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

Filing 3902

DECLARATION of Susan M. Dean in Opposition re: (318 in 1:08-cv-00312-SAS) MOTION for Summary Judgment as to Getty Property Corp.'s Third-Party Complaint.. Document filed by Getty Properties Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:08-cv-00312-SAS(McMeekin, John)

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ION S. CORZINE

DEPARTMEI~tI' OF ENVIRONMENTAL PROTECTION
Lisa P. Jncxsorr

Governor

Cwnmissioner

Division ofRemediation Support
Office ofAccountability
401 East State Street, 5"'Floor West
P.O.Box 028
Trenton, New Jersey 08625
[phone] Fax:[phone]

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DIRECTIVE ANll NOTICE TO INSURERS
EA ID #: PEA060002 - 001463
Site Name: H.P. DELTA,INC. SITE
Respondents: ROBERT MELECCI, ROB'S SERVICE CENTER, AND H.P. DELTA,
1NC.
Location:
439 LAKE AVE
WOODBRIDGE TWP,NEW JERSEY
Identifying #: 001463
UST Case # 04-12-07-1319-21
This Directive and Notice to Insurers is issued pursuant to the authority vested in the
Commissioner of the New Jersey Department of Environmental Protection (hereinafter
"the Department" or "NJDEP") by N.J.S.A. 13:1D-1 et seq. and the Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 et seq., and duly delegated to the Assistant
Director of the Oversight Resources Allocation Element within the Division of
Remediation Support pursuant to N.J.S.A. 13:1B-4. This Directive and Notice to
Insurers is issued in order to notify the above-captioned Respondents that the
Department,. pursuant to the Spill Compensation andControl Act, has determined that it
is necessary to cleanup and remove discharges, ~.nd in order to notify the Respondents
that the Department believes them to be responsible for the discharges.
FINDINGS
1. The H.P. Delta, Inc. site, is located at 439 Lake Ave and is also known as Block 506B,
Lot 3, on the Tax maps ofthe Township of Woodbridge, Middlesex County
(hereinafter "the Site"). The Site, and all other areas to which any hazardous
substances discharged on the Site have migrated are collectively referenced hereinafter
as "the Contaminated Site".
2. H.P. Delta, Inc., whose primary business address is 439 Lake Avenue, Colonic, New
Jersey,07067,currently operates at the Site, and has done so since at least 2003.

New Jersey /s An Egua1 Opporlunily Employer • Prirrled on Recycled Paper
and Recyclable

ROBERT MELECCI,ROBS _ ~RVICE CTR, AND HP DELTA INC
PEA060002 - 001463
2
3. Robert Melecci whose primary address is 439 Lake Avenue, Colonic, New Jersey,
07067,has owned the property at the Site from February 2, 1983 to present.
4. Rob's Service Center, whose primary business address is 439 Lake Avenue, Colonic,
New Jersey, 07067, currenfly owns the underground storage tanks at the Site, and has
done so since at least 2003.
5. On May 11, 2005 a potable well in the vicinity of the Site was sampled. The results
of analysis revealed that the well water exceeded the Safe Drinking Water Standards
for Methyl Tertiary Butyl Ether (MTBE). Over 40 additional potable wells in the
azea have since been sampled. Of these wells sampled, several potable wells- had
exceedances of MTBE and/or benzene.
6. On August 5, 2006, a compliance inspection of the underground storage tank (LIST)
system located at the Site was conducted. The inspection has revealed gross soil
contamination and floating product in each observation well at the site, among other
violations.
7. The Department has determined that it is necessary for the Respondents to conduct
Departmentally approved investigative and remedial activities at the Contaminated
Site in order to fully determine the nature and extent ofthe problem presented by the
discharges. Upon completion of the remedial investigation, it will be necessary to
implement a remedial action to address the discharges at the Site.
8. 1 substances referenced in the pazagraphs above are hazardous substances pursuant
he
to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 lb.
9. Respondents are responsible for the discharges of hazardous substances at the Site
which were discharged to the lands and waters ofthe State.
10. Pursuant to N.J.S.A. 58:10-23.1 lg.c., Respondents are strictly liable, jointly and
severally, without regard to fault, for all cleanup and removal costs.
11. Pursuant to N.J.S.A. 58:10-23.1 lf., whenever any hazardous substance is dischazged,
the Department may, in its discretion, act to clean up and remove or arrange for the
cleanup and removal of such discharge, or may direct any person in any way
responsible for the hazardous substance to clean up and remove, or arrange for the
cleanup and removal ofthe discharge.
DIRECTIVE
12. The Department hereby directs Robert Melecci, Rob's Service Center, and H.P.
Delta, Inc, to take the following corrective actions:

ROBERT MELECCI,ROBS s~RVICE CTR, AND HP DELTA INC
PEA060002 - OOi463

A.

A receptor evaluation shall be conducted in accordance with

N.J.A.C. 7:26E-3.7(e)3i and 4.4(h)3v through ix. The receptor evaluation shall be
initiated immediately by conducting the following:
i. A well search shall be conducted in accordance with the format
specified by N.J.A.C. 7:26E-Appendix B of all wells located within one (1) mile
of the site. All wells identified within the 1 mile radius shall be cross-referenced
to and accurately plotted on a scaled map (scale shall be greater than or equal to
1:24,000) in relation to the facility. The results of the well search shall be
submitted within ten (10)days of receipt of this notice.
ii. A canvass of the azea shall be conducted within a 1000 foot
radius of the service station site and within 1000 feet downgradient of the known
contaminated potable well that is located the farthest away from the Site, which
currently is located at 164 Jordan Road. The locations of all wells identifed by
the canvass shall be plotted on a reduction of a topographic or geoquadrangle map
and tax map. The results of the well canvass shall be submitted to the
Department within ten(10)days of receipt of this directive.
iii. All wells shall be sampled, except monitoring wells identified
in the well canvass, within three (3) days of identification of such wells as a
receptor. The samples shall be analyzed for volatile organic compounds using
EPA Method 524.2 Version 4.1 with a forward library search (include targeted
analysis for Tertiary Butyl Alcohol(TBA) using EPA Method 524.2 Version 4.1
with the proper detector). Please note, the Method Detection Limits(NIDL) must
not exceed the Safe Drinking Water Maximum Contaminant Levels for each
analyte. If sample dilution is necessary, all analysis prior to dilution must be
reported. Well analytical results shall be forwarded to the Department within
thirty(30)days of sample collection.
iv. For any residents businesses where- information cannot be
produced from the canvass, the Respondents shall immediately contact the local
water purveyor as well as the Department ofPublic Works Department that serves
the community of Colonia/Woodbridge to determine the status of the water
supply for said residents businesses.
v. For any potable well identified as contaminated with gasoline
related compounds that exceed the Safe Drinking Water Maximum Contaminant
Levels, bottled water shall be provided to the resident within 24 hours of
receipt of the analytical results. Within seven (7) days of receipt of the
analytical results, the impacted residence shall be connected to the public
water supply. If no water supply main exists, Point of Entry Treatment(POET)
shall be placed on the wells) to ensure potability of the water supply and regulaz
maintenance ofthe POET shall be initiated.

ROBERT MELECCI,ROBS Sr,RVICE CTR, AND HP DELTA INC
PEA060002 - 0014b3
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B. Sepazate phase hydrocarbons identified on the ground water shall be
immediately removed using pumping, vapor or vacuum extraction techniques on
the observation wells at the Site.
C. A remedial investigation of the mound water contamination shall be
completed in accordance with N.J.A.C. 7:26E-4.4, and results shall be submitted
in the form of a Remedial Investigation Report within ninety (9d) days. As part
of this investigation, Respondents shall establish the ground water flow direction
and delineate'the horizontal and vertical extent of the ground water contaminant
plume by installing monitoring wells at the Site (the source) as well as
downgradient of the Site. A Remedial Action Workplan (RAVE proposal to
remediate the ground water contamination shall be submitted. On site well
installations are required within seven ('~ days of receipt of this notice.
Access requests for off
-site locations are requited to be initiated immediately and
the Department shall be copied on all letters sent regarding access requests.
D.
A Remedial Investigation of the soil contamination on site shall be
completed in accordance with N.J.A.C. 7:26E, and results shall be submitted in
the form of a Remedial Investigation Report within ninety(90) days. Delineation
shall begin at the current Underground Storage Tank system and continue
horizontally and vertically until the full extent of the soil contannination is
determined. The identified soil contamination shall be remediated. If the soil
contamination will be removed by physical means, the soil shall be stockpiled on
plastic and the contaminated soil will be properly disposed at a facility permitted
to receive such soil immediately thereafter. If the soil is excavated, post
excavation soil sampling shall be conducted in accordance with N.J.A.C. 7:26E6.4. If in-situ treatrnent will be utilized, a Remedial Action Work Plan (RAV►~
proposal to remediate the soil contamination shall be submitted. The Remedial
Action Work Plan shall include post remediation soil sannpling.
E.
An inspection of the tank system shall be conducted, and repairs
shall be made to any portion of the tank system that is leaking, fails the tank
inspection tests and/or is not properly functioning.
F.
A vapor intrusion investigation of surrounding structures shall be
performed which begins at the Site and progresses from there, in accordance with
the requirements outlined in the Deparhnent's October 2005 "Vapor Intrusion
Guidance Document".
G.
The initial results of the remedial investigation of soil and ground
water as well as the vapor inhusion investigation shall be submitted within 30
(thirty) days of receipt of this notice.
13. Respondents must reply to the Department pursuant to N.J.A.C. 7:26C-4.2(g),
regarding its decision to comply with this Directive and Notice to Insurers,
within three (3) calendar days after Respondents' receipt of this Directive and

ROBERT MELECCI,ROBS, ..tVICE CTR,AND HP DELTA INC
PEA060002 - 001463
5
Notice to Insurers.
NOTICE

14. The Department has determined, pursuant to N.J.A.C. 7:26C-4.2 (e), that in order to
ensure that Respondents perform the remediation required by this Directive and
Notice to Insurers in a timely fashion and pursuant to the Technical Requirements for
Site Remediation N.J.A.C. 7:26E, Respondents must memorialize their commitment
to perform the remediation in an Adminishative Consent Order pursuant to N.J.A.C.
7:26C.
15. If Respondents fail to enter into an Administrative Consent Order within thirty (30)
calendar days after Respondents' receipt of this Directive and Notice to Insurers, the
Department may, at its discretion, conduct the remediation using public funds.
16. Failure to comply with this Directive and Notice to Insurers will increase
Respondents' potential liability to the Bepar~nent in an amount equal to three (3)
times the cost of arranging for the cleanup and removal of the discharge and may
cause a lien to be placed on Respondents' real and personal property pursuant to the
Spill Compensation and Con~ol Act, N.J.S.A. 58:10-23.11f., including a first priority
lien on the property subject ofthe discharge.
1?. D~:~suant t~ N.J.S.A. 58:1 -23.1iu., use ~e~iarirr~e~it may issue an order to require
CGiiiyiiaiiCc wiu~i ~e Spiit Compensation and Control Pict.
railure by the
Respondents to comply with this Directive may result in the issuance of an order by
the Departrnent, which will subject each Respondent to penalties of up to $50,000 per
day and each day of violation constitutes an additional, sepazate and distinct violation
of the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et sec.
RESERVATION OF RIGHTS

18. The Department reserves the right to direct the Respondents to take or arrange for the
taking of any and all additional remediation which the Departrnent deternunes to be
necessary to protect the public health and safety or the environment and to seek full
reimbursement and treble damages for all costs incurred in taking such additional
remediation.
19. Respondents are advised that the discharges referenced in this Directive and Notice to
Insurers may also constitute violations of the Water Pollution Control Act, N.J.S.A.
58:10A-1 et se4•, and the Solid Waste Management Act, N.J.S.A. 13:1E-1 et sect•, and
that Respondents may, therefore, be subject to the penalties prescribed for violations
of these Acts. The Department reserves all rights and remedies under those Acts as
well as any other rights and remedies under any applicable law.

' ~
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ROBERT MELECCI,ROBS SERVICE CTR,AND HP DELTA INC
PEA060002 - 001463
6

NOTICE TO INSURERS

20. BE ON NOTICE THAT, pursuant to N.J.S.A. 58:10-23.1 ls., any claims for costs of
cleanup or civil penalties by the State and any claim for damages by any injured
person, may be brought directly against the bond; insurer or any other person
providing evidence of financial responsibility. Respondents are therefore urged to
contact such insurers and notify them of the issuance of this Directive and Notice to
Insurers.

Date:

iS ~4 4~
Ronald T. Corcory, Assistant Direc or
Oversight Resources Allocation Element

C.

Kevin Kratina, BUST
Bill Hose, BUST
Judy Bayazd,BUST
Rocky Richards, OWR
Akshay Parikh, OWR