In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 2353

DECLARATION of William T. Costley III in Support re: (981 in 1:00-cv-01898-SAS-DCF) MOTION for Summary Judgment.. Document filed by Atlantic Richfield Company, BP Products North America, Inc., BP West Coast LLC. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04968-SAS(Heartney, Matthew)

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In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation Doc. 2353 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation : Master File No. 1:00-1898 MDL No. 1358 (SAS) M21-88 The Honorable Shira A. Scheindlin This Document Relates To: Orange County Water District v. Unocal Corporation, et al., Case No. 04 Civ. 4968 (SAS). x DECLARATION OF WILLIAM T. COSTLEY III IN SUPPORT OF DEFENDANTS' FURTHER SUPPLEMENTAL MEMORANDUM RE SUMMARY JUDGMENT MOTION ON STATUTE OF LIMITATIONS Dockets.Justia.com DECLARATION OF WILLIAM T. COSTLEY III I, WILLIAM T. COSTLEY III, hereby declare: 1. I am a senior paralegal at the law firm of Arnold & Porter LLP, attorneys for defendants Atlantic Richfield Company, BP Products North America Inc. and BP West Coast Products LLC in this litigation. I have personal knowledge of the matters stated herein, and if called upon to testify, could and would competently do so. 2. I submitted two prior declarations in support of defendants' motion for summary judgment based on the statute of limitations in March 2006 and February 2007, respectively: Declaration of William T. Costley III In Support Of Defendants' Motion For Summary Judgment Based On The Statute Of Limitations, March 9, 2006 ("Costley 2006 Decl.") and Supplemental Declaration of William T. Costley III In Support Of Defendants' Motion For Summary Judgment Based On The Statute Of Limitations, February 15, 2007 ("Costley 2007 Dccl."). 3. To prepare this declaration, I analyzed documents and electronic data produced in this case by plaintiff Orange County Water District (the "District"), by defendants and, in some cases, by the Santa Ana Regional Water Quality Control Board or other government agencies. Using information from these sources, I prepared the tables attached to this declaration. These tables fairly and accurately summarize the information taken from the sources mentioned above. In preparing this declaration, I also utilized the accrual dates, and supporting information, set forth in the District's table attached to its March 13, 2009 letter included as Exhibit 2 to the 2009 Further Supplemental Declaration of James J. Finsten. 4. Each of the first five tables attached to this declaration (Exhibits 1 A-i E) compare the District's accrual dates for a subset of the stations included in its March 13, 2009 accrual table to additional information relevant to determining the accrual dates for the stations in question applying the District's own accrual criteria or, in the case of Exhibit 1D, the accrual date based on California law set forth in defendants' prior briefing. In each table, the focus plume stations referred to are identified by station name and plume number in the first two columns of the table. 5. Table 1A, attached as Exhibit 1A, addresses the District's accrual dates based on -- its first accrual criterion the first MTBE detection above 5 parts per billion ("ppb") in an offsite monitoring well at the station. Table 1 A compares the accrual date selected by the District (third column), and information regarding the offsite MTBE detection used to select this date (fourth and fiflh columns), with data reporting pre-May 6, 2000 MTBE detections above 5 pbb in offsite monitoring wells at the station. For each station, the Table lists the offsite monitoring wells in which MTBE detected at or above 5 ppb before May 6, 2000 (sixth column) and the highest MTBE detection in these wells prior to May 6, 2000 (seventh column). To compile this Table, I utilized the same source documents identified in the District's March 13, 2009 table, which identifies these documents by Bates range. Such documents consisted of Monitoring Reports submitted to the Regional Board or local oversight agency by the responsible party for the station in question, and contain monitoring data for MTBE detections in on-site and offsite monitoring wells at the station. 6. Table 1 B, attached as Exhibit 1 B, addresses certain of the District's accrual dates -- based on its second accrual criteria the first MTBE detection in a production well "associated" with a station by being included in the same "plume." At each station analyzed in Table 1B, offsite monitoring wells were installed and, before May 6, 2000, MTBE was detected in one or more such wells above 5 ppb. Thus, Table I B compares the accrual date selected by the District (third column), and information regarding the MTBE detection in an "associated" production well used to select this date (fourth column), with data reporting pre-May 6, 2000 MTBE detections above 5 pbb in offsite monitoring wells at the station. For each station, the Table lists the offsite monitoring wells in which MTBE detected at or above 5 ppb before May 6, 2000 (sixth column) and the highest MTBE detection in these wells prior to May 6, 2000 (seventh column). To compile this Table, I utilized Monitoring Reports submitted to the Regional Board or local oversight agencies that have been produced in this litigation (identified by Bates number in the eighth column). 7. Table 1C, attached as Exhibit 1C, addresses other of the District's accrual dates based on its second accrual criteria. The accrual dates analyzed in Table 1 C are for stations in the District's Plumes 3 and 7, and are based on alleged "first" MTBE detections in well OCWD Ml0 (Plume 3) and City of Anaheim well A-29 (Plume 7) after May 6, 2000. Thus, this Table compares the accrual date selected by the District (third column), and information regarding the MTBE detection in an "associated" production well used to select this date (fourth column), with other data from the District's own testing showing MTBE detections in the wells in question before May 6, 2000. To compile this Table, I utilized the District's Second Supplemental Responses to Defendants' Preliminary Interrogatories re Standing. 8. Table lD, attached as Exhibit ID, addresses the District's accrual dates for stations not included in Tables IA, lB or IC. This Table compares the accrual date selected by the District (third column), and information regarding the MTBE detection in either offsite monitoring wells or production wells used to select this date (fourth, fifth and sixth columns), with data reporting MTBE detection in on-site monitoring wells at the station in question (seventh, eighth and ninth columns). To compile this Table, I utilized Monitoring Reports submitted to the Regional Board or local oversight agencies that have been produced in this 4 litigation, documents produced by the District or defendants in this litigation, the District's Second Supplemental Responses to Defendants' Preliminary Interrogatories re Standing, and the Santa Ana Regional Water Quality Control Board Database of MTBE Detections (as identified in each case in the tenth column). The data reporting on-site MTBE detections at the stations listed in this Table was previously submitted in my prior declarations. 9. Table 1 E, attached as Exhibit 1 E, addresses the stations that are designated as "not ripe" in the District's March 13, 2009 accrual table. For each such station, the Table lists the offsite monitoring wells at the station in which MTBE was detected above 5 ppb before May 6, 2000 (fourth column) and the highest MTBE detection in these wells prior to May 6, 2000 (fifth column). To compile this Table, I utilized Monitoring Reports submitted to the Regional Board or local oversight agencies that have been produced in this litigation (identified by Bates number in the sixth column). 10. Table 2, attached as Exhibit 2, contains a more detailed analysis of the District's accrual dates based on its first criterion at three exemplar stations. This Table compares the District's basis for accrual, including the well, detection level, and date of detection, with detections of MTBE above 5 ppb in off-site monitoring wells before May 6, 2000, using these same factors. To compile this Table, I utilized the Monitoring Reports submitted to the Regional Board or local oversight agencies used in preparing Table 1A. 11. Table 3, attached as Exhibit 3, summarizes the accrual information contained in the five tables making up Exhibit 1, and indicates for each focus plume station (1) whether this station is time-barred using the District's own accrual criteria or (2) whether the District's claims at this station have not yet accrued applying its accrual criteria. Because this Table is limited to applying the District's accrual criteria, it does not encompass stations analyzed in Table 1D, which presents accrual information applying the California law accrual standard set forth in defendants' prior briefing. In composing Table 3, I consulted the same information addressed in paragraphs 4-9 of this Declaration. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was executed on May 4, 2009 at Los Angeles, California. William T. Costley III 6 A. Exhibit 1A OCWD Accrual Dates Based On First Criterion Compared To Data Showing Off-Site Monitoring Well Detections Before May 6, 2000 Gff$ite Well MTBE Highest MTBE Concentration in Qff Site Well pre5I6lOO All Off$ite Wells wl pre4I6IOO MTBE DetectIons above S ppb (ppb) 18 (MW-8) 22600 (W-17) 71000 (MW-5A) 200,000 (BH-5) 600,000 (E-15) 8,000 (BW-16) 10,000 (B-7) 2,200 (MW-3) 34,000 (MW-8) 3,460 (MW-14) 4,800 (B-7) 910 (MW-17) 1,500 (MW-i3) 17 ( 8- 14) 86 (MW-b) Plume No MW-8 5.6 5.1 18.5 4.9 7.6 43 36 170 18 41 (TBA) Not Found* Used or Concentration OCWD on Acnia1 Date fI3IO9 OCWD Accrual Date Atcrual Date (ppb) Source Station Name Exxon #7-4283 G&M Ol#4 Mobil #18-HDR Mobil #l8-JMY ARCO#1912 Thrifty #008 Unocal #7470 ARCO #3085 Beacon Bay Car Wash (SA) W-ii, W-i6, W-17, W-18, w-l9, w20, W-21, W-22 15 19 14 23.5 Not Found** 54 P1 P1 P2 P2 P3 P4 P4 P8 P8 P8 P9 P9 PlO PlO Di D4 D9 MW-5A, MW-5B, MW-6A, MW-7, Mw-gA, Mw-gB, MW-bA, MW-lOB BH-5, MW-14, MW-17, MW-19A, MW-l98 B-5, E-7, E-15 BW-9, BW-iO, BW-13, BW-14, BW-15, BW-i6 B-7, B-il, B-12 MW-3, MW-4 MW-7, MW-8 MW-b, MW-il, MW-i4, MW-16 B-7, B-8, B-il, B-2l MW-4, MW-i4, MW-17 MW-13, MW-14 B-i4, B-i5, B-i6 Pre-May 6, 2000 Accrual Date From OCWD MW-8, MW-b Pre-May 6, 2000 Accrual Date From OCWD Chevron #9-1 921 Shell #6502 Unocal #5123 Four Star Ventures Shell #8990 Texaco #3311 ARCO #6036 Chevron #9-5568 05/05/05 09/12/01 09/01/04 11/07/01 03/14/07 04/08/03 03/16/04 10/02/01 01/i 6/03 01/02/07 09/06/00 05/06/03 10/31/07 03/07/03 01/27/99 08/i 6/01 10/13/97 Mw-i 3i W-25d MW-16B MW-iS Mw-8 Bw-28 MW-20 Mw-S MW-9 MW-13 B-46 MW-l5 S-lB B-22 MW-6S VA-2D MW-b OCWD-MTBE-001 -257753 OCWD-MTBE-001-255790 OCHCA-MTBE-0i3887 OCWD-MTBE-001-182388 OCHCA-MTBE-04387i SARWQCB-MTBE-020055 SARWQCB-MTBE-0280i9 SARWQCB-MTBE-000023 SARWQCB-MTBE-026407 SARWQCB-MTBE-004568 OCWD-MTBE-OOl -183180 OCWD-MTBE-OOi-184473 OCHCA-MTBE-07973i SARWQCB-MTBE-0l6784 OCHCA-MTBE-088873 OCWD-MTBE-OOl-267076 OCWD-MTBE-OOi-266l23 *While no MTBE was found on 9/6/00 in well B-46, MTBE was detected at 10 ppb in well 8-46 on 6/6/00. **While no MTBE was found on 8/i 6/01 in well VA-2D, MTBE was detected at 37 ppb in well VA-2D on 5/31/05. 543916 ii.xiSx Exhibit lB Exhibit lB Based On Second Criterion Compared To Data Showing Off-Site Monitoring Well Detections Before May 6, 2000 OCWD Accrual Dates ` Plume No, NB-TAMD NB-TAMD NB-TAMD MCWD-5 OCWDM10* SA-i6 NB-DOLD HB-i3 HB-13 IRWD-i6 0.13 0,04 Non-Detect Non-Detect 0,03 08/03/05 08/03/05 08/03/05 08/02/05 05/07/02 08/09/05 08/02/05 09/23/01 01/18/05 11/17/08 0.12 012 0.12 0.08 3,0** MW-15, MW-17, BC-i MW-9, MW-iD MW-9, MW-iD, MW-13, MW-i4, MW-iS B-8, B-9, B-b W-26, W-27 W-8S MW-9, MW-li, MW-Kb, MW-K2, MW-i02, MW-i03 MW-9, MW-12 MW-5, MW-8, MW-9, MW-il MW-5, MW-6, MW-7, MW-b4 48 (MW-17) 2,610 (MW-b) 990 (MW-14) 130,000 (B-9) 110 (W-27) 20 (W-8S) 300 (MK-Ki) 77.6 (MW-9) 90 (MW-9) 130,000 (MW6, MW14) Station Name Production Well MTBE Concentration Used For 3113109 OCWD OCWD Accrual on Accrual Date Accrual Date Date (ppb) All Dff$lte Wells wI pre4I6IOO MTBE Detections above $ ppl Highest MTBE Concentration In OffSite Well pre4ISIOO (ppb) Source OCWD-MTBE-001-261571 OCWD-MTBE-001-254912 OCWD-MTBE-001-260049 OCWD-MTBE-001-187837 OCWD-MTBE-001 -265078 OCWD-MTBE-OOi-253290 OCWD-MTBE-OOi-263952 OCWD-MTBE-OOi-188636 OCWD-MTBE-OOi-i84i25 OCWD-MTBE-001-b389i8 P1 P1 P1 P2 p3 P4 P6 P9 P9 D5 ARCO#1887 Texaco #8520/121608 Unocal#5376 ARCO#6131 ARCO #1905 Thrifty #376 Thrifty #085 Thrifty #368 Westminster Shell Mobil #18-668 *OCwD,.Mio does not produce water for consumption, but is treated as a production well under the District's accrual theory. **OCWDs WRMS Database 543916 11,XLSX Exhibit 1C Exhibit 1C OCWD Accrual Dates Based On Second Criterion Compared to Dates Showing Dectection Before May 6, 2000 in Production* Wells Designated by OCWD Plume No, Station Name MTBE Proc1ucton Well Used For Concentration on Mcrual Date OCWD 3fl"iIU9 OCWD (ppb) Accrua' Date Accrual Date e ftt$I $niWn Mle bteo P3 05/07/02 9/12/95 ARCO #1 905 OCWDM10* Yes 3.0** 1.00 P1's Second Supp. Responses to Defs.' Preliminary Interrogatories re Standing Ex. 1A, "OCWD Owned Wells" p.5. P3 Beacon Bay Car Wash (FV) 05/07/02 OCWDM10* Yes 9/12/95 1.00 3.0** Pl.'s Second Supp. Responses to Defs.' Preliminary lnterrogatories re Standing Ex. 1A, "OCWD Owned Wells" p.5. P3 Thrifty #383 05/07/02 OCWDM10* Yes 9/12/95 3.0** 1.00 P1's Second Supp. Responses to Defs.' Preliminary Interrogatories re Standing Ex. 1A, "OCWD Owned Wells" p.5. P1's Second Supp. Responses to Defs.' Preliminary Interrogatories re Standing Ex. 1A, "Water Supply Wells" p.1. 3 .7 0 P7 ARCO #1994 12/14/05 A-29 0.09'" Yes 10/12/95 P7 Unocal #5869 12/14/05 A-29 0.09*** Yes 10/12/95 3.70 Pl.'s Second Supp. Responses to Defs.' Preliminary Interrogatories re Standing Ex. 1A, "Water Supply Wells" p.1. "OCWDM10 does not produce water for consumption, but is treated as a production well under the District's accrual theory. **pls Second Supp. Responses to Defs. Preliminary Interrogatories re Standing Ex. 1A does not report any MTBE detection in OCWD-M10 on May 7, 2002; OCWD's WRMS Database reports a detection of 3.0 ppb on this date. ***pls Second Supp. Responses to Defs.' Preliminary Interrogatories re Standing Ex. 1A, "Friedman Bruya" p.1 shows MTBE detected at 0.09 ppb on 10/4/05, not 12/14/05. 543916_11.XLSX Exhibit 1D Stations Not Listed In Exhibits 1A, 18 or 1C With Accrual Dates OCWD Accrual Dates Compared To Pre-May 6, 2000 On-Site MTBE Detections MI e6* PlumeNe. MW-6S NB-TAMD NB-TAMD NB-TAMD MW-22 VA-4S NB-DOLD MW-15 MW-14 HB-13 HB-13 MW-i 6 HB-13 MW-7D Yes Yes Yes Station Name 04/02/03 08/03/05 08/03/05 08/03/05 07/19/02 8/12/98 3/ 27/ 00 Yes Yes Yes 11/ 7/ 99 34000 312 41000 Off-Site Well Production Well Concentration 3113109 OCWD Used Por OCWI) Used For OCWD on Accrua& Date Accrual Date Accrual Date Acrua1 Date (ppb pat$1e 04/03/01 14.4 0.12 0,12 0.12 840 1,300 Not Found* Yes Yes Yes Yes Yes Yes Yes Yes 5/ 11/ 98 6/ 6/ 96 5/ 11/ 98 630 101 Non-Detect Non-Detect 1.5 Non-Detect 4 11/ 20/ 96 4/24/97 9/2/98 7/5/96 9/9/98 2/ 7/ 00 6/ 13/ 97 3/ 20/ 00 2,000 1,900,000 4 3 ,0 0 0 26,000 1,015,000 100,000 65,000 7 6 ,0 0 0 480,000 510 19,000 P1 P1 P1 P1 P5 P6 P6 P8 P8 P9 P9 P9 P9 Dl 08/04/00 04/11/03 09/19/02 07/02)01 08/09/01 11/03/03 01/18/05 06/06/03 Mobil #18-G68 Shell #204359403 Texaco #121681 Unocal #5399 Unocal#5356 ARCO#6116 Exxon #3738 G&M Dii #24 Mobil #18-HEP Chevron #9-5401 Huntington Beach ARCO Unocal #5226 USA Gasoline #141 Unocal#5792 OCWD-MTBE-001-258933 OCWD-MTBE-001-259385 See Finsten 2008 Decl., Ex. I See Sartoris 2006 Decl., Ex, 15 See Sartoris 2006 Decl., Ex. 15 See Sartoris 2006 Decl,, Ex. 15 See Sartoris 2006 DecI,, Ex. 15 See Sartoris 2006 DecI,, Ex. 15 See Finsten 2008 Decl., Ex. 1 See Finsten 2008 Decl,, Ex. 1 See Finsten 2008 DecI., Ex. 1 See Sartoris 2006 Deci., Ex. 15 OCWD-MTBE-001-191559 DCWD-MTBE-00i-26868i *Whiie no MTBE was found on 8/4/00 in well NB-DOLD, MTBE was detected at 0.04 ppb in well NB-DOLD on 8/2)05. 543916 11.xLSx Exhibit 1E Exhibit 1E Stations Designated As "Not Ripe:" Off-Site Monitoring Well Dectections Before May 6, 2000 Plume No Not Ripe Not Ripe Not Ripe Not Ripe Not Ripe B-13 RMC-6, RMC-7 MW-6, MW-7 MW-5, MW-7, MW-8 MW-6 1,090 (B-13) 80,000 (RMC-7) 200 (MW-6) 110,000 (MW-5) 50 (MW-6) Station Name 3113109 OCWD AcruaI Date All Oft-Site WeBs wI pre-816100 MtBE Detections abve 5 ppb Highest MTBE Concentration In Off-Site Well pre. 516100 (ppb) Source Dl Dl D2 D3 D10 Shell #4001/Shell #135218 Unocal #4727 ARCO #6160 Mobil #18-EYE ARCO #3094 OCWD-MTBE-001-267373 OCWD-MTBE-001-268624 OCWD-MTBE-001-267251 OCWD-MTBE-001-266715 OCWD-MTBE-001-268101 543916_11.XLSX Exhibit 2 Exhibit 2 Illustrative Examples Of OCWD Accrual Dates Based On First Criterion Compared To Data Showing Off-Site Monitoring Well Detections Before May 6, 2000 Station OCWD's Basis For Claimed Accmal Pre-May 6, 2000 Detections in Off-site Monitoring Wells Well BH5 MTBE first detected above 5 ppb on 5/3/1994 (13 ppb); thereafter 18 more MTBE detections above 5 ppb before 5/6/2000; highest was 200,000 ppb. Well MW14 MTBE first detected above 5 ppb on 9/16/98 (14 ppb); thereafter 4 more MTBE detections above 5 ppb before 5/6/2000; highest was 29 ppb. Well MW17 MTBE first detected above 5 ppb on 6/23/98 (1,000 ppb); thereafter 6 more MTBE detections above 5 ppb before 5/6/2000; highest was 1,000 ppb. Well MW19 (A&B) MTBE first detected above 5 ppb on 6/23/98 (15 ppb); thereafter four more MTBE detections above 5 ppb before 5/6/2000; highest was 11 ppb. Mobil I 8-JMY (Plume 2) Well MW1 5 MTBE detected on 11/7/2001 at 4.9 ppb. No other MTBE detection in this well, Beacon Bay Car Wash (Plume 8) Well MW9 MTBE detected on 1/16/2003 at 18 ppb. No other MTBE detection in this well. OCWD originally designated 6/25/1996 as the accrual date for this station (see 2/6/2009 Letter from M. Axline to Hon. Shira Scheindlin), which would makes its claims time-barred. Well MW7 MTBE first detected above 5 ppb on 9/26/1996 (23 ppb); thereafter ten more MTBE detections above 5 ppb before 5/6/2000; highest was 23 ppb. Well MW8 MTBE first detected above 5 ppb on 6/25/1996 (7,200 ppb); thereafter 12 LA; 5438593 -- 1 -- Station OCWD's Basis For Claimed Accrwil Ike-May 6, 2(XO Detections in Off-site Monitoring Wells more MTBE detections above 5 ppb before 5/6/2000; highest was 34,000 ppb. Shell 6502 (Plume 9) Well B46 No MTBE on OCWD's accrual date of 9/6/2000. MTBE was detected at 10 ppb on 6/6/2000, followed by either no detection or a detection well below 5 ppb over the next five years. Starting on 11/6/2005, MTBE detection just above 5ppb (highest 5.8 ppb) on three often monitoring events through 3/25/2008. Well B7 MTBE first detected above 5 ppb on 12/13/1996 (1,300 ppb); thereafter six more detections above 5 ppb before 5/6/2000; highest was 4,800 ppb. Well B8 MTBE first detected above 5 ppb on 12/13/1996 (89 ppb); thereafter, nine more MTBE detections above 5 ppb before 5/6/200; highest was 230 ppb. Well Bli MTBE first detected above 5 ppb on 12/13/1996 (100 ppb); thereafter, five more MTBE detections above 5 ppb before 5/6/200; highest was 200 ppb. Well B21 MTBE first detected above 5 pbb on 3/27/1996 (60 ppb); thereafter, 14 more MTBE detections above 5 ppb before 5/6/2000; highest was 450 ppb. LA: 5438593 -2- Exhibit 3 I xx x xx 4- a) 0 0 44-. -J I V E a) C 0 4I 4- aJ 4- 0 U x >( 4- 0 = 0 .!! .E .2 4- .c 0 U . 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