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)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NF.W YORK

Master File No. 1:00 —1898
MDL 1358

In Re: Methyl Tertiary Butyl Ether("MTBE")
Products Liability Litigation
(SAS): M21-88
This document relates to:
New Jersey Department of Environmental Protection v.
Getty Properties Corp., et aL, v. HP Delta, Robert
Me/ecci and Dhandi Transport, No. 08 Civ. 00312

Expert Report of: James A. Schaefer; Jr.
Date: April 2, 2013

KLE/NFELOER
Bright People. Right Solutions.
~_~

1754 Veterans Memorial Highway, Suite 24, Islandia, NY 11749
6208144-1

p ~ 631.218.0612

f ~ 631.218.0787

Signature Page
I, James A. Schaefer, Jr., have been retained as an expert consultant to prepare this Expert
Report by Rawle & Henderson, LLP, counsel for DefendantlThird-Party Plaintiff, Getty
Properties Corp. (GPC), in regard to the Third-Party claims asserted against Third-Party
Defendants HP Delta, Robert Melecci and Dhandi Transport in the matter of New Jersey
Department of Environmental Protection, et al, v. Getty Properties Cori, et al.
understand that I may be called to present expert testimony at trial and have been requested
to prepare this written report with respect to testimony. Compilation and evaluation of data and
mapping was performed by Kleinfelder staff. The opinions rendered herein, and which I am
prepared to testify to, relate to the specific circumstances of petroleum fuel (gasoline) releases
at the HP Delta retail petroleum station located in Colonia, Woodbridge, New Jersey.

Signed By:

Date:

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April 2, 2013

Opinion #2: The NJDEP inspector reported that impacted soils were removed down to
a clean clay layer located 3 feet below the bottom of the tanks. Based on this the
vertical extent of petroleum hydrocarbon contamination was determined to be 3 feet
below the bottom of the tanks which is approximately 15 feet below grade.
Opinion #3: The NJDEP inspector reported groundwater contamination did not occur
because the water table was not encountered. Due to the concrete tank pad and
surrounding paved parking lot the area in the vicinity of the USTs received no
groundwater recharge during rain events. The observed clay layer at 15 feet below
grade acted as a confining unit preventing petroleum hydrocarbons and MTBE from
migrating to groundwater.
July 8, 1987: Mr. Downs reported "The soil was being removed and staged on plastic on the

parking lot." Further he reported, "The clay layer was clean about i5 feet below the surface."
Opinion #4: The NJDEP inspector documented that the soil which was placed
back into the excavation for safety reasons was re-excavated down to a clean clay
layer at a depth of 15 feet below grade. This re-excavation confirmed the extent of
soil contamination was limited to 15 feet due to the presence of a confining
"clean" clay layer.
July 9, 1987.' Mr. Downs reported an estimated 400 cubic yards of soil was removed and

staged on plastic on the parking lot.
Handex Remediation Company (HRC) collected four soil samples from the excavated soil pile
on July 8, 1987 for waste characterization analyses. The analyses included waste disposal
specific parameters including Total Petroleum Hydrocarbons (TPH).

TPH concentrations

ranged from 142 to 5,218 mg/kg (Accutest, 1987).
Opinion #5: NJDEP regulations in 1987 required remedial action when TPH in soil
exceeded 1,000 parts per million. Three out of the four samples collected were
below this remedial action threshold. Based on this approximately 75% of the
excavated soil did not require removal and the amount of soil requiring remedial
action was limited in extent to less than 125 cubic yards.

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Once stockpiled, the soil pile was covered with plastic as a temporary measure to contain the
soil during precipitation events. In August 1987 NJDEP observed that the plastic had been
removed uncovering the contaminated soil resulting in issuance of a discharge violation. The
soil stockpile remained on Site for four months resulting in NJDEP administering a consent
order to GPC on December 15, 1987. GPC was ordered to submit all sampling results to the
NJDEP within five days, properly dispose of the contaminated soil within seven days, and
submit a receipt of the proper disposal to NJDEP within 14 days of received letter (NJDEP,
1987). The stockpiled soil was eventually removed off-Site. Based on provided Site documents,
NJDEP did not require further action regarding the removal of the USTs and subsequent
disposal of stockpiled soil.
Opinion #6: GPC properly removed the USTs to the satisfaction of NJDEP. NJDEP
required no further action because the petroleum hydrocarbon soil contamination
was over-excavated and disposed of off-Site and no groundwater impacts were
observed.
In 1988 the owner of the property, Robert Melecci installed a new gasoline UST dispensing
system at a new location on the Site not in the old tank field. This new gasoline UST dispensing
system is currently in operation at the Site today and consists of three fiberglass-clad steel
6,000-gallon gasoline storage tanks, one fiberglass-clad steel 4,000-gallon gasoline storage
tank, one fiberglass-clad steel 6,000-gallon diesel storage tank, and the associated steel
product piping. USTs and piping were not lined and are not equipped with secondary
containment (NJDEP, 1989). The locations of the new USTs are shown in the Site Plan in
Exhibit B, Figure 2.
The new UST tank field is much larger than the former requiring excavating approximately 25%
more soil to accommodate the new tanks. To protect the structural integrity of the adjacent
roadway and building, the excavation most likely required sheet piling to shore the sidewalis of
the excavation. Standard practice is to drive sheet piles down twice the depth of the planned
excavation. Based on the size of the new tanks the excavation was most likely between 13 and
15 feet deep and required sheet piles driven to 30 feet below grade. A comparison of the former
and new USTs follows:
Former USTs

New USTs

Cagacity Increase

Excavation Increase

3,000-gallon

4,000 gallon

1,000 gallons

10 cubic yards

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and early 2000's. Gasoline containing MTBE was stored in the new UST system and sold at the
Site during this time period.
Opinion #12: The investigation, testing, available Site related and public data and
analysis of same, indicate that MTBE detected at the off-Site wells were the result of the
2004-2006 hydrocarbon spills/release(s) at the HP Delta Service Station from the new
UST system (Exhibit D: Analytical Model Summary, Tables and Figures). One of the
causes of this hydrocarbon release appears to be reported overfilling or spills/release
during gasoline deliveries made by Dhandi Transport.
Gasoline discharges from the 1987 former UST system posed no damages to these
residential supply wells due to the following conditions:
• NJDEP inspected and identified the clay confining layer as "clean clay" indicating
the vertical extent of petroleum hydrocarbon contamination was limited to 15 feet
below grade at the Site and confined above the clay layer.
• NJDEP inspected and reported that groundwater was not impacted in 1987.
• Based on analytical model estimates the source of the MTBE detected in
residential supply wells dates back to a discharge between 1999 and 2006.
• Constituents detected in residential supply wells consisted of benzene and
MTBE. Benzene degrades readily in the subsurface. The degradation half-life of
benzene in glacial deposits is less than one year (e.g., concentration decreases
by 50°/a in one year). Based on this, over the span from 1987 to 2005 benzene in
groundwater would have degraded from its initial source concentration (solubility
concentration) to below NJDEP standards. Moreover, a same but slower
degradation process would have diminished MTBE concentrations over time to
below New Jersey standards.
4.0

DAMAGES ASSESSMENT

Damages associated with the former gasoline UST dispensing system were limited to
approximately 500 cubic yards of contaminated soil. This soil was transported and disposed offSite in 1987.

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