphorus, which has in turn resulted in excessive algae growth. Tulsa contends that the excessive algae growth has caused taste and odor problems with respect to the plaintiffs' Water Supply, and that plaintiffs have incurred and will continue to incur substantial treatment costs and other damages in responding to the taste and odor problems.

The process by which lake water quality is affected through the increase of nutrients is commonly known as "eutrophication." Plaintiffs allege the practices of the Poultry Defendants and Decatur have resulted in the eutrophication of Lakes Eucha and Spavinaw.3 Specifically, plaintiffs allege that all Poultry Defendants have contributed phosphorus to Lakes Eucha and Spavinaw by virtue of the land application of poultry litter by contract growers located throughout the Watershed with whom the Poultry Defendants have contracted for the raising of poultry. Plaintiffs also allege that Peterson and Decatur have contributed phosphorus to Lakes Eucha and Spavinaw by discharging wastes from Peterson's processing plant through a publicly owned treatment work operated by Decatur.

Elemental phosphorus is a reactive solid which is highly combustible. Its fumes are extremely poisonous, and when it comes in contact with tissues elemental phosphorus will cause severe burns or intense inflammation. However, elemental phosphorus does not occur free in nature, but rather combines with other elements, most commonly oxygen, to form phosphate. Phosphate is found in all living cells, is safe and is vital to life processes. Poultry litter and waste generated by

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poultry processing operations contain phosphorus in the form of a phosphate compound.

Plaintiffs operate several wastewater treatment facilities in and around Tulsa, including sewer lagoons at Lake Eucha. The Eucha Sewer Lagoons were constructed in approximately 1972 to handle human wastewater generated from the campgrounds and cabins around Lake Eucha as well as from an area trailer park. As originally constructed, the Eucha Sewer Lagoons consisted of a discharging sewer lagoon, whereby human wastewater was temporarily held in a lagoon to allow biological activity to occur prior to the wastewater being discharged by plaintiffs directly into Lake Eucha. On several occasions from 1983 until at least 1991, plaintiffs siphoned or decanted sewage from the Eucha Sewer Lagoons into Lake Eucha. As a result of an investigation into plaintiffs' post-1983 discharges from the Eucha Sewer Lagoons into Lake Eucha, the Oklahoma State Department of Health ("OSDH") determined that the plaintiffs had violated Oklahoma law by discharging wastewater into Lake Eucha without a NPDES Permit. Plaintiffs concede the wastewater discharged from the Eucha Sewer Lagoons from 1972 through 1987 contained phosphates, but argue the amount was de minimus. In addition, people continue to use Lake Eucha and Lake Spavinaw for recreational activities such as fishing, boating, and camping.

Plaintiffs produce drinking water from the Water Supply that is in compliance with the Safe Drinking Water Act and does not present health risks to the residents of Tulsa. There is no current threat to plaintiffs' ability to produce safe drinking water from the Water Supply, although plaintiffs contend that the alleged pollution by Poultry Defendants and Decatur, if left unabated, will lead to more severe problems with the Water Supply, including problems of direct consequence to human health.

Poultry Defendants—Tyson, Cobb-Vantress, Simmons, Peterson, Cargill and George's—are in the business of processing and marketing poultry products to consumers. Generally, the Poultry Defendants contract with independent growers for the care and feeding of poultry ("poultry growers") which the Poultry Defendants subsequently process and market to consumers. Some of those poultry growers own and operate poultry farms which are located within the Watershed.

George's estimates its contract growers generated inside the Watershed approximately 1,900 tons of poultry litter in 1998, 1,600 tons in 1999, and 1,600 tons in 2002. In 2002, George's estimated that its growers generated 1,600 tons of litter inside the Watershed. As of September 1, 2002, Peterson admits that its contract growers and company farms have produced approximately 40,715,200 birds and an estimated 39,859 tons of litter in the Watershed. During 2001, Cargill admits that its contract growers produced approximately 810,000 turkeys...

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13 practice notes
  • City of Wichita, Ks v. Trustees of Apco Oil Corp., No. CIV.A.98-1360-MLB.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 31, 2003
    ...look only to see if there has been a release or threatened release for which a defendant is responsible); City of Tulsa v. Tyson Foods, 258 F.Supp.2d 1263, 1280 (N.D.Okla.2003) ("CERCLA does not impose a causation requirement as a predicate to liability when a defendant falls into one of th......
  • Carson Harbor Village, Ltd. v. Unocal Corporation, Case No. CV 96-3281 MMM (RCx) (C.D. Cal. 10/29/2003), Case No. CV 96-3281 MMM (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • October 29, 2003
    ...continued leaching and seepage from earlier spills, and leaking drums were all releases); City of Tulsa v. Tyson Foods, Inc., 258 F. Supp.2d 1263, 1287 (N.D. Okla. 2003) ("To effect CERCLA's goals of environmental protection and remediation, the definition of `release' has been broadly cons......
  • Carson Harbor Village, Ltd. v. Unocal Corp., No. CV 96-3281 MMM(RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • October 31, 2003
    ...continued leaching and seepage from earlier spills, and leaking drums were all releases); City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263, 1287 (N.D.Okla.2003) ("To effect CERCLA's goals of environmental protection and remediation, the definition of `release' has been broadly constru......
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...argument for the application of joint and several liability than does merely negligent conduct. 67. City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263, 1300 (N.D.Okla.2003) (quoting Restatement (Third) of Torts: Apportionment of Liability § 11 cmt. b (2000)). 68. Restatement (Second) of......
  • Request a trial to view additional results
12 cases
  • City of Wichita, Ks v. Trustees of Apco Oil Corp., No. CIV.A.98-1360-MLB.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 31, 2003
    ...look only to see if there has been a release or threatened release for which a defendant is responsible); City of Tulsa v. Tyson Foods, 258 F.Supp.2d 1263, 1280 (N.D.Okla.2003) ("CERCLA does not impose a causation requirement as a predicate to liability when a defendant falls into one of th......
  • Carson Harbor Village, Ltd. v. Unocal Corporation, Case No. CV 96-3281 MMM (RCx) (C.D. Cal. 10/29/2003), Case No. CV 96-3281 MMM (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • October 29, 2003
    ...continued leaching and seepage from earlier spills, and leaking drums were all releases); City of Tulsa v. Tyson Foods, Inc., 258 F. Supp.2d 1263, 1287 (N.D. Okla. 2003) ("To effect CERCLA's goals of environmental protection and remediation, the definition of `release' has been broadly cons......
  • Carson Harbor Village, Ltd. v. Unocal Corp., No. CV 96-3281 MMM(RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • October 31, 2003
    ...continued leaching and seepage from earlier spills, and leaking drums were all releases); City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263, 1287 (N.D.Okla.2003) ("To effect CERCLA's goals of environmental protection and remediation, the definition of `release' has been broadly constru......
  • In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 20, 2005
    ...argument for the application of joint and several liability than does merely negligent conduct. 67. City of Tulsa v. Tyson Foods, Inc., 258 F.Supp.2d 1263, 1300 (N.D.Okla.2003) (quoting Restatement (Third) of Torts: Apportionment of Liability § 11 cmt. b (2000)). 68. Restatement (Second) of......
  • Request a trial to view additional results

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