In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
3814
AFFIDAVIT of Julian Davies, LSRP in Support re: (284 in 1:08-cv-00312-SAS) MOTION for Partial Summary Judgment on Plaintiffs' Claim for Primary Restoration at the Ridgewood Trial Site.. Document filed by Equilon Enterprises LLC, Motiva Enterprises, LLC, Shell Oil Company, Shell Oil Products Company LLC, Shell Trading (US) Company. (Attachments: #1 Exhibit Exhibits to Declaration of Julian Davies - Part 1, #2 Exhibit Exhibits to Declaration of Julian Davies - Part 2)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:08-cv-00312-SAS(Wallace, Richard)
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:
DECLARATION OF JULIAN
DAVIES, LSRP
New Jersey Departmellt of Ellvirollmelltal
Protectioll, et al. v. Atlalltic Richfield Co., et al.
No. 08 Civ. 312
JULIAN DAVIES, under penalty of perjury, declares as follows:
1.
I am a senior project manager and office manager with Sovereign Consulting Inc.
("Sovereign"), an environmental consulting firm, in Sovereign' s Parsippany, New Jersey office.
I am a Licensed Site Remediation Professional ("LSRP") in the State of New Jersey, having been
issued a license by the Site Remediation Professional Licensing Board, which was established by
the Site Remediation Reform Act ("SRRA") in 2009. I received a temporary license to act as an
LSRP (No. 508604) in 2009, and a final license from the Site Remediation Professional
Licensing Board (No. 574051) in July 2012. I was deposed in this matter by counsel for the
Plaintiffs on March 22, 2012.
2.
1 have been retained by Shell Oil Products US on behalf of Motiva Enterprises
LLC as the LSRP-of-Record at a service station located at 657 Franklin Turnpike in the Village
of Ridgewood, Bergen County, New Jersey (the "Ridgewood Site"). I have performed
environmental consulting services at that site since 1999, first with Envirotrac, and later with
Sovereign. I have been the LSRP-of-Record at the Ridgewood Site since 2010.
3.
The SRRA changed the way site remediations are conducted in New Jersey. Prior
to enactment of the SRRA, the New Jersey Department of Environmental Protection's Site
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Remediation Program ("SRP") provided oversight for the cleanup of contaminated sites, and
needed to approve work plans, progress reports, and remedial actions before they could be
implemented. With the passage of the SRRA, parties responsible for the cleanup of
contaminated sites are required to hire an LSRP, and the LSRP is responsible for oversight of the
investigation and remediation of the site, without direct supervision or prior approval of
NJDEP's SRP. LSRPs have the authority under the SRRA to conduct investigations, approve
remedial alternatives, and determine when remedial action is complete.
4.
As a document prepared by the NJDEP SRP in April 20 II puts it, "LSRPs will
'step into the shoes' of the Department of Environmental Protection (Department) to oversee the
remediation of contaminated sites in most instances." NJDEP SRP, Overview of the Licensed
Site Remediation Professional (LSRP) Program, April 2011 (attached as Exhibit 1 to this
Declaration). An LSRP is required to oversee the remediation of contaminated sites in
accordance with NJDEP ' s applicable standards, regulations and technical guidance for
responsible parties. LSRPs are subject to a strict code of conduct established by statute and
regulation and must ensure that remediations are protective of human health, safety and the
environment. The conduct of LSRPs is overseen by the Site Remediation Professional Licensing
Board.
5.
In performing my work as an LSRP, I am required to apply standards that are
specifically spelled out in the SRRA (C.58: IOC-14). Those standards include (a) health risk and
environmental standards established pursuant to section 35 of P .L.1993 , c.139 (C.58: IOB-12);
(b) remediation standards adopted by the department pursuant to section 35 ofP.L.1993 , c.139
(C.58:IOB-12); (c) maximum contaminant levels for building interiors adopted by the
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Department of Health and Senior Services pursuant to section I ofP.L.2007, c.1 (C.52:27D130.4) as applicable; and (d) any other applicable standards adopted pursuant to law.
I am also required to apply NJDEP regulations when performing my work,
6.
including (a) technical standards for site remediation adopted by NJDEP pursuant to P.L.1993,
c.139 (C.58:IOB-I et al.); (b) mandatory remediation timeframes and expedited site specific
timeframes adopted by NJDEP pursuant to section 28 ofP.L.2009, c.60 (C.58:IOC-28); and (c)
presumptive remedies adopted by NJDEP pursuant to section 35 ofP.L.1993, c.139 (C.58: 10B12). I am also required to apply any available and appropriate technical guidance concerning site
remediation issued by NJDEP. If no such standards or guidance exist, in my professional
judgment, I may make decisions based on (a) relevant guidance from the federal Environmental
Protection Agency or other states; and (b) other relevant, applicable, and appropriate methods
and practices that ensure the protection of the public health and safety, and of the environment.
7.
In addition, an LSRP is bound by the code of ethics contained in the SRRA at
C.58: I OC-16. Under that code, an LSRP's "highest priority in the performance of professional
services shall be the protection of public health and safety and the environment." Further, an
LSRP is required to "exercise reasonable care and diligence, and shall apply the knowledge and
skill ordinarily exercised by licensed site remediation professionals in good standing practicing
in the State at the time the services are performed." Likewise, an LSRP must "exercise
independent professional judgment, ... make a good faith and reasonable effort to identify and
obtain the relevant and material facts , data, reports and other information evidencing conditions
at a contaminated site for which he is responsible that is in possession of the owner of the
propelty,
01'
that is otherwise available, and identify and obtain whatever additional data and
other information as the licensed site remediation professional deems necessary. The licensed
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site remediation professional shall disclose and explain in any document submitted to the
department any facts, data, information, qualifications, or limitations known by the licensed site
remediation professional that are not supportive of the conclusions reached in the document."
8.
LSRPs are subject to professional discipline if they breach their duties under the
SRRA, and can have their licenses suspended or revoked by the Site Remediation Professional
Licensing Board.
9.
In my role as LSRP-of-Record at the Ridgewood Site, I have been responsible for
making professional judgments peltaining to the investigation and remediation of environmental
contamination at the site. In doing so, I have exercised independent professional judgment and
reasonable care and diligence, and have been mindful of the SRRA' s requirement that an LSRP' s
highest priority is the protection of public health and safety and the environment.
10.
At the time I began working on the Ridgewood Site in 1999, two active
remediation systems, a soil vapor extraction ("SVE") system and a groundwater pump and treat
system, were already in place. My understanding, based on review of documents, is that the
SVE system began operating in 1996, and that the groundwater pump and treat system began
operating in 1990.
11.
The SVE system, which was connected to 18 wells on and around the Ridgewood
Site, ceased operation in February 2009. Based on a review of the data from the system, the
SVE system had achieved its goal, because the influent concentrations had reached non-detect.
The NJDEP SRP approved the shutdown of the system in 2009. The system remained on the
site, but inactive, until 2012.
12.
The groundwater pump and treat system also ceased operation in 2009 due to
freezing weather conditions at the Ridgewood Site. The system was not restarted, because it had
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accomplished its objective of decreasing the concentrations of gasoline contaminants in
groundwater. The NJDEP SRP approved the shutdown of the system. The system remained on
the site, but inactive, until 2012.
13.
By letter dated September 12, 2012 (relevant portions of which are attached as
Exhibit 2 to this Declaration), in my role as LSRP-of-Record, I approved the permanent
shutdown and removal of the SVE and groundwater pump and treat equipment from the
Ridgewood Site. Neither system had been operated since 2009. Levels of contaminants detected
in groundwater monitoring wells on and around the Ridgewood Site did not show any significant
"rebound" as a result of the shutdown of the systems. Both the SVE and pump and treat systems
were removed from the Ridgewood Site in late 2012.
14.
Currently, the approved remedial strategy at the Ridgewood Site is monitored
natural attenuation ("MNA"). In the exercise of my professional judgment, I have determined
that MNA is the appropriate remedial strategy both on-site and off-site based on the data
obtained fi'om sampling the monitoring well network that exists at the Ridgewood Site.
15.
MNA was approved as the remedial action for off-site groundwater by the
NJDEP's SRP prior to the time I became LSRP-of-Record for the Ridgewood Site. By letter
dated March 28, 2006 (relevant portions of which are attached as Exhibit 3 to this Declaration),
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. The 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. NJDEP's SRP approved removing certain of the
wells at the Ridgewood Site from the sampling schedule because it determined that sampling
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them was no longer necessary. NJDEP's SRP did not require the installation of any additional
monitoring wells.
16.
By letter dated September 12, 2012 (relevant portions of which are attached as
Exhibit 2 to this Declaration), in my role as LSRP-of-Record, I approved monitored natural
attenuation as the remedial strategy for on-site groundwater at the Ridgewood Site. After
examining the historical sampling results from 30 on-site and off-site groundwater wells, I
determined that annual sampling of 18 groundwater wells should continue as part of the MN A
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. I did not determine, in my role as LSRP-of-Record, that installation
and/or sampling of any additional monitoring wells was necessary or appropriate.
17.
A total of approximately 50-60 monitoring wells are in place at the Ridgewood
Site. Based on a review of records, approximately 85 different wells have been in place at the
Site at one time or another, some of which are located as far as 1,200 feet from the station itself.
More than 2,000 groundwater samples from those wells have been collected and analyzed for up
to IS different chemical constituents 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 ofthe Ridgewood Site.
Not all of these wells are currently required to be sampled for the implementation of the MNA
remedy.
18.
In my 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
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..
professional services are performed, I have determined that no additional active remediation is
needed at Ridgewood and that the current program of monitored natural attenuation is
appropriate for purposes of protecting public health and safety and the environment, including
flora and fauna in the vicinity of the Ridgewood Site.
I declare under penalty of perjury that the foregoing is true and correct. Executed at
Parsippany, New Jersey, this 27 day of September, 2013.
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