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

Filing 3735

RULE 56.1 STATEMENT. Document filed by Exxon Mobil Corp.. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:08-cv-06306-SAS(Gerson, Lisa)

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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 1358 (SAS) M21-88 This document relates to: City of Merced Redevelopment Agency, et al. v. Exxon Mobil Corporation, et al., 1:08-cv-06306 DEFENDANTS’ REPLY RULE 56.1 STATEMENT IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT RE NUISANCE & TRESPASS SMRH:408450013.1 Defendants Exxon Mobil Corporation, Chevron U.S.A. Inc., Shell Oil Company, Equilon Enterprises LLC, Tesoro Corporation, and Tesoro Refining and Marketing Company (collectively, “Defendants”) submit the following Local Rule 56.1 Reply Statement in support of their Motion for Partial Summary Judgment re Nuisance and Trespass: DEFENDANTS’ FACTS Merced RDA’s Response Defendants’ Reply Undisputed Material Facts And Supporting Evidence 1. Virginia and Arvel The RDA admits that the Plaintiff’s statement does Shackelford owned and Shackelfords operated the station not deny the fact and it operated the gasoline service as a branded Mobil station selling should therefore be station at 1415 R Street from Mobil gasoline from 1978 to 1984. deemed admitted. 1984-1994. (Roy Decl., Ex. 1 (Sawyer Decl., Exh. 3, A. (V. Shackelford Depo), Shackelford Depo., pp. 7:12-22; p. 103:10-16; Ex. 7 (1/6/12 12:6-19; 13:24-14:12.) The RDA Merced Trial Transcript also admits that the Shackelfords Stipulation), p. 6794:23– owned and operated the R Street 6795:3.) Exxon Station at 1415 R Street, Plaintiff’s additional fact statements are immaterial and irrelevant. but denies that this fact is admissible or relevant. 2. During that time, the Denied. Mr. Shackelford testified Plaintiff’s denial is Shackelfords sought out their that after he purchased the station illusory. The cited old friends at Curtesy Oil to from Mobil, the Shackelfords evidence supports the fact. supply gasoline to the station entered into an agreement to buy and Curtesy Oil, in turn, Exxon gasoline from Courtesy Oil. branded the station “Exxon.” (Sawyer Decl., Exh. 3, A. (Roy Decl., Ex. 2 (A. Shackelford Depo. (5/18/09) at Shackelford Depo), p. 16:21– 17:3-10.) All of the signs and 17:2, 17:8-10, 17:22–18:21.) branding materials then changed to SMRH:408450013.1 -1- Plaintiff’s additional fact statements are immaterial and irrelevant. Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply Exxon. (Id. at 17:11-16.) Once the station changed to Exxon branding, the Shackelfords sold only Exxon gasoline. (Id. at 17:310, 17:22-18:10, 18:22-24.) The testimony cited by defendants does not establish that Courtesy Oil branded the station as an Exxon station. 3. The Shackelfords bought The RDA admits that Courtesy Oil Plaintiff’s statement does their gasoline from Curtesy delivered gasoline to the station. not deny the fact and it Oil, not directly from any The Shackelfords bought gasoline should therefore be Defendant. (Roy Decl., Ex. 7 from Courtesy Oil in order to deemed admitted. (1/6/12 Merced Trial obtain Exxon gasoline. (See Stipulation), p. 6794:23– Response to Paragraph 2 supra.) Plaintiff’s additional fact statements are immaterial 6795:3; Ex. 1 (V. and irrelevant, and Shackelford), pp. 37:9-15.) misrepresent the evidence they cite. The Shackelfords did not buy gasoline from Curtesy Oil “in order to obtain gasoline from Exxon”. Rather, the testimony indicated that they went to Curtesy Oil, which they knew for decades, and Curtesy Oil happened to be selling Exxon-branded SMRH:408450013.1 -2- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply gasoline. 4. There was no contract or The RDA admits that there was no Plaintiff’s statement does agreement between the contract, but denies that this fact is not deny the fact and it Shackelfords and Exxon. Roy admissible or relevant in light of should therefore be Decl., Ex. 1 (V. Shackelford, the fact that the Shackelfords deemed admitted. pp. 104:5-7). entered into an agreement to Plaintiff has already exclusively buy Exxon gasoline admitted that the and branded the station as an Shackelford’s agreement Exxon station. See Response to was with Curtesy Oil, not Paragraph 2 supra. Exxon, and Mr. Shackelford was not aware of signing any agreement or having an agreement requiring him to sell Exxon-branded gasoline. (Roy Decl., Ex. 2 (A. Shackelford Depo), p. 18:6, 18:18-21.) 5. In 1994, the Shackelfords The RDA admits that the Plaintiff’s statement does sold the station to JP Shackelfords sold the station to not deny the fact and it Randhawa. (Roy Decl., Ex. 1 J.P. Randhawa in 1994, but denies should therefore be (V. Shackelford Depo.), that this fact is admissible or deemed admitted. p. 74:6-7, 74:13, 75:1-13.) relevant. Plaintiff provides no legal authority or explanation of why the cited evidence is inadmissible. As a result, the objection should be SMRH:408450013.1 -3- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply disregarded. 6. Mr. Randhawa operated The RDA admits that Mr. Plaintiff’s statement does the station under the Exxon Randhawa purchased gasoline not deny the fact and it brand through Curtesy Oil from Curtesy Oil. Mr. Randhawa should therefore be until 1998. (Roy Decl., Ex. 5 purchased gasoline from Curtesy deemed admitted. (Merced Trial Transcript so that he could obtain Exxon 10/28/2011 PM), pp. branded gasoline and so that he 1198:11–1200:8.) could display the Exxon logo on “dispensers, price sign, freeway sign,” and that he was “authorized through Curtesy Oil by Exxon” to Plaintiff’s additional fact statements are immaterial and irrelevant, and they mischaracterize the cited evidence. display the logo. (Shannon Decl., However, the RDA’s cited Exh. 1, Randhawa Depo. (8/26/09) evidence (Shannon Decl., at 72:1-16.) Exh. 1, Randhawa Depo. (8/26/09) at 72:1-16 [CM/ECF Doc. No. 169, p. 12 of 98]) was stricken from the record. Therefore, Plaintiff’s additional statements are unsupported by the evidence and should be disregarded. 7. Mr. Randhawa closed his The RDA admits that Mr. Plaintiff’s statement does station in 1998 and reopened Randhawa changed the brand not deny the fact and it it in 1999 as a Texaco- name on his station from Exxon to should therefore be branded station that purchased Texaco in or around 1999, and that deemed admitted. gasoline from a distributor, once the station became a Texaco, SMRH:408450013.1 -4- Undisputed Material Facts And Supporting Evidence Dickey Petroleum. (Roy Merced RDA’s Response Defendants’ Reply the gasoline supplier became Plaintiff’s additional fact Decl., Ex. 5 (Merced Trial Dickey Petroleum. (Shannon statements are immaterial Transcript 10/28/11 PM), p. Decl., Exh. 1, Randhawa Depo. and irrelevant and 1255:4-19); Ex. 3 (Randhawa (8/26/09) at 13:6- 10.) misrepresent the cited Depo.) pp. 13:6-10, 109:22– testimony, which 110:04; Ex. 4 (Dickey Depo), identifies the date he p. 18:2-20.) ceased operating under the Exxon brand as November or December 1998. (Shannon Decl., Exh. 1, Randhawa Depo. (8/26/09) at 13:3-5.) 8. Mr. Randhawa has owned The RDA admits that Mr. Plaintiff’s statement does and operated the station since Randhawa owned and operated the not deny the fact and it 1994. (Roy Decl., Ex. 3 R Street Exxon/Texaco Station at should therefore be (Randhawa Depo.) pp. 88:14– 1415 R Street, but denies that this deemed admitted. 91:18.) fact is admissible or relevant. Plaintiff provides no legal authority or explanation of why the cited evidence is inadmissible. As a result, the objection should be disregarded. 9. Mr. Randhawa never had a The RDA admits that there was no Plaintiff’s statement does contractual relationship or any contract, but denies that this fact is not deny the fact and it contact with Exxon. (Roy admissible or relevant in light of should therefore be Decl., Ex. 5 (Merced Trial the fact that the Shackelfords deemed admitted. Transcript 10/28/11 PM), p. entered into an agreement to exclusively buy Exxon gasoline SMRH:408450013.1 -5- Plaintiff provides no legal Undisputed Material Facts And Supporting Evidence 1240:22–1242:12.) Merced RDA’s Response Defendants’ Reply and brand the station as an Exxon authority or explanation of station. (See Response to why the cited evidence is Paragraph 6 supra.) inadmissible. As a result, the objection should be disregarded. Plaintiff’s reference to the Shackelfords is not relevant to Mr. Randhawa’s lack of a relationship with Exxon. Plaintiff’s additional statements should therefore be disregarded. Defendants incorporate their Reply to Fact No. 6. 10. Mr. Randhawa never had Disputed. The 1415 R Street Plaintiff’s dispute is a contractual relationship with station operated as a Texaco/Shell illusory. Plaintiff’s Shell or Equilon. (Roy Decl., branded station from 1999 to at statement does not deny Ex. 3 (Randhawa Depo.),pp. least 2003 when MTBE was the fact and it should 109:22-110:04.) removed from gasoline. therefore be deemed Mr. Randhawa testified that admitted. Texaco offered him $79,000 to become a Texaco station which helped finance the tank upgrades. (Shannon Decl., Exh. 1, Randhawa Plaintiff’s additional fact statements are immaterial and irrelevant. Depo. (8/26/09) at 16:6-22.) This The RDA’s cited evidence “was the main reason” he changed is legally irrelevant. Mr. from Exxon to Texaco “because SMRH:408450013.1 -6- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply they offered - - Texaco offered, I Randhawa testified that he believe it was, $79,000.” (Id. at received a $79,000 16:6-22.) Mr. Randhawa contract advance from confirmed that the Texaco’s name Texaco that he used to was on the station and the finance UST replacement; dispensers once he change from an he did not testify that Exxon to Texaco station. (Id. at Texaco lent him money 14:9-12.) Mr. Randhawa testified, for that purpose. He furthermore, that he “was able to further testified that take Texaco and Shell credit card . Texaco did not install the . .” (Id. at 109:3-109:19.) tanks, did not hire or even suggest a contractor to install the tanks, did not tell him which tanks to install, and did not participate in the installation. (Shannon Dec., Ex. 1, p. 16; Second Roy Dec., Ex. 15, p. 17.) Second, even though Texaco had no role in selecting or installing them, the new tanks installed at 1415 R Street prior to the station’s switch to Texaco gasoline were state-of-the-art, double-walled fiberglass tanks with leak detection SMRH:408450013.1 -7- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply devices. (Second Roy Dec., Ex. 15, pp. 52-55.) And finally, no one has ever told Mr. Randhawa that there has been a release of gasoline from the new tank system at his station, nor does the RDA provide any evidence of one. (Id. at 63-64.) 11. The RDA is not asserting Admit. Admit. 12. The gasoline station The RDA admits that Mr. Pazin Plaintiff’s statement does located at 1455 R Street was owned and operated the 1455 R not deny the fact and it owned and operated by Brian Street Station, but denies that this should therefore be Pazin through his company fact is admissible or relevant. deemed admitted. a claim against Chevron U.S.A. Inc. at 1415 R Street. (Roy Decl., Ex 13 (Station Matrix).) Cardgas, Incorporated, during Plaintiff provides no legal the relevant time period. (Roy authority or explanation of Decl., Ex. 8 (B. Pazin Depo.), why the cited evidence is pp. 7:20-23, 8:3-4.) inadmissible. As a result, the objection should be disregarded. SMRH:408450013.1 -8- Undisputed Material Facts And Supporting Evidence 13. The station at 1455 R Merced RDA’s Response Defendants’ Reply Disputed. Mr. Pazin initially Plaintiff does not dispute Street was branded as a purchased gasoline from Pazin Oil that 1455 R Street has Pacific Pride card-lock station Company before later purchasing always been branded pursuant to a franchise gasoline from Pazin & Meyers. Pacific Pride card-lock agreement with Pacific Pride (See Roy Decl., Exh. 8, R. Pazin station pursuant to a and bought all of its gasoline Depo. at p. 17:17-22.) franchise agreement with from distributor Pazin & Pacific Pride or that the Myers. (Roy Decl., Ex. 8 (B. station only purchased Pazin Depo.), pp. 17:17-22, gasoline from a Pazin- 144:17–145:9.) related distributor. 14. 1455 R Street never had a The RDA admits that Mr. Pazin Plaintiff’s statement does franchise agreement with any did not have a franchise agreement not deny the fact and it Defendant and never with any defendants or purchase should therefore be purchased gasoline directly gasoline directly from these deemed admitted. from any defendant. (Roy defendants, but denies that this Decl., Ex. 8 (B. Pazin Depo.), fact is admissible or relevant. pp. 145:10–146:8.) Defendants admit that Pazin & Meyers delivered gasoline to the 1455 R Street station from a number of defendants including Chevron and Tesoro. (See Plaintiff provides no legal authority or explanation of why Defendants’ cited evidence is inadmissible. As a result, the objection should be disregarded. Defendants’ Rule 56.1 Statement at ¶¶ 17, 22-23.) Richard Pazin, statements are immaterial, owner of Pazin & Meyers, unsupported, and confirmed that he bought gasoline irrelevant. For example, for distribution to Merced stations contrary to Plaintiff’s during the relevant time period, suggestion, the undisputed including the Cardlock, from evidence shows that Chevron and Tesoro. (Miller SMRH:408450013.1 Plaintiff’s additional fact Chevron did not know that -9- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply Decl., Exh. 3, R. Pazin Depo. Pazin & Meyers was (8/24/09) at 57-59.) There is purchasing its gasoline for evidence that gasoline delivery to 1455 R Street. manufactured by Exxon was (Roy Decl., Ex. 6 delivered to the station. (See (Merced Trial Transcript Paragraph 15 below.) Brian Pazin 11/30/11 PM), p. 3743:6- testified, nonetheless, that he never 19.) received any “special training or instruction on MTBE and its potential to cause contamination . . . (Sawyer Decl., Exh. 7, B. Pazin Depo. (8/25/09) at 132:1-25.) Brian Pazin, moreover, was familiar with Material Safety Data Sheets from his work at Pazin & Meyers. (Id. at 174:17-176:14.) Similarly, the Court struck the Brian Pazin testimony cited by Plaintiff concerning his alleged training and his receipt of Material Safety Data Sheets. Plaintiff has no evidence to support these two allegations. Material Safety Data Sheets (“MSDSs”) for MTBE gasoline for the relevant time period do not contain any of the warnings or precautions called out in the above memorandum. In the 1993 MSDS, there is not one single mention of the need to implement “spill containment manholes” to prevent releases of MTBE gasoline during deliveries that could result in significant groundwater contamination. (Boone Decl., SMRH:408450013.1 -10- 5 The cited pages from Sawyer Dec., Ex. 7, B. Pazin Depo. (8/25/09) at 132:1-25 [CM/ECF Doc. No. 171, pg. 58 of 107] and Miller Dec., Ex. 3, R. Pazin Depo. (8/24/09) at 57-59 [CM/ECF Doc. No. 172, pg. 28-30 of 39] were stricken from the record. Therefore, Plaintiff’s Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply Exh. 4, Material Safety Data Sheet additional statements are (created February 16, 1993; unsupported by the revised June 30, 1994) at section evidence and should be 6.) disregarded. Additionally, the cited MSDS is from Ultramar who is not a party to this lawsuit. There is no evidence in the record of the content of MSDSs that Mr. Pazin received or who provided the MSDSs to him. There is also no causation evidence in the record suggesting that 1455 did not have spill containment manholes in 1993 or that the lack of those manholes was the actual cause of any release of gasoline that caused injury. Furthermore, Plaintiff has not identified any improper disposal instructions within the MSDS. Accordingly, the reference to Ultramar’s MSDS is irrelevant and SMRH:408450013.1 -11- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply should be disregarded. 15. Exxon also has no The RDA admits that Exxon did Plaintiff’s statement does connection 1455 R Street. not supply gasoline directly to the not deny the fact and it Richard Pazin, owner of Pazin Cardlock station, but Exxon & Myers (the sole supplier of gasoline was delivered to the gasoline to 1455 R Street), New West Petroleum. Exxon supplied various types of admitted that it sold gasoline to gasoline to the station, he did New West Petroleum (“New not supply Exxon gasoline West”) from 1995-2000 for because he did not have a delivery to Merced stations. position at the terminal to lift (Miller Decl., Exh. 4, Exxon gasoline. (Roy Decl., Supplemental Responses of Ex. 6 (Merced Trial Defendant ExxonMobil Transcript 11/30/11 AM), Corporation to Special p. 3701:17-25.) Interrogatories Propounded by deemed admitted. station through a jobber named testified that although he should therefore be Plaintiff City of Merced (Set Three) (Sept. 15, 2010) at Interrogatory No. 23.) Richard Pazin testified that New West was one of four gasoline suppliers used by Pazin & Meyers to supply Merced stations during the relevant time period. (Miller Decl., Exh. 3, R. Pazin Depo. (8/24/09) All of Plaintiff’s cited evidence was stricken— i.e., Miller Decl., Exh. 3, R. Pazin Depo. (8/24/09) at 57:9-59:1 [CM/ECF Doc. No. 172, pg. 28-30 of 39] and Miller Decl., Exh. 4, Supplemental Interrogatory Responses at Interrogatory No. 23 [CM/ECF Doc. No. 172, pg. 37 of 39].). Therefore, Plaintiff’s additional statements are unsupported by the evidence and should be disregarded. In addition, the RDA’s Response to Fact No. 15 mischaracterizes the cited at 57:9-59:1.) evidence, and there is no evidence in the record that Exxon-refined gasoline SMRH:408450013.1 -12- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply was ever delivered to 1455 R Street. 16. Chevron never owned or The RDA admits that Chevron Plaintiff’s statement does operated the service station at never owned or operated the not deny the fact and it 1455 R Street. (Roy Decl., station, but denies that this fact is should therefore be Ex. 9, (F. Soler Declaration), admissible or relevant. There is deemed admitted. ¶ 3.) testimony that gasoline manufactured by Chevron was supplied to the station. (See Paragraph 14 supra.) Plaintiff provides no legal authority or explanation of why the cited evidence is inadmissible. As a result, the objection should be disregarded. 17. While Pazin & Meyers (a The RDA admits that Chevron Plaintiff does not deny Chevron jobber) sold gasoline never owned or operated the that Richard Pazin manufactured by Chevron to station, but denies that this fact is testified that Chevron did 1455 R Street on rare relevant. The RDA further not know about Pazin & occasions, Chevron did not disputes that cited testimony Meyers deliveries to 1455 know about these sales. (Roy establishes that Chevron was not R Street, and fails to cite Decl., Ex. 9 (F. Soler Decl.), ¶ aware of the sale by Pazin & any evidence suggesting 3; Ex. 6 (Merced Trial Meyers of Chevron gasoline to the otherwise. Transcript 11/30/11 PM), p. station at 1455 R Street. 3743:6-19.) 18. Richard Pazin testified The RDA admits that Richard Plaintiff’s statement does that Chevron-refined gasoline Pazin testified as reported, but not deny the fact and it accounted for at most five denies that this fact is relevant. should therefore be percent of his total deliveries deemed admitted. to 1455 R Street. (Roy Decl., Ex. 6 (Merced Trial SMRH:408450013.1 -13- Undisputed Material Facts And Supporting Evidence Transcript 11/30/11 PM), Merced RDA’s Response Defendants’ Reply p. 3737:8-22).) 19. Tesoro never owned nor The RDA admits that Tesoro never Plaintiff’s statement does operated the service station at owned or operated the station, but not deny the fact and it 1455 R Street. (Roy Decl., denies that this fact is admissible should therefore be Ex. 10, (R. Mills Declaration), or relevant. Tesoro admits that it deemed admitted Plaintiff ¶ 3.) supplied gasoline directly to Pazin provides no legal authority & Meyers and to the station. or explanation of why the Brian Pazin testified, nonetheless, cited evidence is that he never received any “special inadmissible. As a result, training or instruction on MTBE the objection should be and its potential to cause disregarded. Plaintiff’s contamination ....” (Sawyer Decl., additional fact statements Exh. 7, B Pazin Depo. (8/25/09) at are unsupported by 132:1-25.) evidence, immaterial and irrelevant. Tesoro did not admit that it supplied gasoline to the station located at 1455 R Street. This statement is not followed by a citation to evidence, admissible or otherwise, in accordance with Local Rule 56.1(d). Therefore, Plaintiff’s statements are unsupported by the evidence and should be SMRH:408450013.1 -14- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply disregarded. 20. Tesoro did not have any The RDA disputes this fact on the Plaintiff’s statement control over the station, nor grounds that Defendants are should be deemed did it provide the station’s relying upon testimony which was admitted. Plaintiff’s owners and operators with any not disclosed during discovery in objection to Tesoro’s use instructions or guidance this matter. Richard Pazin, owner of a declaration is contrary related to the station’s of Pazin & Meyers and supplier to to Federal Rule of Civil operations, including their 1455 R Street, testified that he Procedure 56(c)(4), handling of gasoline, or their received gasoline MSDS from his permitting an “affidavit or choice, maintenance, and suppliers, and provided them to his declaration used to operation of station gasoline station customers. support or oppose a equipment. (Roy Decl., Ex. (Miller Decl., Exh. 3, R. Pazin motion” so long as it is 10, (R. Mills Declaration), ¶ (8/24/09) at 34:23-35:2.) “made on personal knowledge, set[s] out facts 5.) that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.” Plaintiff’s additional fact statements are immaterial and irrelevant. Plaintiff’s statement that Pazin & Meyers received MSDS from suppliers and provided them to various stations does not SMRH:408450013.1 -15- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply specifically controvert this fact regarding Tesoro’s lack of control at this particular station. Moreover, Plaintiff inaccurately portrays Mr. Pazin’s testimony, who testified MSDS were kept on file at Pazin & Meyers’ plant and were not routinely provided to stations, but were supplied upon request. (Transcript of R. Pazin, 34:2-35:8). 21. Tesoro did not sell or Disputed. Richard Pazin, owner of Plaintiff’s statement does deliver gasoline containing Pazin & Meyers, testified that he not deny the fact and it MTBE to 1455 R Street or bought gasoline for distribution to should therefore be have any gasoline sales Merced stations during the deemed admitted. agreements with any jobbers relevant time period, including the related to this station. (Roy Cardlock, from Tesoro. (Miller Plaintiff’s cited evidence Decl., Ex. 10, (R. Mills Decl., Exh. 3, R. Pazin Depo. from Miller Decl., Ex. 3, Declaration), ¶¶ 3, 4.) (8/24/09) at 57-59.) has been stricken from the record. Therefore, Plaintiff’s additional statements are unsupported by the evidence and should be disregarded. Moreover, Plaintiff’s statement that SMRH:408450013.1 -16- Undisputed Material Facts And Supporting Evidence Merced RDA’s Response Defendants’ Reply Pazin & Meyers bought gasoline from Tesoro for distribution to Merced stations, including Cardlock, does not specifically controvert this fact regarding Tesoro’s lack of sales or deliveries to this station, or lack of sales agreements with jobbers regarding this station 22. Tesoro sold product to The RDA admits that Tesoro sold Plaintiff’s statement does Pazin & Myers (not the 1455 gasoline to Pazin & Meyers. The not deny the fact and it R Street station) during 2003 RDA denies any implication that should therefore be only. (Roy Decl., Ex. 11 this fact suggests Tesoro gasoline deemed admitted. (Defendants Tesoro was not delivered to the 1455 R. Corporation and Tesoro Street Station. Pazin & Meyers Refining and Marketing sold gasoline to 1455 R Street. Plaintiff’s additional fact statements are immaterial and irrelevant. Company’s Response to Plaintiff City of Merced Redevelopment Agency’s First Set of Interrogatories to Defendants, Response to Interrogatory No. 5).) 23. As MTBE was phased out Admit. Admit. of gasoline sold in California SMRH:408450013.1 -17- Undisputed Material Facts And Supporting Evidence during 2003, Tesoro sold Merced RDA’s Response Defendants’ Reply gasoline containing MTBE to Pazin & Myers for one year (at most) during the relevant time period. (Roy Decl., Ex. 12 (3/14/02 Executive Order).) PLAINTIFF’S ADDITIONAL FACTS Plaintiff’s Additional Facts 24. The RDA’s expert concerning underground Defendants’ Response Deny. Defendants deny that Mr. storage tanks, Marcel Moreau, has decades of Moreau provided a detailed history of experience with storage and dispensing systems at Defendants’ knowledge concerning gas stations, and provided a detailed history of problems at the subject service stations. defendants’ knowledge concerning the problems of The RDA’s cited evidence does not storing and handling MTBE gasoline at service support the fact. Exhibits 2 and 3 of the stations. (Shannon Decl., Exh. 2, Expert Report of Shannon Declaration are Mr. Moreau’s Marcel Moreau (April 11, 2011), 1415 “R” Street compilation of site histories for 1415 section, pp. 1-8 and Shannon Decl., Exh. 3, 1455 “R” and 1455 R Street, respectively, based Street section pp. 1-10.) on document review. Neither exhibit provides any evidence that Exxon, Chevron, Shell or Tesoro had any knowledge of the site conditions or activity at either station prior to the initiation of this lawsuit. (See generally, Shannon Dec., Ex. 2 and 3.) Additionally, the cited evidence is SMRH:408450013.1 -18- Plaintiff’s Additional Facts Defendants’ Response hearsay and should be excluded. 25. California refiners, particularly Chevron’s Denied in part. The evidence cited by Northern California refinery, started adding MTBE to Plaintiff does not suggest—much less gasoline in 1986, and continued to utilize MTBE until establish—that Chevron added MTBE to the early 2000s when it was banned. (Shannon Decl., its gasoline in Northern California in Exh. 4, May 4, 2000, Blagojevic Decl., South Tahoe.) 1986. To the contrary, Chevron did not begin adding MTBE to its gasoline at its Northern California Refinery (the Richmond Refinery) until 1990. (Roy Decl. Ex. 9, [F. Solar 4/15/11 Decl.] at p. 3:28-4:1.) The RDA has also already admitted as part of the statute of limitation briefing that Exxon did not add MTBE to gasoline in Northern California until 1992. (See RDA’s Rule 56.1 Statement in Opposition to Defendants’ Motion for Summary Judgment re Statute of Limitations [CM/ECF Doc. No. 3695 (Master case); CM/ECF Doc. No. 158 (Merced RDA case)], ¶¶ 1, 35.) Additionally, Plaintiff’s statement is not supported by admissible evidence. The declarant was not an employee of any California refinery and therefore lacks sufficient personal knowledge. While he may have knowledge of sales of MTBE by Lyondell, he has no personal knowledge of what was done with that SMRH:408450013.1 -19- Plaintiff’s Additional Facts Defendants’ Response MTBE after the sale. 26. After supervising remediation of MTBE releases Admit that the statement was made but at Shell gasoline stations across the country for nearly dispute Plaintiff’s argumentative twenty years, Curtis Stanley, an engineer and characterization of that fact, which has hydrogeologist at Shell, described MTBE as the taken the statement out of context. “biggest environmental” issue facing United States oil companies. (Shannon Decl., Exh. 5, May 13, The statement is irrelevant for purposes 1998, E-mail from C. Stanley to C. Parkinson; Exh. 6, of evaluating nuisance and trespass Stanley Depo. (5/6/99) at 5:16-7:5.) because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Shell. 27. In 1981, Ben Thomas of Shell reported to an Admit that the statement was made but American Petroleum Institute (“API’) committee that dispute Plaintiff’s argumentative “approximately 20 percent of all underground storage characterization of that fact, which has tanks leak, leading to the possibility of groundwater taken the statement out of context. contamination.” (Shannon Decl., Exh. 7, March 31, 1981, Internal Arco Memo from R.N. Roth to MTBE The statement is irrelevant for purposes File; Exh. 8, Thomas Depo. (11/15/00) at 89:17- 90:9, of evaluating nuisance and trespass because it does not evidence affirmative South Tahoe].) conduct with a direct link to the subject sites. Evidence regarding ARCO is not relevant because it is not a party to this lawsuit. SMRH:408450013.1 -20- Plaintiff’s Additional Facts Defendants’ Response The statement is also inadmissible hearsay as to all Defendants except Shell. 28. Chevron and Shell were long standing members Admit. of API. (Shannon Decl., Exh. 9, Oct. 17, 2005, Letter The statement is irrelevant for purposes from W. Hughes to R. Greenwald at 1; Exh. 10, Oct. of evaluating nuisance and trespass 17, 2005, Letter from P. Condron to R. Greenwald at because it does not evidence affirmative 1.) Ultramar, Valero’s wholly owned subsidiary, was conduct with a direct link to the subject a member of API from approximately 1989 to 1993. sites. (Shannon Decl., Exh. 11, Sept. 15, 2005, Letter from T. Renfroe to R. Greenwald.) Evidence regarding Ultramar and Valero is not relevant because neither is party to this lawsuit. 29. Just a few years later, in 1984, API had already Admit that the statement was made but formed an Methyl-tertiary-Butyl Ether Task Force dispute Plaintiff’s argumentative (“MTBE Task Force”) which held meetings characterization of that fact, which has concerning “emerging issue[s] of MTBE in ground taken the statement out of context. water.” (Shannon Decl., Exh. 12, June 18, 1984, Memo from S. Cragg, API, to MTBE Task Force.) The statement is irrelevant for purposes The minutes of a June 1984 meeting state: of evaluating nuisance and trespass because it does not evidence affirmative “Some of the task force members indicated that MTBE had been found in ground water near leaking underground storage tanks from their service stations . . . It appears that the oxygenate components of gasoline, such as MTBE, migrate most rapidly underground . . .” conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants. (Ibid.) 30. Another memo reporting on the June 1984 SMRH:408450013.1 -21- Admit that the statement was made but Plaintiff’s Additional Facts API meeting also confirmed that gasoline Defendants’ Response dispute Plaintiff’s argumentative manufacturers were aware that “MTBE is a possible characterization of that fact, which has contaminant of groundwater, especially in association taken the statement out of context. with leaking gasoline storage tanks.” (Shannon Decl., Exh. 13, June 14, 1984, Arco Chemical The statement is irrelevant for purposes Company Internal Correspondence from B. Hoover to of evaluating nuisance and trespass S. Ridlon at 1.) because it does not evidence affirmative conduct with a direct link to the subject sites. Evidence regarding Arco is not relevant because it is not a party to this lawsuit. The statement is also inadmissible hearsay as to all Defendants. 31. In 1986, Dr. Peter Garrett, Marcel Moreau, Admit that the statements were made but and Jerry B. Lowry of the Maine Department of dispute Plaintiff’s argumentative Environmental Protection drafted a paper entitled characterization of that fact, which has “Methyl tertiary Butyl Ether as a Ground Water taken the statement out of context. Contaminant” (the “Maine Paper”) which was intended to be presented at an API sponsored The statement is irrelevant for purposes conference. (Shannon Decl., Exh. 14, at Cover and of evaluating nuisance and trespass Table of Contents.) The Maine Paper detailed because it does not evidence affirmative multiple problems with releases of MTBE gasoline conduct with a direct link to the subject from service stations, including: sites. (1) MTBE is more soluble in water and thus “spreads both further and faster than the gasoline” (2) “Groundwater contaminated with MTBE is difficult to remediate;” (3) MTBE will migrate out beyond gasoline and appear as a “halo” around the gasoline groundwater SMRH:408450013.1 -22- Plaintiff’s Additional Facts Defendants’ Response plume; (4) relatively small spills of MTBE gasoline (“a small driveway spill”) can result in “large” plumes of MTBE only groundwater contamination. (Ibid.) The authors of the Maine Paper recommended that either MTBE be removed from gasoline or that several changes be made to USTs before MTBE gasoline is stored in them. (Id. at 236-237.) 32. Valero admitted that its employees were Admit. aware of the Maine Paper at the time of its The statement is irrelevant for purposes publication. (Shannon Decl., Exh. 15, Valero of evaluating nuisance and trespass Corporate Representative Depostion, Early because it does not evidence affirmative Knowledge and Taste & Odor at Early Knowledge conduct with a direct link to the subject Issues, ¶ 3(a).) Joel Masticelli, a member of sites. Ultramar’s upper management, testified that Ultramar received information on the environmental fate of Evidence regarding Ultramar and Valero is not relevant because neither is party to MTBE gasoline from the API, the WSPA, and NPRA. (Boone Decl., Exh. 1, Masticelli Depo. (7/26/00) at 20-21, South Tahoe.) this lawsuit. The statement is also inadmissible hearsay as to all Defendants. 33. In June 1986, in a memo entitled “Marketing Admit that the statements were made but Environmental Concerns Regarding the Use of dispute Plaintiff’s argumentative MTBE in MOGAS, D.W. Callahan, a Chevron characterization, which has taken the employee, also noted that MTBE had “several statements out of context. disturbing properties.” (Boone Decl., Exh. 2, June 11, 1986, Memorandum, from O.T. Buffalow, San The statement is irrelevant for purposes Francisco, CA, to D.W. Callahan, re Marketing of evaluating nuisance and trespass Environmental Concerning Regarding the use of because it does not evidence affirmative MTBE in MOGAS at 1.) These “disturbing” conduct with a direct link to the subject SMRH:408450013.1 -23- Plaintiff’s Additional Facts properties included the high solubility and mobility of sites. Defendants’ Response MTBE as compared to the regular components of The statement is also inadmissible gasoline. (Ibid.) Mr. Callahan specifically warned hearsay as to all Defendants except that “MTBE utilization could increase the costs to Chevron. clean up leaks at service stations . . .(Ibid.) 34. In December 1986, Chevron personnel circulated Admit. an article published in a oil industry trade publication reporting on significant MTBE groundwater The statement is irrelevant for purposes contamination problems, highlighting, in particular, of evaluating nuisance and trespass the Maine Paper and its call for changes to USTs at because it does not evidence affirmative gasoline stations. (Boone Decl., Exh. 3, Dec. 30, conduct with a direct link to the subject 1986, Memorandum re MTBE.) sites. The statement is also inadmissible hearsay as to all Defendants except Chevron. 35. At the time Ultramar commenced distributing MTBE gasoline to its service stations in California , Disputed. Cited evidence does not support the fact. approximately 30-40 percent of its underground storage tanks had not yet been upgraded. (Boone Decl., Exh. 1, Masticelli Depo. (7/26/00) at 40:9-25, Evidence regarding Ultramar and Valero is not relevant because neither is party to this lawsuit. 41:1-23, South Tahoe.) The statement is also inadmissible hearsay as to all Defendants. 36. Material Safety Data Sheet (“MSDS”) Admit in part, Deny in part. Defendants regarding MTBE gasoline, for example, states as admit that referenced MSDS contains follows: generally the listed statements but dispute Plaintiff’s argumentative (1) under Accidental Release Measures, it SMRH:408450013.1 characterization. However, the -24- Plaintiff’s Additional Facts contains no warnings regarding the unique Defendants’ Response document is not relevant to the present capabilities of MTBE to contaminate a far greater motion. The cited MSDS is a document amount than non-MTBE gasoline, from Ultramar, which is not a party to this litigation. Plaintiff fails to cite to (2) it recommends using water to be sprayed on spills to reduce vapors which would cause the MTBE gasoline residue to be washed into the ground or adjacent sewers, (3) any evidence demonstrating the content of MSDSs prepared by any of the Defendants, that the MSDSs went to the owners of 1415 and 1455 R Street, or for larger spills it merely recommends diking that the actual MSDSs provided contained instructions for improper the spill “for later disposal”, disposal of gasoline with MTBE. (4) contains no requirements for special handling Accordingly, Fact No. 36 is not relevant. of MTBE gasoline (section 7), The statement is also inadmissible (5) under physical and chemical properties, it hearsay as to all Defendants. states that the odor threshold is .25 parts per million, when in fact odors associated with MTBE in drinking water have been detected as low as 4 to 5 parts per billion. Additionally, Material Safety Data Sheets state that there is “no data available” regarding the “degradability” of MTBE. In fact, there is substantial evidence that MTBE is very resistant to biodegradation. (Boone Decl., Exh. 4, June 30, 1994 Ultramar Material Safety Data Sheet.) 37. When Ultramar first introduced MTBE into gasoline in California, it made no effort to provide a Disputed. Cited evidence does not support the stated fact. warning with the gasoline unless it was ordered to do Evidence regarding Ultramar and Valero so by the Government. (Boone Decl., Exh. 1, Masticelli Depo. (7/26/00) at 51:22-25, 52:1-11, this lawsuit. South Tahoe].) SMRH:408450013.1 is not relevant because neither is party to -25- Plaintiff’s Additional Facts 38. In 1991, Chevron recognized that the Defendants’ Response Disputed due to lack of evidence. introduction of MTBE into gasoline in California Plaintiff’s cited evidence (Boone Dec., would substantially change the consequences of a Ex. 5 [CM/ECF Doc. No. 170, pg. 40-41 gasoline spill or leak. (Boone Decl., Exh. 5, Aug. 12, of 69]) was stricken from the record. 1991, Memorandum, TIP Letter #237, MTBE Effects.) The internal memo warns that while nonMTBE gasoline plumes are “relatively easy” to address, “MTBE on the other hand is a different The statement is also inadmissible hearsay as to all Defendants except Chevron. situation.” (Id. at 1.) The memo warns that MTBE gasoline releases will result in “larger” plumes of contamination that “will migrate” faster. (Id.) Specifically, the memo warns Chevron management that “[w]hen MTBE gets into the water then the trouble really starts.” (Id.) The memo concludes that: “Our highest degree of concern right now is with service stations without spill containment manholes that are, or will be, served by racks that are blending MTBE. The combination of MTBE gasoline being delivered, the lack of spill containment manholes, and shallow groundwater could be tremendously expensive for us in the long run. As they say, an ounce of prevention is worth a pound of cure, and in this case prevention is certainly prudent.” (Id. at 2.) 39. Another 1991 Memorandum by Chevron Admit that the statements were made but notes multiple additional safety precautions and dispute Plaintiff’s argumentative amended handling instructions need to be provided characterization, which has taken the when MTBE gasoline is being stored and distributed, statements out of context. including at service stations. The additional SMRH:408450013.1 -26- Plaintiff’s Additional Facts precautions and handling instructions identified by Defendants’ Response The fact is irrelevant for purposes of Chevron included: (1) “Spills or leaks of MTBE evaluating nuisance and trespass must be contained and prevented from contacting the because it does not evidence affirmative ground or entering the waste water drainage system,” conduct with a direct link to the subject (2) “Tanks containing MTBE should have double sites. bottoms and leak detections systems,” (3) “Provide proper facilities for shutdowns and tank cleaning to prevent any MTBE from being spilled or washing into the drainage system.” (Boone Decl., Exh. 6, The statement is also inadmissible hearsay as to all Defendants except Chevron. March 26, 1991, Memorandum, Chemical Entry Review for MTBE.) 40. In 1993, in discussing the increased problem Disputed based on lack of evidence. of MTBE groundwater contamination from service Plaintiff’s cited evidence (Boone Dec., station releases, Curtis Stanley wrote to one of his Ex. 7 [CM/ECF Doc. No. 170, pg. 46 of colleagues: “We need to convince management to 69]) has been stricken from the record. implement dual containment NOW!” (Boone Decl., Exh. 7, July 14, 1993, E-mail from C. Stanley to D. The fact is irrelevant for purposes of evaluating nuisance and trespass McGill [emphasis in original].) because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Shell. 41. In the mid-1990s, Chevron also acknowledged Admit that the quoted document that MTBE was driving factor to implement upgrades contains the referenced statement but to USTs and improve instructions on storage and dispute Plaintiff’s argumentative handling practices at service stations: characterization. SMRH:408450013.1 -27- Plaintiff’s Additional Facts “The USGS report points out that gasoline blended with MTBE may pose a greater risk to drinking water than non-oxygenated gasoline . . . . These concerns are not new, as Marketing raised the same issue ten years ago in connection with the Tank Integrity Program. . . . Marketing believes that MTBE in groundwater issue is just one more additional justification for the large Marketing capital investments in avoid terminal and service station leaks and spills.” Defendants’ Response The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Chevron. (Boone Decl., Exh. 8, April 27, 1995, Memo re MTBE in Ground Water Issue.) 42. In the late 1990s, Shell’s environmental Admit that the statement was made but personnel were also looking at “MTBE dispute Plaintiff’s argumentative Contamination” and “MTBE in Groundwater” issues. characterization of that fact, which has Curtis Stanley, one of Shell’s key environmental taken the statement out of context. personnel, concluded that, based on “research . . . extremely small releases can cause groundwater The fact is irrelevant for purposes of problems.” (Boone Decl., Exh. 9, May 14, 1998, E- evaluating nuisance and trespass mail from C. Stanley to K. Bell, et al.) because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Shell. 43. Stanley later advised that “[v]ery small Disputed based on lack of evidence. releases of MTBE (even small overfills seeping into Plaintiff’s cited evidence (Boone Dec., cracks in the pavement) have the potential to Ex. 10 [CM/ECF Doc. No. 170, pg. 53- SMRH:408450013.1 -28- Plaintiff’s Additional Facts adversely impact groundwater.” (Boone Decl., Exh. Defendants’ Response 54 of 69]) has been stricken from the 10, No. 3, 1998, E-mail from C. Stanley to J. Pedley.) record. Mr. Stanley further stated that “[m]y professional opinion is that MTBE . . . should not be used at all in areas where groundwater is a potential drinking water The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative supply.” (Id.) conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Shell. 44. In the late 1990s, Exxon undertook a “study” to Disputed. Plaintiff’s description of identify sources of potential releases from gasoline Exxon’s study is taken out of context stations “because MTBE contamination is and distorted. Plaintiff’s summary of increasingly being found in surface and ground the “study” is simply an orchestrated waters near gasoline stations, and has been identified attempt to exploit an irrelevant, but as a potential threat to public drinking water supply highly inflammatory illustration by an systems.” (Boone Decl., Exh. 11, March 30, 1999, Exxon employee who made a simple MTBE Release Source Identification at Marketing calculation of the volume of MTBE that Sites, at 2].) The study noted that “[t]he presence of would result in a given concentration in MTBE found in surface, ground and drinking waters a body of water. (Boone Dec., Ex. 11.) has been increasing [and] . . . [t]here are several That illustration was a mathematical reasons why increased MTBE presence can be calculation, not a statement that MTBE concern.” (Id at 2.) Exxon’s study specifically released at any particular site would concluded that “[s]mall leaks of gasoline (1 result in that concentration of MTBE in teaspoon) can translate into MTBE ground water drinking water. (Second Roy Dec., concentrations above the taste and odor detectable Ex. 14 (Liguori Deposition Transcript), threshold levels.” (Id. [emphasis added].) In fact, the pp. 133:25-138:15.) Exxon study included a graphic representation of the The fact is irrelevant for purposes of SMRH:408450013.1 -29- Plaintiff’s Additional Facts potential impact of “small releases” of MTBE on Defendants’ Response evaluating nuisance and trespass groundwater. (Id. at Figure I-1: Impact of Small because it does not evidence affirmative Releases.) conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Exxon. 45. Similarly, in the late 1990s, Curtis Stanley of Disputed based on lack of evidence. Shell also pointed out that “[v]ery small releases of Plaintiff’s cited evidence (Boone Dec., MTBE . . . have the potential to adversely impact Ex. 10 [CM/ECF Doc. No. 170, pg. 53- groundwater.” (Boone Decl., Exh. 10, Nov. 3, 1998, 54 of 69]) has been stricken from the E-mail from C. Stanley to J. Pedley at 1].) record. Mr. Stanley further candidly admitted that MTBE gasoline should not be sold on an indiscriminate basis The fact is irrelevant for purposes of evaluating nuisance and trespass to gasoline stations where there is inadequate because it does not evidence affirmative protection from spills, leaks and releases: conduct with a direct link to the subject My professional is opinion is MTBE and similar oxygenate should not be used at all in areas where groundwater is a potential drinking water supply. If it is used, engineering design and site operations (including act of subsurface monitoring) should be carefully developed to minimize the potential for release. sites. The statement is also inadmissible hearsay as to all Defendants except Shell. (Ibid.) 46. In 1999, Chevron’s personnel put together a Admit that the statements were made but “White Paper” on MTBE intended to address dispute Plaintiff’s argumentative questions about stricter regulation of underground characterization, which has taken the storage tanks. (Boone Decl., Exh. 12, Solving statements out of context. SMRH:408450013.1 -30- Plaintiff’s Additional Facts Problems from MTBE Contamination - It’s Not Just Defendants’ Response Regulating Underground Tanks.) Chevron’s White The fact is irrelevant for purposes of Paper specifically observed that [i]t is because of the evaluating nuisance and trespass differences in physical and chemical properties of because it does not evidence affirmative MTBE that it is more likely to reach groundwater [at conduct with a direct link to the subject service stations], as a result of incidental spills, sites. overfills and gasoline deliveries, even without underground storage tank leaks.” (Id. at 2 [emphasis in original].) Chevron thus also recognized that even small “incidental” spills and releases, caused by The statement is also inadmissible hearsay as to all Defendants except Chevron. individual handling gasoline at the station, had the capacity to reach and contaminate groundwater. More importantly, these types of leaks are only preventable through appropriate education and instruction of the individuals handling the gasoline. 47. In 1999, Curtis Stanley also observed that MTBE Admit that the statement was made but releases capable of causing groundwater dispute Plaintiff’s argumentative contamination arose not from the USTs themselves, characterization of that fact, which has but from improper handling practices at gasoline taken the statement out of context. stations by owners, operators, and jobbers: The fact is irrelevant for purposes of “You may, however, want to carefully consider what you say when the new tank upgrades are our first line of defense. While this is very true and the size of leaks has decreased substantially over the years, we are still finding MTBE at sites that have been upgraded. The presence of MTBE may not be due to a leak but could also be due to operational and construction factors.” evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Shell. (Boone Decl., Exh. 13, Feb. 2, 1999, E-mail from C. SMRH:408450013.1 -31- Plaintiff’s Additional Facts Stanley to F. Benton].) Defendants’ Response 48. Shell’s engineering coordinator, Glen Marshall, Admit that the statement was made but echoed the caution that releases of MTBE gasoline at dispute Plaintiff’s argumentative service stations was dependent on improved and characterization of that fact, which has alternative instructions as well as upgrades of the taken the statement out of context. entire UST system. In 1998, Mr. Marshall warned that the “‘Achilles Heel’” of [UST] systems has The fact is irrelevant for purposes of always been the ‘Bubba-factor’ . . . the best intentions evaluating nuisance and trespass of hardware manufacturers and designers being because it does not evidence affirmative ultimately defeated by poor installation and conduct with a direct link to the subject maintenance practices.” (Boone Decl., Exh. 14, sites. May 29, 1998, E-mail from G. Marshall to C. Stanley.) The maintenance practices Mr. Marshall is referring to are clearly the maintenance practices of service station owners and operators. A year later, The statement is also inadmissible hearsay as to all Defendants except Shell. Mr. Marshall continued to advised that “[u]pgrades addressed the inadvertent spills and releases, no root causes of tank or line leaks.” (Boone Decl., Exh. 15, March 12, 1999, E-mail from G. Marshall to C. Stanley.) 49. The RDA’s expert on underground storage tanks Disputed based on lack of evidence. (“USTs”), Marcel Moreau, noted that defendants Plaintiff’s cited evidence (Miller Dec., upgraded their gasoline storage systems, including Ex. 1 [CM/ECF Doc. No. 172, pg. 5-12 upgrading from bare steel USTs to fiberglass, at their of 39]) has been stricken from the own gasoline stations in an effort to address the record. Plaintiff lacks any evidence that increased risks posed by MTBE. (Miller Decl., Defendants had any knowledge of the Exh. 1, Expert Report of Marcel Moreau (April 11, conditions at 1415 and 1455 R Street or 2011) at section III, pp. 16-23.) Defendants were, in what was “necessary” at either site to fact, aware of numerous upgrades to USTs, safety SMRH:408450013.1 -32- Plaintiff’s Additional Facts devices, warning systems, and alternative and Defendants’ Response prevent a release. improved instructions to service station owners and operators as well as jobbers who delivered gasoline, that were necessary to prevent releases of MTBE gasoline which would contaminate groundwater in Merced. (Ibid.) 50. The Merced gasoline stations at issue in this Disputed based on lack of evidence. motion, unaware of the need for fiberglass tanks or Plaintiff’s cited evidence (Miller Dec., other upgrades, continued to utilize inadequate bare Ex. 1 [CM/ECF Doc. No. 172, pg. 5-12 steel UST systems well past the time when MTBE of 39]) has been stricken from the was prevalent in California gasoline. (Id) The record. Plaintiff has no evidence of the evidence shows that many, if not all, of the station sophistication of the owners of the sites owners and operators associated with stations at issue or that the owners actually relied on any were unsophisticated, and relied upon others, Defendant to provide instructions including defendants, to instruct them on how to regarding how to operate and maintain safely and properly operate and maintain their USTs their stations. and gasoline. (Id.) 51. The California regulatory authorities responsible Disputed. Cited evidence does not for oversight of releases from underground storage support that factual statement. The tanks were not advised by the oil industry until the statement is also irrelevant to the issue late 1990s that MTBE poses a serious threat to of nuisance and trespass. groundwater and drinking water in the State of California. (Sawyer Decl., Exh. 1, June 25, 1996, hearsay as to all Defendants except Letter from P. Pugnale, Shell Oil Company, to Shell. R. Ghirelli, California Regional Water Quality Control Board; and Sawyer Decl., Exh. 2, Letter from C Flanikan, Ultramar to California Environmental Protection Agency.) SMRH:408450013.1 The statement is also inadmissible -33- Plaintiff’s Additional Facts 52. Oil industry defendants upgraded their gasoline Defendants’ Response Disputed based on lack of evidence. storage systems (“USTs”), including upgrading from Plaintiff’s cited evidence (Miller Dec., bare steel USTs to fiberglass, at their own gasoline Ex. 1 [CM/ECF Doc. No. 172, pg. 5-12 stations in an effort to address the increased risks of 39]) has been stricken from the posed by MTBE. (Miller Decl., Exh. 1, Expert record. Report of Marcel Moreau (April 11, 2011) at section III, pp. 16-23.) 53. Tesoro was aware that MTBE was a groundwater Admit. contaminant as early as 1996. (Sawyer Decl., Exh. 4, The fact is irrelevant for purposes of August 31, 2000, Deposition of Robert C. Donovan at evaluating nuisance and trespass 32:1-34:9, and Deposition Exhibit 7 (March 31, 1995 because it does not evidence affirmative letter from Bruce Bauman). conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 54. Tesoro was engaged in the 1990’s in remediation Admit. of multiple stations with MTBE contamination. The fact is irrelevant for purposes of (Sawyer Decl., Exh. 4, August 31, 2000, Deposition evaluating nuisance and trespass of Robert C. Donovan at 103:11-18.) because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 55. Tesoro received reports on and attended Deny. Plaintiff mischaracterizes Mr. conferences at which MTBE’s characteristics were Donovan’s testimony. At one SMRH:408450013.1 -34- Plaintiff’s Additional Facts discussed. (Sawyer Decl., Exh. 4, August 31, 2000, Defendants’ Response conference personally attended by Mr. Deposition of Robert C. Donovan at 32:1-34:9.) Donovan, MTBE “was raised…as an unknown” (Transcript of Robert C. Donovan at 36:25-37:8); at another, Mr. Donovan received a report from a consultant and was unclear as to what extent MTBE was discussed (Id. at 32:68) (testifying that a consultant “attended a conference on MTBE, or perhaps a conference that mentioned MTBE”). Mr. Donovan did not testify that MTBE’s characteristics were discussed at either conference. The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 56. Tesoro has been a member of the API from at Admit that Tesoro has been a member of least 1999, and interacted with API prior to becoming API, but deny that Tesoro was a member a member. These interactions included receiving from 1999 to the present. Deny that information from API on MTBE and its impacts on Tesoro interacted with API prior to groundwater. (Sawyer Decl., Exh. 4, August 31, becoming a member, including receiving 2000, Deposition of Robert C. Donovan at 32:1-34:9, information from API on MTBE and its and Deposition Exhibit 7 (March 31, 1995 letter from groundwater impacts. Plaintiff’s SMRH:408450013.1 -35- Plaintiff’s Additional Facts Bruce Bauman.) Defendants’ Response statements are not supported by the cited evidence. Mr. Donovan’s only testimony regarding the American Petroleum Institute concerns Exhibit 7; Mr. Donovan testified that he had never seen Exhibit 7 and believes the document came to Tesoro with Jeff Baker, who was hired by Tesoro in late summer/early fall of 1998 and brought his files with him at that time. (Id. at 96:21-97:2; 97:9-98:9). This is insufficient to show Tesoro’s membership in API or interactions with API. The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 57. Tesoro has also been a member of the National Admit. Petrochemical Refiners Association since 1971. The fact is irrelevant for purposes of (Sawyer Decl. Exh. 34, 10/17/05 Letter from D. evaluating nuisance and trespass Martin to R. Greenwald, Tesoro Trade Organization because it does not evidence affirmative Information Disclosure.) conduct with a direct link to the subject SMRH:408450013.1 -36- Plaintiff’s Additional Facts Defendants’ Response sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 58. Tesoro, however, took no special measures to Deny. Plaintiff’s statement prevent MTBE contamination. In fact, Tesoro, mischaracterizes Mr. Donovan’s despite its knowledge, elected to treat gasoline with testimony. Mr. Donovan was never MTBE no differently than gasoline without MTBE. questioned about whether Tesoro elected (Sawyer Decl., Exh. 4, August 31, 2000, Deposition to treat gasoline with MTBE differently of Robert C. Donovan at 112:9-115:8.) than gasoline without MTBE. The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except Tesoro. 59. An API research proposal, sponsored by an Admit that the statement was made but Exxon representative, would have studied the “Fate, dispute Plaintiff’s argumentative Transport, [and] Impact of Gasoline Containing characterization of that fact, which has Oxygenates in Groundwater” in order to “respond to taken the statement out of context. regulatory agencies considering the promulgation of more stringent environmental regulations governing The fact is irrelevant for purposes of oxygenates in gasoline.” (Sawyer Decl., Exh. 6, 1988 evaluating nuisance and trespass Health & Environmental Project Proposals.) because it does not evidence affirmative conduct with a direct link to the subject SMRH:408450013.1 -37- Plaintiff’s Additional Facts Defendants’ Response sites. The statement is also inadmissible hearsay as to all Defendants. 60. A year later yet another API research proposal Admit that the statement was made but reiterated the need for industry to respond to the dispute Plaintiff’s argumentative claims that MTBE gasoline warranted special characterization of that fact, which has handling, stating bluntly: “At present, industry has taken the statement out of context. no scientific data to refute these claims.” The proposal conceded that there was “a downside risk The fact is irrelevant for purposes of that the results may show that oxygenates, to some evaluating nuisance and trespass extent, increase groundwater contamination problems because it does not evidence affirmative from gasoline leaks and spills.” (Sawyer Decl., conduct with a direct link to the subject Exh. 8, API Memo dated February 16, 1988.) sites. The statement is also inadmissible hearsay as to all Defendants. 61. The RDA’s complaint alleges that the Admit. defendants’ “negligent, reckless, intentional and ultra-hazardous activity, including failure to warn of properties of MTBE and the need to take special precautions when handling MTBE, were a substantial factor in creating a nuisance.” (Sawyer Decl., Exh. 9, excerpts from First Amended Complaint.) SMRH:408450013.1 -38- Plaintiff’s Additional Facts 62. On December 17, 1986, EPA held a “public Defendants’ Response Admit that the statement was made but focus meeting” for MTBE. This meeting was dispute Plaintiff’s argumentative attended by representatives of ARCO Chemical Co., characterization of that fact, which has Exxon, Texaco, API, and others. The minutes of that taken the statement out of context. meeting make clear that EPA brought to the group’s attention the agency’s concern about groundwater The fact is irrelevant for purposes of contamination: evaluating nuisance and trespass because it does not evidence affirmative An additional concern brought out by [EPA] research was the contamination of ground water supplies by MTBE. There are over 700,000 underground storage tanks for petroleum products in the US and about 30% of these tanks leak. conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants. (Sawyer Decl., Exh. 10, Minutes for the Public Focus Meeting (NJDEP-MTBE-CONTENTION- 000100000105)) 63. Defendants’ response to growing concern about Admit that the statement was made but MTBE contamination of groundwater was to dispute Plaintiff’s argumentative stonewall. An internal Chevron memo summarized characterization of that fact, which has the situation as follows: taken the statement out of context. Because of the perceived health effects, local and state regulatory agencies are concerned with the cleanup of ground water containing MTBE . . . Two considerations impact MTBE. One is the potential health risk, and the second is the increased solubility over [BTEX compounds]. .. MTBE is significantly more soluble in water than BTEX. Consequently, the dissolved ‘halo’ from a leak containing MTBE can be expected to extend farther and spread faster than a gasoline leak that does not include SMRH:408450013.1 The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative conduct with a direct link to the subject sites. The statement is also inadmissible hearsay as to all Defendants except -39- Plaintiff’s Additional Facts MTBE as one of the constituents. . . . Further compounding the problem . . . MTBE is more difficult to remove from ground water using current technology . . . Cleanup of a gasoline leak/spill containing MTBE can be expected to initially cost more in capital and O&M than a conventional gasoline leak/spill. Defendants’ Response Chevron. Industry representatives from Arco, Exxon . . . and Texaco met with EPA in December, 1986 at a ‘focus meeting’ to discuss MTBE. ARCO’s representative felt the EPA’s major concern was the potential for ground water contamination .. . Manufacturers of MTBE are attempting to establish an industry group to `negotiate’ the test rule with EPA . . . Chevron has experience in three states involving clean-up of ground water containing MTBE (Florida, Maryland and Texas). . . . The possible move to restrict the use of MTBE in Maine appears to be an isolated action and not a trend. However, this could change if other states perceive the threat to ground water to be great or if Maine becomes exceptionally vocal . (Sawyer Decl., Exh. 11, Memorandum dated February 13, 1987 (NJDEP-MTBECONTENTION000055-000057).) 64. At ARCO’s initial request (NJDEP-MTBE- Admit that the statement was made but CONTENTION-000106), the API’s Groundwater dispute Plaintiff’s argumentative Technical Task Force (whose members included characterization of that fact, which has representatives of ARCO, Exxon, Shell, Chevron, taken the statement out of context. Texaco, and BP, among others), attacked the Maine Department of Environmental Protection article even SMRH:408450013.1 -40- The statement is irrelevant for purposes Plaintiff’s Additional Facts though they knew based on their own experiences Defendants’ Response of evaluating nuisance and trespass that the authors were correct: because it does not evidence affirmative conduct with a direct link to the subject The authors’ “recommendations” that MTBE... be either banned as gasoline additives or required double-lined storage tanks is clearly a policy statement and not an objective, credible scientific conclusion. Furthermore, data presented in this paper as well as those generated by ongoing API research indicate that such a policy is reactionary, unwarranted and counterproductive. sites. The statement is also inadmissible hearsay as to all Defendants. (Sawyer Decl., Exh. 12, Memorandum dated January 8, 1987 (NJDEP-MTBECONTENTION000106) and API letter dated January 28, 1987 (NJDEP-MTBE CONTENTION-000050-000051).) 66. The MTBE producers -- including ARCO, Exxon Disputed based on lack of evidence. and Texaco -- formed an “MTBE Committee” to deal Plaintiff’s cited evidence (Sawyer Dec., with potential regulatory concerns about MTBE. In Ex. 14 [CM/ECF Doc. No. 171, pg. 99- contrast to their internal concerns about MTBE, the 100, 102-105 of 107]) has been stricken Committee submitted formal comments to EPA from the record. insisting that MTBE posed no environmental problems and arguing that environmental testing would be unnecessary and counter-productive in view The fact is irrelevant for purposes of evaluating nuisance and trespass because it does not evidence affirmative of MTBE’s lack of environmental risks: conduct with a direct link to the subject We believe that the information provided supports the conclusion that MTBE does not represent a drinking water hazard... sites. The statement is also inadmissible hearsay as to all Defendants. The following discussion establishes that there is no evidence that MTBE poses any SMRH:408450013.1 -41-

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