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

Filing 3808

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Partial Summary Judgment Memorandum of Law on Plaintiffs' Claim for Primary Restoration at the Ridgewood Trial Site. Document filed by Shell Oil Company. Responses due by 11/1/2013 (Attachments: #1 Supplement Rule 56.1 Statement of Material Facts)(Wallace, Richard) Modified on 10/2/2013 (db).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE METHYL TERTIARY BUTYL ETHER
PRODUCTS LIABILITY LITIGATION
Master File No. 1:00 – 1898
MDL 1358 (SAS)
M21-88

This document pertains to:
New Jersey Department of Environmental
Protection, et al. v. Atlantic Richfield Co., et al.
No. 08 Civ. 312

SHELL’S LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS SUBMITTED IN
SUPPORT OF SHELL’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON
PLAINTIFFS’ CLAIM FOR PRIMARY RESTORATION AT THE RIDGEWOOD
TRIAL SITE

SEDGWICK LLP
2900 K Street, NW
Harbourside, Suite 500
Washington, DC 20007
[phone]
Attorneys for Defendants Shell Oil Company, Shell Oil
Products Company LLC, Shell Trading (US) Company,
Equilon Enterprises LLC, and Motiva Enterprises LLC

Defendants Shell Oil Company, Shell Oil Products Company LLC, Shell Trading (US)
Company, Equilon Enterprises LLC, and Motiva Enterprises LLC (collectively “Shell”) submit
this statement of material facts as to which there is no genuine dispute in support of their Motion
for Partial Summary Judgment on Plaintiff’s Claims for Primary Restoration at the Ridgewood
Trial Site.
1.

In 1987, a release of gasoline including MTBE was detected in the Village of

Ridgewood’s Walthery and Twinney drinking water wells. (Declaration of Richard E. Wallace,
Jr. in Support of Shell Defendants’ Motion for Partial Summary Judgment (“Wallace Decl.”), ¶1,
Exh. 1 (Walthery and Twinney Well Sampling Results, NJDEP-SITE220-026052 to 026053;
NJDEP-SITE220-026055; and NJDEP-SITE220-026057; Wallace Decl., ¶8, Ex. 8 (Revised Site
Summary, ID #11346 Shell Station #138490, Jan. 2013, at 52).)
2.

In 1992, the Village installed a treatment system on the Walthery and Twinney

drinking water wells. (Wallace Decl. ¶1, Exh. 1 (June 1992 letter from William Mowell to John
Horan, SH-NJ-WG012572 to SH-NJ-WG012577).)
3.

The Village brought suit against Shell and several other companies, as well as the

New Jersey Department of Transportation, to recover those treatment costs. Shell and two other
defendants settled the claims of the Village in 1994 and, as part of the settlement, paid for the
Village’s treatment costs. (Wallace Decl. ¶2, Exh. 2 (1994 Settlement Agreement SH-NJ-XX081405 to SH-NJ-XX-081417).)
4.

Additional gasoline release releases were reported in the years after the 1987

release, most recently in 1998. (Wallace Decl., ¶8, Exh. 8 (Revised Site Summary , ID #11346
Shell Station #138490, Jan. 2013, at 52).)

5.

The Village brought a second suit against Shell in 1998, this time seeking costs it

incurred to upgrade a treatment system for a third water well, the Paramus well. In 1999, Shell
settled that case, too, and again paid the Village for its treatment costs, all at no cost to NJDEP.
(Wallace Decl. ¶3, Exh. 3 (1999 Settlement Order, SH-NJ-XX-048711 to SH-NJ-XX-048717);
Wallace Decl. ¶4, Exh. 4 (Plaintiff’s Amended Responses to Defendants’ Requests for
Admission Related to the Shell Ridgewood Trial Site (“RFAs”) at No. 81).)
6.

On August 31, 2000, NJDEP issued an Administrative Order and Notice of Civil

Administrative Penalty Assessment against Shell for the Ridgewood Site. In January 2007,
NJDEP and Shell entered into an Administrative Consent Order which settled NJDEP’s claims
for alleged violations or shortcomings in the remedial work at Ridgewood, as well as NJDEP’s
claims for its oversight costs and a penalty. (Wallace Decl., ¶5, Exh. 5 (January 9, 2007
Administrative Consent Order, SH-NJ-BB000058 to SH-NJ-BB000072).)
7.

MTBE has not been detected in any Ridgewood supply wells at levels above the

groundwater quality standards since 1998. (Wallace Decl. ¶1, Exh. 1 (VOR Municipal Well
Sampling Results, SH-WK-RIDGEWOOD 009195 to 009198); Wallace Decl. ¶4, Exh. 4
(Amended Responses to RFAs Nos. 58, 59, 60).)
8.

MTBE has not been detected at any level in any of the Ridgewood wells since

2008. (Wallace Decl. ¶1, Exh. 1 (VOR Municipal Well Sampling Results, SH-WKRIDGEWOOD 009195 to 009198); Wallace Decl. ¶3, Exh. 3 (1999 Settlement Order, SH-NJXX-048711 to SH-NJ-XX-048717); Wallace Decl. ¶4, Exh. 4 (Plaintiff’s Amended Responses to
RFAs Nos. 61, 62, 63).)
9.

The Shell Defendants have already installed 85 monitoring and extraction wells at

the Ridgewood Site to monitor the location and size of the MTBE plume. (Declaration of Julian

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 2

Davies in Support of Shell Defendants’ Motion for Partial Summary Judgment (“Davies Decl.”),
¶17, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown Approval, SH-NJSCI467567).)
10.

With NJDEP approval, active remediation at the Ridgewood Site ended in 2009.

(Davies Decl. ¶¶11, 12, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown
Approval, SH-NJ-SCI467567, at Attachment A (Remedial Action Progress Report Addendum
Remediation System Shutdown Request, February 2009).)
11.

The Licensed Site Remediation Professional-of-Record (“LSRP-of-Record”)

responsible for overseeing remediation at the Ridgewood Trial Site is Julian Davies. (Davies
Decl. ¶2.)
12.

Mr. Davies has been the LSRP-of-Record of the Ridgewood Site since 2010.

(Davies Decl. ¶2.)
13.

As the LSRP-of-Record at the Ridgewood Site, Mr. Davies is responsible for

oversight of the investigation and remediation of the Site, without direct supervision or prior
approval of NJDEP’s Site Remediation Program (“SRP”), and he has authority under the SRRA
to conduct investigations, approve remedial alternatives, and determine when remedial action is
complete. (Davies Decl. ¶3.)
14.

Under the SRRA, LSRPs “‘step into the shoes’ of the Department of

Environmental Protection (Department) to oversee the remediation of contaminated sites in most
instances.” (Davies Decl. ¶4, Exh. 1 (NJDEP SRP, Overview of the Licensed Site Remediation
Professional (LSRP) Program, April 2011).)

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 3

15.

Mr. Davies is required to oversee the remediation of contaminated sites in

accordance with NJDEP’s applicable standards, regulations and technical guidance for
responsible parties. (Davies Decl. ¶4.)
16.

LSRPs are subject to a strict code of conduct contained in the SRRA at C.58:10C-

16and must ensure that remediations are protective of human health, safety and the environment.
(Davies Decl. ¶¶4, 7.)
17.

Under the SRRA code of ethics, an LSRP’s “highest priority in the performance

of professional services shall be the protection of public health and safety and the environment.”
(Davies Decl. ¶7; C.58:10C-16.)
18.

In his role as LSRP-of-Record at the Ridgewood Site, Mr. Davies has been

responsible for making professional judgments pertaining to the investigation and remediation of
environmental contamination at the Site. In doing so, he has exercised independent professional
judgment and reasonable care and diligence, and he has been mindful of the SRRA’s
requirement that an LSRP’s highest priority is the protection of public health and safety and the
environment. (Davies Decl. ¶9.)
19.

By the time Mr. Davies became the LSRP-of-Record for the Ridgewood Site, two

active remediation systems, a soil vapor extraction (“SVE”) system and a groundwater pump and
treat system, had already been in place. (Davies Decl. ¶10.)
20.

The SVE system at the Ridgewood Site, which was connected to 18 wells on and

around the Ridgewood Site, ceased operation in February 2009. (Davies Decl. ¶11; Exh. 2 (2012
Groundwater and Soil Remediation System Shutdown Approval, SH-NJ-SCI467567, at
Attachment A (Remedial Action Progress Report Addendum Remediation System Shutdown
Request, February 2009).)

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 4

21.

The groundwater pump and treat system also ceased operation in 2009. (Davies

Decl. ¶12, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown Approval, SHNJ-SCI467567, at Attachment A (Remedial Action Progress Report Addendum Remediation
System Shutdown Request, February 2009).)
22.

In 2009, NJDEP approved a Remedial Action Progress Report Addendum

Remediation System Shutdown Request requesting a temporary active remediation shutdown at
the Site. (Davies Decl. ¶¶11, 12, Exh. 2 (2012 Groundwater and Soil Remediation System
Shutdown Approval, SH-NJ-SCI467567, at Attachment A) (Remedial Action Progress Report
Addendum Remediation System Shutdown Request, February 9, 2009); Attachment B (Remedial
Action Progress Report Addendum Approval, July 13, 2009).)
23.

NJDEP reiterated that approval in 2010. (Davies Decl. ¶¶11, 12, Exh. 2 (2012

Groundwater and Soil Remediation System Shutdown Approval, SH-NJ-SCI467567, at
Attachment C) (Remedial Action Progress Report Addendum Approval and CEA Approval,
February 25, 2010).)
24.

The SVE system remained on the Site, but inactive, until 2012. (Davies Decl.

¶11, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown Approval, SH-NJSCI467567).)
25.

The groundwater pump and treat system remained on the site, but inactive, until

2012. (Davies Decl. ¶12, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown
Approval, SH-NJ-SCI467567).)
26.

On September 12, 2012, in his role as LSRP-of-Record, Mr. Davies approved the

permanent shutdown and removal of the SVE and groundwater pump and treat equipment from
the Ridgewood Site. With NJDEP approval, neither system had been operated since 2009.

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 5

(Davies Decl. ¶13, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown
Approval, SH-NJ-SCI467567, at 2).)
27.

By letter dated March 28, 2006, NJDEP’s SRP approved an Off-Site Remedial

Action Workplan (“RAW”) that proposed a Natural Remediation Compliance Program –
Monitored Natural Attenuation – as the remedial action for off-site groundwater at Ridgewood.
(Davies Decl. ¶15, Exh. 3 (March 28, 2006 letter from William S. Hose Approving the Off-Site
Remedial Action Workplan).)
28.

The March 2006 approval letter specifically identified 36 wells that needed to be

sampled, and the sampling frequency for those wells, as part of the Natural Remediation
Compliance Program. (Davies Decl. ¶15, Exh. 3 (March 28, 2006 letter from William S. Hose
Approving the RAW).)
29.

NJDEP’s SRP approved removing certain of the wells at the Ridgewood Site from

the sampling schedule because it determined that sampling them was no longer necessary.
(Davies Decl. ¶15, Exh. 3 (March 28, 2006 letter from William S. Hose Approving the RAW).)
30.

NJDEP’s SRP did not require the installation of any additional monitoring wells

as part of its RAW approval. (Davies Decl. ¶15, Exh. 3 (March 28, 2006 letter from William S.
Hose Approving the RAW).)
31.

On September 12, 2012, in his role as LSRP-of-Record, Mr. Davies approved

Monitored Natural Attenuation (“MNA”) as the remedial strategy for on-site groundwater at the
Ridgewood Site. (Davies Decl. ¶16, Exh. 2 (2012 Groundwater and Soil Remediation System
Shutdown Approval, SH-NJ-SCI467567, at 2).)
32.

After examining the historical sampling results from 30 on-site and off-site

groundwater wells, in his role as LSRP-of-Record, Mr. Davies determined that annual sampling

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 6

of 18 groundwater wells should continue as part of the MNA remedial strategy and that annual
sampling of these wells was appropriate for purposes of protecting public health and safety and
the environment, including flora and fauna in the vicinity of the Ridgewood Site. (Davies Decl.
¶16.)
33.

Mr. Davies did not determine, in his role as LSRP-of-Record, that installation

and/or sampling of any additional monitoring wells was necessary or appropriate. (Davies Decl.
¶16.)
34.

The current approved remedial strategy at the Ridgewood Site is MNA. (Davies

Decl. ¶15, Exh. 2 (2012 Groundwater and Soil Remediation System Shutdown Approval, SHNJ-SCI467567, at 2).)
35.

More than 50 monitoring wells are still in place at the Ridgewood Site. (Davies

Decl. ¶17.)
36.

In his role as LSRP-of-Record at the Ridgewood Site, upon the exercise of

reasonable care and diligence and by applying the knowledge and skill ordinarily exercised by
licensed site remediation professionals in good standing practicing in the State at the time these
professional services are performed, Mr. Davies has determined that no additional active
remediation is needed at the Ridgewood site and that the current program of MNA is appropriate
for purposes of protecting public health and safety and the environment, including flora and
fauna in the vicinity of the Ridgewood Site. (Davies Decl. ¶18, Exh. 2 (2012 Groundwater and
Soil Remediation System Shutdown Approval, SH-NJ-SCI467567).)
37.

Approximately 85 different wells have been in place at the Ridgewood Site at one

time or another, some of which are located as far as 1,200 feet from the station itself. (Davies
Decl. ¶17.)

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 7

38.

More than 2,000 groundwater samples from those 85 wells have been collected

and analyzed for up to 15 different chemical constituents during the course of the 25-year
investigation and remediation of the Ridgewood Site. (Davies Decl. ¶17.)
39.

During the course of the 25-year investigation and remediation of the Ridgewood

Site, additional sampling data has been collected from the Village of Ridgewood Water
Department supply wells in the vicinity of the Ridgewood Site. (Davies Decl. ¶17.)
40.

The former NJDEP case manager assigned to the Ridgewood Site, Donna

Plummer, testified in this case that her goal at this and other sites is to “protect municipal wells
and clean up contaminated sites as quickly as possible.” (Wallace Decl. ¶6, Exh. 6 (Mar. 14,
2012 Deposition of Donna Plummer, at 439:18-23).)
41.

Ms. Plummer directed the remediation of the Ridgewood Site beginning in 1988.

(Wallace Decl. ¶6, Exh. 6 (Mar. 13, 2012 Deposition of Donna Plummer, at 69:6-17).)
42.

In 2006, Ms. Plummer was the case manager for the Ridgewood Site when

NJDEP approved a final Remedial Action Workplan for the Site. (Wallace Decl. ¶6, Exh. 6
(Mar. 13, 2012 Deposition of Donna Plummer, at 70-71).)
43.

By 2006, when NJDEP approved the final Remedial Action Workplan, Shell had

installed enough wells to delineate contamination, and had achieved the goals of controlling the
plume and reducing the levels of contamination. (Wallace Decl. ¶6, Exh. 6 (Mar. 13, 2012
Deposition of Donna Plummer, at 70-72, 193-94, 205-06).)
44.

Shell was “very responsive” to NJDEP’s requests to conduct investigation and

remediation. (Wallace Decl. ¶6, Exh. 6 (Mar. 13, 2012 Deposition of Donna Plummer, at
126:18-20).)

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 8

45.

Plaintiffs’ expert, Anthony Brown, a California hydrogeologist, has opined that

additional monitoring wells (i.e., in addition to the 85 wells that Shell previously installed on the
site) are needed for the Ridgewood Site. (Wallace Decl. ¶ 8, Exh. 8 (Revised Cost Summary, ID
# 11346 Shell Service Station #138490, Jan. 2013, § A, pp. 1-4, Jan. 2013).)
46.

Mr. Brown has opined that additional investigation should be conducted to

determine whether more remediation “may” be needed. He offers the following opinions, among
others, about the Ridgewood Site:
13.

“Remediation performed to date may have effectively addressed on-site
groundwater contamination.” …

18.

“Additional on-site remediation of groundwater is possibly required.”

19.

“Additional off-site remediation of groundwater may be required. … The most
recent contaminant concentrations detected off-site would not warrant the
implementation of an off-site groundwater remediation system. However, based
upon the results of additional investigation, particularly in the transmissive Z4
bedrock unit, an off-site groundwater remediation system may be required.”

(Wallace Decl. ¶ 8, Exh. 8 (Revised Site Summary, ID # 11346 Shell Service Station #138490,
Jan. 2013, § 10.0, p. 56).)
47.

Mr. Brown recommends additional active remediation at all but two of Plaintiffs’

10 Trial Sites, Ridgewood and one other. (Wallace Decl. ¶ 7, Exh. 7 (Revised Expert Report of
Anthony Brown, January 2013, § 1.8, p. 15).)
48.

Mr. Brown opines that 18 new wells, as well as five additional years of

monitoring, are needed at the Ridgewood site, at a total cost of more than $1.3 million. (Wallace
Decl. ¶ 8, Exh. 8 (Revised Cost Summary, ID # 11346 Shell Service Station #138490, Jan. 2013,
§ A, pp. 1-4, Jan. 2013).)
49.

Mr. Brown does not identify any cleanup or removal costs necessary to

accomplish “primary restoration” at the Ridgewood Trial Site. Instead, Mr. Brown states that

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 9

“[t]he need for remediation would be reevaluated at th[is] site[ ] as additional data are generated
from the proposed site investigations.” (Wallace Decl. ¶ 7, Exh. 7 (Revised Expert Report of
Anthony Brown, January 2013, § 1.8, p. 15).)
50.

Mr. Brown does not present any evidence that the MNA program currently in

place at the Ridgewood site is inappropriate or insufficient, or that anything more is required:
[T]he current off-site contaminant concentrations in groundwater do not
justify implementation of an active remediation system. Additional
investigation proposed at these sites may indicate that off-site remediation
of groundwater contamination is required. However, until such time, the
MNA alternative is effective in the short-term, and may be effective in the
long-term….
(Wallace Decl. ¶ 9, Exh. 9 (Revised Feasibility Study, January 2013, § 4.1.2, p. 19).)
51.

At three of the other trial sites at issue in this litigation, Plaintiffs performed

“limited additional site investigations” during discovery to determine whether remediation to
achieve primary restoration was necessary. The Ridgewood Trial Site was not among them.
(Wallace Decl. ¶ 7, Exh. 7 (Revised Expert Report of Anthony Brown, January 2013, § 1.9, p.
16).)
53.

Mr. Brown does not disagree with NJDEP’s approval of the shutdown of the

active remediation systems at the Ridgewood Site. (Wallace Decl. ¶ 11, Exh. 11 (Deposition of
Anthony Brown, June 3, 2013, at 881:19-22).)
54.

Mr. Brown is not an LSRP. (Wallace Decl. ¶ 11, Exh. 11 (Deposition of Anthony

Brown, May 28, 2013, at 68:25-69:2).)
55.

No one has indicated to Mr. Brown that the LSRP’s work at the Ridgewood Site

has been in any way inadequate. (Wallace Decl. ¶ 11, Exh. 11 (Deposition of Anthony Brown,
June 3, 2013, at 898:12-20).)

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 10

56.

Mr. Brown has never made any attempt to discuss the Ridgewood Site with the

LSRP for the Site. (Wallace Decl. ¶ 11, Exh. 11 (Deposition of Anthony Brown, June 3, 2013,
at 880:22-25).)
57.

NJDEP Deputy Commissioner Irene Kropp was deposed on June 6, 2013, and

admitted, “I think primarily the money that ONRR, whatever you call it, received through
natural resource damage claims was spent on projects and acquisitions. I’m not aware of when
we’ve gone back in and said to somebody we’re taking your NRD contribution and moving
your site from cleanup standards to predischarge, if that’s your question.” (Wallace Decl. ¶ 6,
Exh. 6 (Deposition of Irene Kropp, June 6, 2013, at 224:9-19).)
58.

The NJDEP does not recommend or require any additional investigation or

remediation at the Site. (Davies Decl. ¶18, Exh. 2 (2012 Groundwater and Soil Remediation
System Shutdown Approval, SH-NJ-SCI467567).)

Dated: October 1, 2013

Respectfully submitted,

___/s/ Richard E. Wallace, Jr.______________________
Richard E. Wallace, Jr.
Michael L. Williams
Marie S. Dennis
SEDGWICK LLP
2900 K Street, NW
Harbourside, Suite 500
Washington, DC 20007
[phone]
Attorneys for Defendants Shell Oil Company, Shell Oil
Products Company LLC, Shell Trading (US) Company,
Equilon Enterprises LLC, and Motiva Enterprises LLC

Shell’s Notice of Motion and Motion for Partial Summary Judgment re: Ridgewood

Page 11

PROOF OF SERVICE VIA LEXIS/NEXIS FILE & SERVE AND E-MAIL
I, Kristin McCormick, hereby declare under penalty of perjury under the laws of the United
States of America that a true and accurate copy of the foregoing was served via Lexis/Nexis File
& Serve and ECF on all parties on this 1st day of October 2013.

________/s/ Kristin McCormick
Kristin McCormick