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

Filing 4064

DECLARATION of Peter C. Condron in Support re: (333 in 1:04-cv-04968-SAS) MOTION for Summary Judgment based on Res Judicata.. Document filed by Atlantic Richfield Company, Inc., BP Products North America, Inc., BP West Coast LLC (Doe 3), Equilon Enterprises LLC,, Shell Oil Company, Inc., Texaco Refining and Marketing Inc.,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04968-SAS(Condron, Peter)

Exhibit A

KLESTADT & WINTERS, LLP
Tracy L. Klestadt
Sean C. Southard
Joseph C. Corneau
292 Madison Avenue, 17th Floor
New York, New York 10017
[phone]

Hearing Date: September 28, 2010
Hearing Time: 10:00 a.m.

STINSON MORRISON HECKER LLP
Lawrence P. Block
1150 18th Street N.W., Suite 800
Washington, D.C. 20036
[phone]
MILLER, AXLINE & SAWYER
Duane C. Miller
Michael D. Axline
Justin Massey
1050 Fulton Avenue, Suite 100
Sacramento, California 95825
[phone]
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re:
MARK IV INDUSTRIES, INC., et al.
Reorganized Debtors.

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Chapter 11
Case No. 09-12795(SMB)

RESPONSE OF THE ORANGE COUNTY WATER DISTRICT TO REORGANIZED
DEBTORS’ OBJECTION TO CLAIM NO. 1291
Orange County Water District (“OCWD” or the “District”), by its counsel, Klestadt &
Winters, LLP, Stinson Morrison Hecker LLP and Miller, Axline & Sawyer, as and for its
response to Reorganized Debtors’ Objection to Claim No. 1291 (the “Claim Objection”),
respectfully represent and allege as follows:

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burden to produce evidence that the District’s claim is invalid. For all of the above reasons,
Mark IV’s objections lack merit.
I.

Mark IV Is Liable For Its Ongoing Contamination.
1. Mark IV’s argument that it has “fully remediated any contamination that may be

attributable to the Mark IV sites” (Objection at 5) is simply incorrect. Mark IV relies for its
assertion on a simple “no further action” letter from the Santa Ana Regional Water Quality
Control Board for its “Prout” and “EDO” sites, attached as Exhibit D to the Declaration of Mark
Barbiero. A no further action letter from the Regional Board, however, does not mean the
contamination from the sites has been fully, or even partially, remediated.
2. As explained in In re Methyl Tertiary Butyl Ether (MTBE) Products Liability
Litigation [hereinafter In re MTBE], 2007 WL 700819 (S.D.N.Y. 2007), the Regional Board and
the Orange County Water District are distinct entities with different but related interests and
mandates. “Both the Regional Board and [Orange County Health Care Agency (OCHCA)] have
been active in remediation of MTBE at spill sites within OCWD’s service area, but neither
agency has undertaken MTBE remediation efforts beyond those spill sites.” Id. at *3. The
District is responsible for protecting sources of drinking water from contamination that, like
Mark IV’s, has migrated off-site. As noted in In re MTBE, supra, “OCWD is first and foremost
a state environmental agency that may well have the best knowledge of what efforts are most
likely to remediate MTBE plumes in its service area. Indeed, OCWD’s credentials are
impressive.” The Court concluded that, “[w]hile other agencies such as the Regional Board or
OCHCA may engage in spill-site remediation, they do not attempt remediation or containment of
MTBE plumes that may have escaped the spill site before remediation efforts began (or may
persist despite such efforts).” Id. at *6.

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to support apportionment. For all of the reasons set forth above, OCWD respectfully requests
that the Court overrule the Claim Objection.
Dated: New York, New York
August 31, 2010
KLESTADT & WINTERS, LLP

By: _/s/ Tracy L. Klestadt________
Tracy L. Klestadt
Sean C. Southard
Joseph C. Corneau
292 Madison Avenue, 17th Floor
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
-andSTINSON MORRISON HECKER LLP
Lawrence P. Block
1150 18th Street N.W., Suite 800
Washington, D.C. 20036
Telephone: [phone]
-andMILLER, AXLINE & SAWYER
Justin Massey
1050 Fulton Avenue, Suite 100
Sacramento, California 95825
Telephone: [phone]
Attorneys for the Orange County Water District

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