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

Filing 4305

AMENDED ANSWER to. Document filed by Chevron Caribbean Inc., Chevron Corporation, Chevron Estrella Puerto Rico, Inc., Chevron International Oil Company, Inc., Chevron Puerto Rico, LLC, Chevron U S A Inc, Four Star Oil and Gas Company, Kewanee Industries, Inc., TRMI-H LLC, Texaco Inc, Union Oil Company of California, Unocal Corporation. (Anderson, Jeremiah)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW
YORK

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

Master File No. 1:00 – 1898
MDL 1358 (SAS)

This document refers to:
All Cases in MDL 1358 in which the Chevron
Defendants have been properly named and served,
and for which an answer is due.

THE CHEVRON DEFENDANTS’ THIRTEENTH
AMENDED MASTER
ANSWER AND AFFIRMATIVE DEFENSES
Pursuant to the Master Answer agreement among the parties and CMO #6, defendants
Chevron U.S.A. Inc. (including its divisions Chevron Products Company and ChevronTexaco
Global Trading), Chevron Corporation (f/k/a ChevronTexaco Corporation), Texaco Inc., TRMIH LLC (f/k/a TRMI Holdings Inc., f/k/a Texaco Refining and Marketing Inc.), Kewanee
Industries, Inc., Unocal Corporation, Union Oil Company of California, Chevron Puerto Rico,
LLC (f/k/a Texaco Puerto Rico Inc., n/k/a PC Puerto Rico LLC), Chevron Estrella Puerto Rico
Inc. (f/k/a Texaco Estrella Puerto Rico Inc.), Chevron International Oil Company, Inc.,
Chevron Caribbean Inc., Texaco International Trader Inc. and Four Star Oil and Gas Company
(collectively, “the Chevron Defendants”) answer the complaints in the MDL 1358 cases for
which an answer is due, and in which they have been properly named and served, as follows:
I.
A.

STATEMENTS REGARDING SELECT ALLEGATIONS
Basic Defendant Information
Defendant

Chevron

U.S.A.

Inc.

(f/k/a

Gulf

Oil

Corporation)

is

a

Pennsylvania corporation headquartered in San Ramon, California. Chevron U.S.A. Inc. (d/b/a

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Chevron Products Company, d/b/a Chevron Chemical Company) is the only Chevron Defendant
that currently refines, distributes, markets or sells gasoline products in the United States.
Chevron U.S.A. Inc. notes, however, that it sold substantially all of its Chevron and legacy Gulf
retail outlets and other marketing assets in the Northeast region of the United States in 1986 and
it has not been involved at all in the retail market in that region of the country since 2010, if not
earlier. Chevron U.S.A. Inc. sold its refinery in Philadelphia, Pennsylvania in 1994.
Defendant Chevron Corporation (f/k/a ChevronTexaco Corporation)1 is a Delaware
corporation headquartered in San Ramon, California.

Chevron Corporation did not refine,

market, distribute or sell gasoline or neat MTBE in the United States, or Puerto Rico, at any time
during the time period relevant to this litigation. Chevron Corporation does not conduct business
in, or otherwise have any of the requisite contacts with, the Commonwealth of Puerto Rico or the
States of Illinois, Indiana, Iowa, Missouri, Massachusetts, Pennsylvania, New Jersey, New York
or Vermont. Consequently, the Court lacks personal jurisdiction over Chevron Corporation with
regard to any MDL 1358 cases filed in these jurisdictions. Nothing herein shall be deemed a
waiver or relinquishment of Chevron Corporation’s personal jurisdiction defense in such cases.
Four Star Oil & Gas Company (“Four Star”) is a Delaware Corporation having offices in
San Ramon, California.
Defendant Texaco Inc. is a Delaware corporation having offices in San Ramon,
California. Texaco Inc. no longer engages in active operations in the United States. In or about
December 1984, Texaco Inc. transferred substantially all of its domestic gasoline refining and
marketing assets to an independent subsidiary then known as Texaco Refining and Marketing
Inc. (n/k/a TRMI-H LLC). Texaco Inc. has not refined or marketed gasoline in the United States

1

 From October 2001 until May 2005, Chevron Corporation was known as ChevronTexaco Corporation. 

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at any time since December 1984.
Defendant TRMI-H LLC (f/k/a TRMI Holdings Inc., f/k/a Texaco Refining and
Marketing Inc.) is a Delaware corporation having offices in San Ramon, California. TRMI-H
LLC no longer engages in active operations in the United States. Prior to 1985, TRMI-H
LLC was known as Getty Refining and Marketing Company and refined and marketed Gettybranded gasoline in certain areas of the United States. From approximately January 1985 until
December 1988, TRMI-H LLC was known as Texaco Refining and Marketing Inc. and refined
and marketed Texaco-branded gasoline in certain areas of the United States.

In or about

December 1988, Texaco Refining and Marketing Inc. (n/k/a TRMI-H LLC) exited the U.S.
gasoline market when it transferred all of its operating assets to Star Enterprise and an entity now
known as TMR Company.

At that time, Texaco Refining and Marketing Inc.’s name was

changed to TRMI Holding Inc.
Defendant Kewanee Industries, Inc. is a Delaware corporation having offices in San
Ramon, California. Kewanee Industries, Inc. did not refine, market or distribute gasoline (with
or without MTBE) in the United States during the relevant time period for this case.
Defendant Unocal Corporation (“Unocal”) is a Delaware corporation having offices in
San Ramon, California. Unocal is a holding company that no longer engages in active
operations in the United States. Unocal did not refine, market or distribute gasoline (with or
without MTBE) in the United States during the relevant time period for these cases.
Unocal’s former operating subsidiary, defendant Union Oil Company of California
(“Union Oil”), is a California corporation headquartered in San Ramon, California. Union Oil
no longer engages in active operations in the United States. Union Oil refined, manufactured
and/or distributed gasoline containing MTBE in certain areas of the United States from

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approximately 1986 until 1997, when Union Oil exited the U.S. gasoline market. At various
times prior to 1997, Union Oil operated refineries in the following locations: Wilmington, CA;
San Francisco, CA; Beaumont, Texas; Lemont, Illinois; and Health, Ohio. Union Oil began
blending MTBE into gasoline at its California refineries in approximately 1986. Union Oil did
not blend MTBE into gasoline at its Illinois or Ohio refineries. Upon information and belief,
Union Oil may have blended MTBE into certain gasoline produced at its former Beaumont
Refinery in approximately 1988, shortly before that refinery was closed in 1989. On March
31, 1997, Union Oil sold all of its refining, marketing and distribution assets to Tosco
Corporation and exited the U.S. gasoline market.
The following Chevron and Texaco entities not identified above are named as defendants
in 07-CV-10470: Chevron Puerto Rico, LLC (f/k/a Texaco Puerto Rico Inc., n/k/a PC Puerto
Rico LLC), Chevron Estrella Puerto Rico Inc. (f/k/a Texaco Estrella Puerto Rico Inc.), Chevron
International Oil Company, Inc., and Chevron Caribbean Inc. These defendants are also named
in 14-CV-1014, as well as the following Chevron and Texaco entities or divisions not identified
above: ChevronTexaco Global Trading and Texaco International Trader Inc. (collectively the
“Chevron Puerto Rico Defendants”). Chevron Estrella Puerto Rico, Inc. (f/k/a Texaco Estrella
Puerto Rico, Inc.), Chevron International Oil Company Inc. and Chevron Caribbean Inc. never
marketed or distributed gasoline or MTBE in the Commonwealth of Puerto Rico. Chevron
Estrella Puerto Rico, Inc. was a Delaware corporation and was properly dissolved under
Delaware law on April 9, 2008. ChevronTexaco Global Trading was division of Chevron
U.S.A. Inc. and never issued stock. Chevron Texaco Global Trading ceased to exist on June
30, 2004. Texaco International Trader Inc. was a Delaware corporation and was properly
dissolved under Delaware law on July 21, 2002. Chevron Puerto Rico, LLC (f/k/a Texaco

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Puerto Rico Inc.) marketed gasoline in the Commonwealth of Puerto Rico until July 31, 2012.
The Chevron Puerto Rico Defendants, along with Chevron Corporation and Chevron U.S.A. Inc.,
deny any liability for the alleged damages, costs and other relief sought by Plaintiffs.
B.

Allegations Regarding Production of MTBE or TBA
Defendant Chevron U.S.A. Inc. (d/b/a Chevron Products Company) manufactured and

blended MTBE for a period of time at its refineries in the following locations: El Segundo, CA;
Richmond, CA; Pascagoula, MS; Philadelphia, PA; and Port Arthur, TX. Chevron U.S.A. Inc.
no longer manufactures or blends MTBE at any of its refineries in the United States.
Chevron U.S.A. Inc. has never manufactured or blended MTBE at any refinery in the
Commonwealth of Puerto Rico.
Defendant Chevron Corporation (f/k/a ChevronTexaco Corporation) has never
manufactured or blended gasoline containing MTBE or neat MTBE in the United States or the
Commonwealth of Puerto Rico. Chevron Corporation exited the U.S. gasoline market in or
about 1977, when it domestic operating assets were transferred to Chevron U.S.A. Inc.
Defendant Four Star Oil and Gas Company did not refine, manufacture, distribute or sell
gasoline containing MTBE, or neat MTBE, in the United States during the relevant time period
for these cases.
Defendant Texaco Inc. has never manufactured MTBE in the United States or the
Commonwealth of Puerto Rico. In the past, two former subsidiaries of Texaco Inc., Texaco
Chemical Company (n/k/a Huntsman Chemical) and Texaco Chemical Inc., manufactured
MTBE at facilities located in Port Neches, Texas. Those facilities were sold to Huntsman
Specialty Chemicals Corporation or related entities in 1994 and 1997, respectively. For a
period of time prior to 1985, Texaco Inc. blended MTBE into some, but not all, premium grade

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gasoline products at its former refinery located in Port Arthur, TX.
Defendant TRMI-H LLC (f/k/a TRMI Holdings Inc., f/k/a Texaco Refining and
Marketing Inc.) has never manufactured neat MTBE in the United States or the Commonwealth
of Puerto Rico. For a period of time between 1985 and 1989, TRMI-H LLC (then known as
Texaco Refining and Marketing Inc.) blended MTBE into certain gasoline products at its former
refineries located in Port Arthur, TX and/or Convent, LA. In or about January 1989, the Port
Arthur, TX and Convent, LA refineries were sold to Star Enterprise.
Defendant Kewanee Industries, Inc. did not refine, manufacture, distribute or sell
gasoline containing MTBE, or neat MTBE, in the United States during the relevant time period
for these cases.
Defendants Unocal and Union Oil never manufactured or sold neat MTBE in the United
States. As noted above, Union Oil produced gasoline containing MTBE at its two former
California refineries for a period of time prior to its divestiture of all refining and marketing
assets to Tosco Corporation in 1997. Union Oil also may have produced gasoline containing
MTBE at its former Beaumont, TX refinery for a short period of time in 1988 shortly before that
refinery was closed in 1989.
The Chevron Puerto Rico Defendants have never produced or sold neat MTBE in the
Commonwealth of Puerto Rico.
C.

Allegations Regarding Properties and Behavior of MTBE
The Chevron Defendants admit that MTBE is an aliphatic ether that does not occur

naturally. The Chevron Defendants admit that there are various methods for the production of
MTBE and that one method of production is from methanol and isobutylene.
The Chevron Defendants state that solubility and mobility are relative properties and that
while MTBE and other ethers may be more soluble and mobile in water than certain gasoline
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components, such as the BTEX compounds, they are less soluble and mobile in water than other
components sometimes blended into gasoline, such as ethanol. The Chevron Defendants further
state that MTBE’s behavior in the environment -- and its behavior relative to other gasoline
constituents -- is dependent on a variety of factors, including the nature or method of its release,
the geological setting, and environmental and microbial factors.
The Chevron Defendants state that while under certain conditions MTBE may biodegrade
less readily than some other components of gasoline, MTBE has been found to naturally
attenuate and biodegrade in numerous ways.
D.

Allegations Regarding Properties and Behavior of TBA
The Chevron Defendants admit that TBA is the product of the hydrolysis of isobutylene.

The Chevron Defendants admit that TBA can be an intermediate product of MTBE
biodegradation.
The Chevron Defendants state that solubility and mobility are relative properties and that
TBA is more soluble and mobile in water than certain gasoline components, such as the BTEX
compounds. The Chevron Defendants further state that TBA’s behavior in the environment -and its behavior relative to other components of gasoline -- is dependent on a variety of factors,
including the nature or method of its release, the geological setting, and environmental and
microbial factors.
E.

Allegations Regarding Taste and Odor
The Chevron Defendants admit that individuals vary in their ability to detect the taste and

odor of MTBE in water.

The Chevron Defendants state that responsible federal and state

regulatory agencies have considered and adopted standards fully protective of MTBE taste and
odor concerns.
F.

Allegations Regarding Health Effects of MTBE
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Plaintiffs’ allegations of dire human health concerns from MTBE are unsubstantiated.
MTBE has been studied publicly by scientists and government agencies for more than 20 years.
MTBE has never been reliably linked to cancer, and there is no consensus in the scientific field
that it is carcinogenic; indeed, major world health organizations have long refused to list MTBE
as a human carcinogen.

The Chevron Defendants state that responsible federal and state

regulatory agencies have considered and adopted standards fully protective of any alleged
health concerns related to MTBE.
G.

Allegations Regarding Storage and Handling of Gasoline
The Chevron Defendants admit that it is commonly known that gasoline is sometimes

released into the environment from USTs and other means, and state that, according to reports,
major oil companies have spent hundreds of millions of dollars or more over the past 30 years to
eliminate or reduce leaks, and to improve leak detection. The Chevron Defendants state that
they are aware that most adults understand that gasoline should be handled carefully and should
not be spilled.
H.

Allegations Regarding Knowledge of MTBE Contamination at Particular
Locations In 1980s
The complaints purport to describe various publicly reported incidents of MTBE

contamination in New Jersey, New York and Maine in the 1980s. The Chevron Defendants state
that it was widely known among government regulators in the 1980s that various incidents
involving MTBE contamination – including the ones plaintiffs’ complaints regularly list – had
occurred.
The Chevron Defendants admit that the 1986 Garrett and Moreau paper described MTBE
presence in certain wells in Maine. The Chevron Defendants admit that information about
MTBE was known to government and the scientific community, as the 1986 Garrett and Moreau
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paper illustrates.
I.

Allegations Regarding Participation In Industry Associations or Lobbying
Activities
The chemical properties of ethers like MTBE have been known in the public arena for

many years. Plaintiffs’ claim that Defendants somehow hid this information from them, or from
federal or state regulators, is baseless.

The Chevron Defendants deny that they had any

agreement with another defendant to withhold from plaintiffs or government regulators
information concerning MTBE.
The Chevron Defendants state that prior to 1990, Congress was preparing to take action
to address the Nation’s smog problem. The Chevron Defendants admit that federal government
agencies were aware of MTBE’s chemical characteristics in 1986 or earlier, and that EPA held
public meetings about MTBE in 1986. Like the federal government, one or more of the Chevron
Defendants were aware of the Garrett and Moreau paper in or about 1986.
The Chevron Defendants admit that one or more employees of certain Chevron
Defendants may have participated in an American Petroleum Institute (“API”) committee called
the Toxicology Committee. The Chevron Defendants admit that a Testing Consent Order was
entered with EPA in or about 1988 by various major oil companies.
In response to plaintiffs’ allegation that Congress adopted the Reformulated Gasoline
(RFG) Program as part of the 1990 Amendments to the Clean Air Act “[a]s a result of
tremendous lobbying efforts by the industry, including Defendants,” the Chevron Defendants
state that many major oil companies in fact actively resisted the RFG Program’s requirement of
oxygen content levels.
J.

Allegations Regarding Requirements and Effects of the 1990 Clean Air
Act Amendments
The Chevron Defendants state that although the 1990 Clean Air Act Amendments
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(“CAAA”) did not literally require use of MTBE as a gasoline additive, in practical terms the
CAAA certainly did compel MTBE’s use.

EPA and Congress knew that the oxygen

requirements of the Act could not and would not be met without MTBE.

The Chevron

Defendants state that beginning in the late 1970s, following the U.S. EPA’s mandate to reduce
lead in gasoline, most U.S. refiners began evaluating oxygenates and octane enhancers such as
ethanol and MTBE. In 1990, with the amendments to the Clean Air Act, the federal government
mandated an increase in the use of oxygenates (up to 2.7% oxygen content) to meet ambient
carbon monoxide air requirements in winter gasoline in many cities (beginning in 1992). In
1995, various oxygenates were extended by regulation to year-round use for severe, nonattainment ozone areas in the United States.

Reformulated gasolines used since that time

have sometimes contained between 10% and 15% MTBE by volume, or up to 10% ethanol, to
meet government mandates on oxygenate content.
The Chevron Defendants deny that ethanol was available in sufficient supply to fully
meet the demand for oxygenated gasoline in the RFG and oxyfuel regions when the
Amendments requiring 2% oxygen content in year-round gasoline in areas using RFG became
effective.
The Chevron Defendants state that they complied with the legal requirements of the lead
phase-out, the RFG Program and the Oxygenated Fuel Program, to the extent applicable to their
activities.

The Chevron Defendants further state that several government agencies have

concluded that the use of MTBE in gasoline has contributed substantially to reducing air
pollution.
K.

Allegations Regarding MTBE-Related Actions Taken By State or
Federal Governmental Bodies
The Chevron Defendants state that in 2000, EPA provided advance notice of its intent to

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initiate a rulemaking pursuant to the Toxic Substances Control Act (“TSCA”) to eliminate or
limit the use of MTBE as a fuel additive. No such rulemaking was ever initiated. The Chevron
Defendants state that certain proposed legislation in the U.S. Congress may limit the use of
MTBE in gasoline in the future. The Chevron Defendants state that certain state legislatures or
regulatory bodies have passed laws or adopted regulations to limit or eliminate the use of MTBE
in gasoline. The details of such laws are a matter of public record.
L.

Allegations Regarding Plaintiffs’ Claimed Inability To Identify Relevant
Sources of Gasoline Leaks Or Spills Affecting a Given Site
Gasoline leaks, whether containing MTBE or not, are frequently traceable to a specific

“point source,” limited to the immediate geographic area of the source, and remediable. The
Chevron Defendants deny that gasoline can never be traced from a contamination site to its
terminal or refinery source.
M.

Allegations Purporting To Quote Or Summarize Documents
Numerous paragraphs in each complaint purport to quote from or summarize documents,

statutes and regulations. These written materials speak for themselves. The documents, statutes
and regulations referenced by plaintiffs, which are not attached to the complaints, are the best
evidence of their content, and the Chevron Defendants therefore deny plaintiffs’ attempts to
summarize or characterize the contents of these written materials.
N.

Allegations Regarding Defendants Unrelated To The Chevron Defendants
The Chevron Defendants are without knowledge or information sufficient to form a belief

as to the truth of the matters averred in the complaints regarding the specific statements, acts or
omissions of defendants unrelated to the Chevron Defendants.
O.

Allegations Regarding Particular Claims or Counts
In response to the portions of the complaints purporting to state particular common law or

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statutory claims, the Chevron Defendants incorporate each paragraph of this Master Answer as if
fully restated herein. The Chevron Defendants deny they are liable for any legal claim in any
MDL 1358 complaint.
P.

Allegations Regarding Claimed Injuries or Damages
Some complaints make claims about contamination of specific wells or water resources,

and others do not. The Chevron Defendants are without knowledge or information sufficient to
form a belief as to the truth of the matters averred in the complaints regarding specific incidents
of alleged contamination. The Chevron Defendants believe publicly available documents and
discovery to be supplied by plaintiffs will demonstrate that many of the wells or water resources
at issue have not been impacted by MTBE, or have been impacted only at levels well below state
action standards for MTBE.
With regard to alleged damages, the allegations require no further answer. To the extent
that further answer is deemed necessary, the Chevron Defendants admit that plaintiffs seek the
relief mentioned in the complaints, but deny that plaintiffs are entitled to any relief.
Q.

Plaintiffs’ Demands for Jury Trials
Plaintiffs in all actions have demanded a trial by jury of all claims asserted in the

complaints.

These jury demands require no answer.

To the extent any answer is deemed

necessary, the Chevron Defendants admit that the plaintiffs demand jury trials, but deny that they
are entitled to them on some or all of their claims.
R.

Plaintiffs’ Allegations of Intentional, Willful, Deliberate, or Negligent Acts
The Chevron Defendants deny that they intentionally, willfully, deliberately, or

negligently committed any acts that caused or foreseeably could have caused harm to plaintiffs
or any other party.

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S.

Plaintiffs’ Allegations of Representational Standing
Certain California plaintiffs have alleged a right to bring an action in a representative

capacity. By orders dated June 9 and 22, 2005, the Court either struck all such allegations or
confirmed that such allegations have been disavowed by the plaintiff. On the basis of these
Court orders, the Chevron Defendants decline to answer these allegations. To the extent any
answer is deemed necessary, the Chevron Defendants deny that any plaintiff has standing to
bring claims in a representative capacity.
T.

Certain Plaintiffs’ Allegations of Ownership of Groundwater Resources
To the extent that plaintiffs allege that they own or have the authority to protect

groundwater, groundwater resources, water resources, water supplies, water rights, or drinking
water wells, or any other right in and to water or groundwater, the Chevron Defendants
deny these allegations and deny that these plaintiffs have standing to bring any claim based on
allegations of property damage on behalf of themselves or any other person or entity.
U.

Regulatory Powers of Other Agencies
Certain California plaintiffs allege that they are entitled to assert claims to protect

groundwater resources or the environment without regard to any impact on water supply wells
owned or operated by them. The Chevron Defendants deny that these plaintiffs possess any such
right. The Chevron Defendants further allege that, pursuant to statutes duly enacted by the
California legislature, state agencies that are not parties to these lawsuits have been delegated the
power and authority to (1) determine what maximum levels of contaminants, including MTBE
and/or TBA, are permissible in potable water distributed in California and (2) manage activities
to investigate, delineate, remediate and cleanup actual or suspected MTBE and/or TBA
contamination, including determining when sufficient cleanup has been achieved.

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V.

California Civil Code Section 1882 Claims
Certain California plaintiffs have alleged causes of action and/or prayers for treble

damages and attorneys’ fees based on California Civil Code § 1882 et seq. By order dated May
31, 2005, the Court dismissed and struck these allegations from the complaints. On the basis of
the Court order, the Chevron Defendants decline to answer these allegations. To the extent any
answer is deemed necessary, the Chevron Defendants deny that any plaintiff is entitled to
recovery under California Civil Code § 1882 et seq.
W.

Response To TSCA Allegations
The Chevron Defendants generally deny that they have violated TSCA. TSCA does not

require submission of the sort of data that plaintiffs allege the Chevron Defendants should have
submitted to EPA regarding incidences of releases of gasoline or the occurrence of MTBE. The
Chevron Defendants have submitted extensive information and data about releases of gasoline to
the proper authorities. EPA’s 2000 Advance Notice of Proposed Rulemaking placed no legal
obligation of disclosure on the Chevron Defendants. Moreover, an Advance Notice of Proposed
Rulemaking is not a rule promulgated under TSCA and therefore cannot provide the basis for a
TSCA citizen suit.
Even if information about gasoline releases or the occurrence of MTBE were within the
scope of TSCA, there could be no violation for failure to submit such information because EPA
already has extensive information on those topics, and under EPA guidelines there is no need to
report information to EPA under TSCA when EPA already is aware of essentially the same
information. EPA is well-informed about releases from service stations and the occurrence of
MTBE. EPA has a special department, the Office of Underground Storage Tanks, which gathers
and publishes information about the extent of releases of gasoline and the occurrence of MTBE.
Likewise, EPA receives voluminous data on those subjects from other federal agencies.
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The Chevron Defendants further deny that plaintiffs have complied with the statutory
requirements for filing a citizen suit under TSCA.
X.

Plaintiffs’ Allegations Regarding MTBE’s Degredation Product: TBA
The Chevron Defendants admit that TBA is the product of the hydrolysis of

isobutylene. The Chevron Defendants admit that TBA can be an intermediate product of
MTBE biodegradation.

The Chevron Defendants are without sufficient knowledge or

information as to the truth of the remaining allegations concerning the use of TBA as an
oxygenate in gasoline.
The Chevron Defendants state that solubility and mobility are relative properties and
that TBA is more soluble and mobile in water than certain gasoline components. The
Chevron Defendants further state that TBA's behavior in the environment -- and its behavior
relative to BTEX -- is dependent on a variety of factors, including the nature or method
of its release, the geological setting, and environmental and microbial factors.
The Chevron Defendants are without sufficient knowledge or information as to the
truth of the remaining allegations concerning the properties, characteristics, persistence, and
remediation of TBA in groundwater, or its presence in water supplies.
The Chevron Defendants are without sufficient knowledge or information as to the
truth of the allegations concerning the health effects of TBA.
II.

GENERAL DENIAL OF REMAINING ALLEGATIONS
The Chevron Defendants deny the remaining allegations in the complaints in MDL 1358

cases for which an answer is presently required, and in which they have been properly named
and served.
III.

RESERVATION OF RIGHT TO AMEND
The Chevron Defendants reserve the right to amend this Master Answer.
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IV.

AFFIRMATIVE DEFENSES APPLICABLE TO ALL CASES
For their separate defenses to the complaints in MDL 1358 cases for which an answer is

presently required, and in which they have been properly named and served, the Chevron
Defendants state as follows:
1.

Plaintiffs’ claims are barred in whole or in part by the doctrine of federal

preemption.
2.

At all relevant times, the Chevron Defendants’ actions and products complied

with and were undertaken pursuant to applicable federal, state, and local laws, rules, regulations
and specifications.
3.

Plaintiffs’ claims are barred in whole or in part because federal, state and/or

local authorities and agencies have mandated, directed, approved and/or ratified the alleged
actions or omissions of the Chevron Defendants.
4.

All acts and conduct of the Chevron Defendants, as alleged in the complaints,

conformed to and were pursuant to statutes, government regulations and industry standards, and
were based upon the state of knowledge existing at all material times alleged in the complaints.
5.

The relief sought by plaintiffs’ complaints is, in whole or in part, within the

particular expertise of and is being addressed by federal and state governments, and their
relevant agencies, and thus this Court should decline to exercise jurisdiction over this matter
pursuant to the doctrine of primary jurisdiction.
6.

Plaintiffs have failed to exhaust their administrative remedies.

7.

Plaintiffs have a plain, common, adequate and speedy remedy at law.

The

equitable causes of action alleged in the complaints are thus barred.
8.

Plaintiffs are barred from seeking strict liability for design defect as any

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attempt to reexamine the mandatory cost-benefit analysis delegated to and performed by the EPA
pursuant to its obligations under the Clean Air Act (CAA) would be impermissible given that
Congress, through Section 211 of the CAA, authorized the EPA, and not the courts, to perform
the cost-benefit analysis.
9.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which the Chevron Defendants deny,
the Chevron Defendants allege that such hardship is outweighed by the convenience and public
service rendered by the Chevron Defendants’ actions.
10.

Each purported cause of action asserted in the complaints is barred under the

doctrine of primary assumption of risk in that the general public, by and through its elected
representatives and their appointees, knew and understood the alleged risks of harm presented by
the use of MTBE, if any, and elected nevertheless to proceed to require the use of gasoline
oxygenates and to specifically permit the use of MTBE as a gasoline oxygenate.
11.

To the extent that plaintiffs have received or may receive the requested relief

from a governmental agency, the Chevron Defendants assert their entitlement to an appropriate
set-off or reduction of any judgment against them.
12.

The appropriate forum for plaintiffs’ claims is an administrative agency, and

therefore all proceedings before this Court should be stayed pending administrative resolution of
the issues.
13.

The claims set forth in the complaints fail, in whole or in part, based on the

doctrine of election of remedies.
14.

Each purported cause of action of the complaints as applied to the Chevron

Defendants is barred because the relief sought therein would pose unreasonable barriers and

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substantial burdens on interstate and/or international commerce in violation of the Commerce
Clause of the United States Constitution and/or the North American Free Trade Agreement.
15.

The complaints fail to state a claim upon which relief may be granted and

should, therefore, be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
16.

Because plaintiffs have not suffered any cognizable harm and have not

incurred any present damages, there is no current case or controversy and thus, plaintiffs’ claims
are not ripe for adjudication.
17.

Plaintiffs suffered no losses or injuries that were proximately caused by the

Chevron Defendants.
18.

The Chevron Defendants’ conduct was not the cause in fact of any injuries

alleged by plaintiffs.
19.

Plaintiffs have failed to state a cause of action for nuisance because they have

neither alleged nor suffered any particularized injury.
20.

The alleged injuries and damages, if any, suffered as a result of conduct

legally attributable to the Chevron Defendants is de minimus and therefore any injunction would
pose a disproportionate hardship on the Chevron Defendants, as well as on the public, in
comparison to the injury and or damages allegedly suffered by plaintiffs.

Accordingly,

plaintiffs are not entitled to injunctive relief as to the Chevron Defendants as a matter of law.
21.

Plaintiffs do not have a legally cognizable injury unless or until the alleged

MTBE contamination exceeds state action levels.
22.

Plaintiffs may not seek attorneys’ fees as an element of relief.

23.

Plaintiffs have failed to properly present any claim for attorneys’ fees.

24.

Because plaintiffs have sued multiple parties, under multiple causes of action,

with divisible damages, any claim for attorneys’ fees must be proportioned between same.
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25.

The claims set forth in the complaints are barred, in whole or in part, by the

mootness doctrine.
26.

The complaints and each purported cause of action are barred, in whole or in

part, by the defense of laches. Plaintiffs’ unreasonable and inexcusable delay in filing these
actions caused substantial prejudice to the Chevron Defendants.
27.

The complaints and each purported cause of action are barred by the

applicable provisions of the pertinent statutes of limitations.
28.

The complaints and each purported cause of action are barred by the

applicable provisions of the pertinent statutes of repose.
29.

Plaintiffs are estopped by their conduct from asserting any of the purported

claims alleged against the Chevron Defendants in the complaints.
30.

Plaintiffs have not investigated the cause of the alleged harm or attempted to

identify the actual party or parties responsible for their alleged injuries.
31.

Plaintiffs cannot establish the required predicates for their theories of

collective liability, and therefore their defendant-identification burden remains. In the event that
the defendant-identification burden is shifted in the future, the Chevron Defendants deny that it
contributed to the contamination at issue.
32.

Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

33.

Plaintiffs assumed the risk of all acts, injuries, and damages that plaintiffs now

assert against the Chevron Defendants.
34.

The Chevron Defendants are entitled to total or partial indemnity from those

individuals or entities who are responsible for plaintiffs’ injuries or damages, if any, in
an amount in direct proportion to their relative culpability.
35.

Plaintiffs lack the capacity to sue.
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36.

Plaintiffs lack standing to sue.

37.

Plaintiffs’ claim is barred because the Chevron Defendants’ conduct caused no

physical impact to plaintiffs’ property.
38.

There is a defect or misjoinder of parties, in that plaintiffs have failed to join

indispensable or necessary parties.
39.

Plaintiffs have failed to name the party or parties responsible for the alleged

40.

The claims set forth in the complaints fail, in whole or in part, because of the

harm.

failure to identify which defendant, if any, proximately caused the alleged harm.
41.

Plaintiffs’ claimed injuries were caused in whole or in part by others, whose

actions were not controlled by or related to the Chevron Defendants.

Such actions are the

superseding, supervening and/or intervening cause of plaintiffs’ injuries and therefore plaintiffs
may not recover from the Chevron Defendants as a matter of law.
42.

Plaintiffs’ claims must be dismissed because they have failed to identify the

particular defendant that is responsible for the harms alleged by plaintiffs.
43.

Any gasoline product sold or distributed for resale by the Chevron Defendants

was properly designed, formulated, prepared and otherwise not defective in any respect.
44.

To the extent required, the Chevron Defendants provided proper warnings,

information, and instructions relating to their products pursuant to generally recognized and
prevailing standards in existence at the time.
45.

Plaintiffs have failed to allege that the Chevron Defendants’ alleged failure to

provide an adequate warning proximately caused their injuries.
46.

Any gasoline product containing MTBE manufactured, sold, or distributed for

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resale by the Chevron Defendants was not unreasonably dangerous when made.
47.

The plaintiffs’ claims against the Chevron Defendants are barred by the bulk

supplier doctrine.
48.

The products at issue were sold to knowledgeable and sophisticated

purchasers, and any injury alleged by plaintiffs was caused by such purchasers’ failure to
observe known standards of care.
49.

Any injury, damage or loss sustained by the plaintiffs was proximately caused by

and/or contributed to by their own negligence, carelessness, and/or omissions.
50.

Plaintiffs’ claims are barred pursuant to the learned intermediary doctrine.

51.

Plaintiffs’ public nuisance claims should be dismissed because there were no

acts or omissions by or on behalf of any of the defendants constituting an intentional,
unreasonable interference with the plaintiffs’ interest in the use and enjoyment of their property.
52.

Plaintiffs’ public nuisance claims must be dismissed because plaintiffs have

failed to allege “special damages,” an absolute prerequisite to the assertion of a public nuisance
claim.
53.

The Chevron Defendants owed no duty of care to plaintiffs in connection with the

matter alleged in the complaints.
54.

The complaints fail to plead the elements of negligence claims with sufficient

clarity, specificity, and particularity.
55.

Plaintiffs’ claims are barred to the extent the conduct complained of is

protected by the First Amendment to the United States Constitution.
56.

The complaints and each cause of action are barred based on the Chevron

Defendants’ valid exercise of the right of petition to the federal government, state government(s),
and/or their respective deliberative bodies and agencies.
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57.

Plaintiffs’ claims are barred, in whole or in part, based on plaintiffs’ actual or

constructive notice of reported spills or releases, if any, from publicly available records.
58.

There is no legal relationship upon which any duty could possibly be owed by the

Chevron Defendants to plaintiffs, and therefore, plaintiffs’ causes of action fail as a matter of
law.
59.

The injuries and damages, if any, alleged by plaintiffs are caused in whole or in

part by the presence of compounds other than MTBE (e.g., the BTEX compounds). Under
plaintiffs’ own legal theories, the Chevron Defendants are not liable for damages caused by
compounds other than MTBE. In the event liability is assessed against the Chevron Defendants,
such liability must be reduced where, and to the extent that, other compounds – about
which plaintiffs do not complain – contributed to the alleged injury.
60.

The Chevron Defendants are not liable for contamination where chemical

compounds other than MTBE exceed state actions levels or standards, requiring cleanup
regardless of the presence of MTBE (particularly, but not exclusively, where MTBE is present
below state action levels or standards).
61.

Any injury, damage or loss sustained by the plaintiffs in connection with the

subject matter of this action was not reasonably foreseeable.
62.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which the Chevron Defendants deny,
any award of damages must be reduced in proportion to the percentage of fault attributable to the
plaintiffs.
63.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which the Chevron Defendants deny,

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The Chevron Defendants allege that any award of damages shall be reduced in proportion to the
percentage of fault attributable to third parties (including but not limited to persons or entities
responsible for gasoline leaks or spills).
64.

The injuries alleged in the complaints, if any, may be reasonably apportioned

among the defendants, as each defendant’s alleged acts and omissions, including those of the
Chevron Defendants, are divisible and distinct. Therefore, no defendant is jointly and severally
liable to plaintiffs for any claim alleged in the complaints.
65.

Plaintiffs’ claims are barred to the extent that they have unreasonably failed to

mitigate their damages, if any.
66.

To the extent that any party has settled or may settle in the future with

plaintiffs, the Chevron Defendants assert their entitlement to an appropriate credit or reduction of
any judgment(s) against them.
67.

Plaintiffs’ claims for punitive damages violate the provisions of the U.S.

Constitution, including but not limited to those provisions requiring due process of law and
prohibiting excessive fines.
68.

The Court does not have personal jurisdiction over Chevron Corporation

and/or other Chevron Defendants.
69.

Plaintiffs are public entities and/or authorities seeking compensation for

damages to natural resources under their jurisdiction or purview. These public entity/authority
plaintiffs have improperly delegated the power to prosecute these cases to private attorneys on a
contingent fee basis. Such delegation is against public policy.
70.

The Chevron Defendants incorporate by reference any affirmative defense,

whether general or specific to a specific State, alleged by other defendants in MDL 1358.
71.

The pleading of the defenses described above shall not be construed as an
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undertaking by the Chevron Defendants of any burden which would otherwise be the
responsibility of plaintiffs.
72.

Plaintiffs lack standing to bring a citizen suit under TSCA.

73.

The information plaintiffs claim that the Chevron Defendants should have

disclosed under TSCA is not reportable under the TSCA statute or under EPA’s guidance
interpreting TSCA.
74.

Plaintiffs have failed to comply with the jurisdictional prerequisites for

bringing a claim under TSCA.
75.

Plaintiffs cannot demonstrate that EPA was unaware of information plaintiffs

allege should have been disclosed under TSCA when plaintiffs’ TSCA claim was brought.
76.

The damages sought by plaintiffs are wholly speculative and conjectural.

77.

Some or all of the injury or damages suffered by plaintiffs were the product of

conduct for which the Chevron Defendants cannot have liability to plaintiffs, since it is lawfully
undertaken by the Chevron Defendants and their predecessors in the exercise of their rights as
owner(s) of real property.
V.

DEFENSES APPLICABLE TO PARTICULAR JURISDICTIONS
For their separate defenses to the complaints in MDL 1358 cases from particular

jurisdictions (for which an answer is presently required, and in which the Chevron Defendants
have been properly named and served), the Chevron Defendants state as follows:
CALIFORNIA
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to California Code of
Civil Procedure §§ 337, 337.1, 337.2, 337.15, 338, 340, 340.8, 343 and California Business and
Professions Code § 17208..
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2.

California Civil Code §§ 1431.1 through 1431.5, commonly known as

“Proposition 51,” provide that the liability of each defendant for non-economic damages, if any,
shall be several only and shall not be joint, and the Chevron Defendants therefore assert that each
defendant may be held liable only for the amount of non-economic damages, if any, allocated to
that defendant in direct proportion to its percentage of fault, if any.
3.

The Chevron Defendants allege that its liability, if any, for non-economic loss be

pro-rated according to the provisions of California Civil Code § 1431.2.
4.

The complaints and each purported cause of action are barred because Plaintiffs

and/or their predecessors-in-interest and assignors are guilty of unclean hands.
5.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of unjust

enrichment.
6.

As to each cause of action in the complaints, the Chevron Defendants allege that

the release of MTBE and/or hazardous substances, if any, and the damages resulting there
from, if any, were caused by an act of God.
7.

The complaints and each purported cause of action are barred because they are

ambiguous and uncertain.
8.

Plaintiffs did not reasonably rely on any representation, disclaimer, warning, or

other act or omission of the Chevron Defendants.
9.

The Chevron Defendants had no duty to warn plaintiff or third parties about

the potential dangers, if any, of the product or products manufactured, packaged, labeled, used,
applied and/or removed by said third parties.
10.

The Chevron Defendants had no duty to warn because the risks of injury and

damages inherent in utilizing the products described in the complaints, if any, were open,
obvious or known.
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11.

Any express or implied warranties alleged by plaintiffs to have been made by the

Chevron Defendants, if made at all, were expressly disclaimed and excluded by product labels,
pursuant to the laws of the State of California, which provided that the Chevron Defendants
made no warranties, express or implied, concerning the products or the use of said products that
extended beyond the description on the label, and that all statements made concerning said
products applied only when used as directed.
12.

Plaintiffs are sophisticated water purveyors or managers and were, at all relevant

times, fully aware of the nature and risks of injury and damages described in the complaints that
could arise in the operations or management of a public drinking water supply system.
13.

If there was a less dangerous alternate design, without admitting that there was

and without assuming the burden of proof on this issue, the Chevron Defendants did not
and could not have known of such an alternate design at the time.
14.

If there was a less dangerous alternate design, without admitting that there was

and without assuming the burden of proof on this issue, such an alternate design was not feasible
at the time.
15.

Plaintiff and/or others modified, altered, or changed the Chevron Defendants’

products or materials referred to in the complaints, if any, so that such changes in any said
products or materials proximately caused plaintiffs’ injuries, loss and damages, if any.
16.

If the Chevron Defendants provided the products alleged to have been defective,

and without admitting that it did so or that any product was defective and without assuming the
burden of proof on these issues, the products were misused or abused by others without the
knowledge or consent of the Chevron Defendants and in a manner not reasonably foreseeable by
the Chevron Defendants prior to their receipt of notice of the circumstances described in the

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complaints. Such misuse or abuse was the sole cause of or a contributing cause to the injuries,
losses, and/or damages, if any, suffered by Plaintiffs as alleged in the Complaint, and by reason
thereof, Plaintiffs are barred from recovering some or all of any damages suffered
17.

The Chevron Defendants are not liable for any alleged wrongful entry upon land

because plaintiffs and/or plaintiffs’ predecessors in interest or assignors expressly or impliedly
consented to or had knowledge of all such activities or conditions.
18.

The Chevron Defendants allege that to the extent plaintiffs are claiming damages

for the cost of remediation due to plaintiffs’ alleged compliance with primary or secondary
drinking water standard or other regulations enacted by the State of California or any other
governmental body, those claims are unconstitutional because they constitute an ex post facto
application of a regulation disallowed by Art. 1, sec. 9 of the U.S. Constitution.
19.

The complaints and each purported cause of action are barred, in whole or in part,

by federal and state law, including but not limited to, the Supremacy Clause of the United States
Constitution, U.S. Const. art. VI, cl. 2; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq; and rules, regulations, and decisions there
under.
20.

Chevron Defendants allege that the maximum contaminant level or other drinking

water standard, to the extent they form the bases of plaintiffs’ claims against the Chevron
Defendants were arbitrarily and unreasonably enacted without due process and, therefore, cannot
be enforced against Chevron Defendants.
21.

The complaints and each purported cause of action are barred to the extent that

federal and/or California state agencies have exonerated the Chevron Defendants and/or
determined that any Chevron Defendants’ facility did not contribute to the presence of MTBE in

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the relevant groundwater for which plaintiffs are asserting damages.
22.

The complaints and each purported cause of action are barred to the extent that

federal and/or California state agencies have settled with and/or released Chevron Defendants
from any further liability respecting the presence of MTBE in the relevant groundwater for
which plaintiffs are asserting damages.
23.

The complaints and each purported cause of action are barred because plaintiffs

do not own or have abandoned, lost, waived, given up, or otherwise failed to perfect any rights,
including but not limited to use rights related to any water that is the subject of the complaints.
Plaintiffs’ claims are also barred because under California law, the water that is the subject of the
complaints is the property of the State of California, not of plaintiffs.
24.

The complaints and each purported cause of action are barred to the extent that

such claims have been satisfied by payments or provision of alternate water supplies by the
Chevron Defendants, defendants, or third parties.
25.

The complaints and each purported cause of action are barred to the extent that

plaintiffs have assigned rights and claims for certain damages and other relief, if any, to the
Chevron Defendants, other defendants, or third parties.
26.

If plaintiffs sustained any injury under the circumstances alleged in the

complaints or in any other respect, their recovery against the Chevron Defendants, if any, is
barred by the alleged conduct and conditions resulted from a necessity.
27.

Plaintiffs’ claims for trespass are barred because the Chevron Defendants are

immune to liability for plaintiffs’ damages, if any, caused by earth movement.
28.

Plaintiffs’ claims are barred, in whole or in part, as the result of their own

knowing or negligent conduct that caused or contributed to MTBE and/or TBA contamination

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giving rise to these claims.
29.

Plaintiffs’ claims for violations of California Proposition 65 are barred because

MTBE and/or TBA are not listed on any published list of chemicals referenced in California
Proposition 65.

30.

The complaints fail to plead the elements of fraud claims with sufficient clarity,

specificity, and particularity.
31.

Plaintiffs’ claims for violations of California Bus. & Prof. Code § 17200 et seq.

(unfair competition) are barred by the provisions of California Proposition 64.
32.

Plaintiffs’ efforts to impose liability on the Chevron Defendants without proof

of causation violate the Due Process and other clauses of the federal and state constitutions.
ILLINOIS
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to, 735 ILCS
5/13-205.
2.

Plaintiffs’ recovery is barred, in whole or in part, due to their contributory fault,

pursuant to 735 ILCS 5/2-1116.
3.

Plaintiffs’ efforts to impose liability on the Chevron Defendants without proof

of causation violate the Due Process and other clauses of the federal and state constitutions.
INDIANA
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to, Ind. Code. Ann. §
34-20-3-1.
2.

Plaintiffs’ product liability design defect claims are barred, in whole or in part,
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because no alleged act or omission by the Chevron Defendants gave rise to design defect liability
pursuant to Indiana’s Product Liability Act, as set forth in Ind. Code. Ann. § 34-20-2-1.
3.

Plaintiffs’ product liability claims fail because the Chevron Defendants had no

duty to warn plaintiffs, as plaintiffs knew or should have known of the alleged danger.
Ind. Code. Ann. § 34-20-6-1.
4.

Plaintiffs’ product liability claims fail because the Chevron Defendants

manufactured their products in conformity with generally recognized state of the art. Ind. Code.
Ann. § 34-20-6-1.
5.

Any duty to warn, if one existed at all, was discharged pursuant to Ind. Code.

Ann. § 34-20-6-1 and § 34-20-6-3 because the alleged defects, if any, were open and obvious to
plaintiffs.
6.

Plaintiffs voluntarily and unreasonably assumed the risk of injury, thereby

relieving the Chevron Defendants of liability. Ind. Code. Ann.§ 34-20-6-1 and § 34-20-6-3.
7.

Any alleged design defect was not the proximate cause of the plaintiffs’ injuries

or harm, pursuant to Ind. Code. Ann. § 34-20-6-1 (West 2001).
8.

Plaintiffs’ alleged injuries, if any, resulted from the misuse of the product by the

plaintiffs or other persons, and such misuse was not reasonably expected by the Chevron
Defendants at the time that they sold or otherwise conveyed the product to the other party. Ind.
Code. Ann. § 34-20-6-4.
9.

Plaintiffs’ claims for public nuisance should be dismissed because at no time did

any act or omission attributable to the Chevron Defendants or their products interfere with the
plaintiffs’ comfortable enjoyment of life or property. Ind. Code. Ann. § 34-19-1-1.
10.

Plaintiffs have failed to state a cause of action for public nuisance because the

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Chevron Defendants’ alleged conduct is not unreasonable upon comparison of its alleged
conduct with plaintiffs’ competing interests. Ind. Code. Ann. § 34-19-1-1.
11.

Plaintiffs’ recovery is barred by their contributory fault, which is greater than

the fault of all persons whose fault may have proximately contributed to plaintiffs’ damages.
Ind. Code. Ann. § 34-51-2-6.
12.

Plaintiffs’ claims under the Indiana Environmental Legal Action statute

fail because the Chevron Defendants did not “cause or contribute to the release” of gasoline.
13.

Plaintiffs’ efforts to impose liability on the Chevron Defendants without proof

of causation violate the Due Process and other clauses of the federal and state constitutions.
IOWA
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to, Iowa Code Ann.
§§ 614.1(2) and 614.1(4).
2.

Plaintiffs’ recovery is barred by their contributory fault, which is greater than

the fault of all persons whose fault may have proximately contributed to plaintiffs’
damages. Iowa Stat. Ann. § 668.3.
3.

Recovery is barred or must be reduced, in whole or in part, based on the doctrine

of comparative negligence.
4.

The Chevron Defendants are not jointly and severally liable because they bear

less than fifty percent of the total fault of all parties. Iowa Stat. Ann. § 668.4.
5.

Plaintiffs assumed the risk of any alleged injury.

6.

The Chevron Defendants’ products “conformed to the state of the art in

existence at the time.” Iowa Stat. Ann. § 668.12(1).

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7.

The Chevron Defendants cannot be liable for failure to warn because the alleged

“risks and risk-avoidance measures…should be obvious to, or generally known by, foreseeable
product users.” Iowa Stat. Ann. § 668.12(3).
8.

The Chevron Defendants cannot be liable because “a product bearing or

accompanied by a reasonable and visible warning or instruction that is reasonably safe for use if
the warning or instruction is followed shall not be deemed defective or unreasonably dangerous
on the basis of failure to warn or instruct.” Iowa Stat. Ann. § 668.12(4).
9.

Plaintiffs’ efforts to impose liability on the Chevron Defendants without proof of

causation violate the Due Process and other clauses of the federal and state constitutions.
MASSACHUSETTS
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to Mass. Gen. Laws
Ann. Ch. 260 § 2A.
2.

Plaintiff’s claims are barred because its negligence is greater than the alleged

negligence of the Chevron Defendants. Mass. Gen. Laws Ann. Ch. 231 § 85.
3.

The Chevron Defendants are not liable for damages because any contamination

resulted from the acts or omissions of third parties and the Chevron Defendants exercised due
care with regard to its products and took reasonable precautions against foreseeable acts or
omissions of third parties and the consequences that could foreseeably result therefrom. Mass.
Gen. Laws Ann. Ch. 21E § 5(c)(3).
4.

Plaintiff is not entitled to injunctive relief because it failed to provide written

notice to the Massachusetts Attorney General and the Chevron Defendants as required by Mass.
Gen. Laws Ann. Ch. 214 § 7A.
5.

Plaintiff’s efforts to impose liability on the Chevron Defendants without proof of
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causation violate the Due Process and other clauses of the Massachusetts constitution and federal
constitution.
MISSOURI
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to Mo. Ann. Stat. §§
516.100, 516.120 and 516.010 (West).
2.

Plaintiffs’ recovery is barred or must be reduced, in whole or in part, based on the

doctrine of comparative fault. Mo. Ann. Stat. § 537.765 (West).
3.

Any duty to warn, if one existed at all, was discharged pursuant to Mo. Ann.

Stat.
§ 537.760 (West), because the alleged defects, if any, were open and obvious to plaintiffs.
4.

Plaintiffs’ product liability claims fail because the Chevron Defendants had no

duty to warn plaintiffs, as plaintiffs knew or should have known of the alleged danger. Mo. Ann.
Stat. § 537.760 (West).
5.

Plaintiffs’ product liability claims fail because the Chevron Defendants’ were in

conformity with generally recognized state of the art. Mo. Ann. Stat. §§ 537.764 and 537.760
(West).
6.

Plaintiffs’ product liability claims fail because the Chevron Defendants products,

at the time they were sold, were not in a defective condition or unreasonably dangerous when put
to a reasonably anticipated use. Mo. Ann. Stat. § 537.760 (West).
7.

Any alleged defective condition, of the Chevron Defendants’ products at the time

they were sold, was not the proximate cause of plaintiffs’ injuries or harm. Mo. Ann. Stat.
§ 537.760 (West).
8.

Plaintiffs’ alleged injuries, if any, resulted from use of the product that was not

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reasonably anticipated by the Chevron Defendants at the time that they sold or otherwise
conveyed the product. Mo. Ann. Stat. § 537.760 (West).
9.

Plaintiffs’ recovery of punitive damages arising out of their alleged injury is

limited under Mo. Ann. Stat. § 510.265 (West).
NEW JERSEY
1.

Plaintiffs’ claims against the Chevron Defendants are barred by the Natural

Resource Damages Settlement Agreement between the New Jersey Department of
Environmental Protection (“NJDEP”) and certain Chevron Defendants dated November 16,
2005.
2.

Plaintiffs have released the Chevron Defendants from their claims for natural

resource damages and/or other damages, costs and relief sought in this action.
3.

Plaintiffs’ claims against the Chevron Defendants are barred by the New Jersey

entire controversy doctrine, doctrine of res judicata and/or similar doctrines. Without limiting
the foregoing, Plaintiffs’ claims are barred to the extent that Plaintiff or its affiliates or
subdivisions have brought or are bringing claims against the Chevron Defendants or others
for the same or similar conduct, the same or similar transactions, the same or similar damages, or
the same or similar relief.
4.

Plaintiffs’ claims against the Chevron Defendants are barred by the applicable

New Jersey statutes of limitation, including but not limited to, N.J. Stat. Ann. § 2A:14-2.
5.

Plaintiffs’ claims under the New Jersey Compensation and Control Act (“Spill

Act”) are barred by one or more of the statutory defenses to liability provided in the Spill Act.
6.

The Chevron Defendants did not “discharge” any hazardous substance within the

meaning of the Spill Act.
7.

The Chevron Defendants are not “in any way responsible” for any discharges of
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hazardous substance within the meaning of the Spill Act.
8.

The costs and damages sought by Plaintiffs do not constitute “cleanup and

removal costs” under the Spill Act, or they are not otherwise recoverable under the Spill Act.
9.

Plaintiffs’ claim for treble damages under the Spill Act is barred because

Plaintiffs have failed to comply with the requirements set forth in the Spill Act.
10.

Plaintiffs’ claims are barred by the doctrine of primary jurisdiction insofar as the

NJDEP is responsible for directing and allocating responsibility for investigation and
remediation of the environmental condition alleged in the Complaint.
11.

Plaintiffs’ claims are barred because the Chevron Defendants have complied with,

and satisfied, all applicable laws, regulations, rules, orders, directives and/or other requirements
of the NJDEP and/or other state or federal agencies regarding the environmental condition
alleged in the Complaint.
12.

Plaintiffs’ claims under the Spill Act are barred to the extent Plaintiffs seek relief

for conduct occurring or damages incurred prior to the effective date of the Spill Act.
13.

Plaintiffs’ claims are barred, in whole or in part, by plaintiffs’ failure to comply

with the prerequisites to liability under the Spill Act, including without limitation plaintiffs’
incurring of costs not authorized by the Spill Act and plaintiffs’ failure to direct clean up and
remediation operations in accordance with the National Contingency Plan to the greatest extent
possible.
14.

Plaintiffs were contributorily and comparatively negligent, and therefore their

claims are barred or diminished by such negligence under the Comparative Negligence Act
and New Jersey common law.
15.

Plaintiffs’ claims for natural resource damages are barred because the State’s

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method of assessing natural resource damages was not adopted in a manner consistent with the
Administrative Procedures Act, N.J.S.A. § 52:14B-2(e).
16.

Plaintiffs’ claims under the Spill Act are not ripe, since clean up and

remediation have not been completed.
17.

Plaintiffs’ claims under the Spill Act are barred, in whole or in part, because the

claims asserted are preempted by federal law, including, without limitation the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.
18.

Any injury or damages suffered by Plaintiffs have been increased by

Plaintiffs’ failure to mitigate their damages, in that (1) the policies and activities of the State of
New Jersey and its agencies during the period of time for which plaintiffs seek damages have
caused damage to natural resources greater than that would otherwise have occurred; and (2) the
State and its agencies have failed to take reasonable measures available to them to reduce
damages.
19.

The Chevron Defendants’ conduct did not meet the minimum requirements of

culpability with respect to each material element of the alleged offenses of civil conspiracy,
public nuisance, and negligence, according to the applicable provision of N.J. Stat. Ann. § 2C:22, and, therefore, plaintiffs’ claims on these counts should be dismissed.
20.

Plaintiffs’ claims against the Chevron Defendants are barred, in whole or in part,

by the prior settlement with certain MDL plaintiffs in New Jersey under the entire controversy
doctrine, the doctrine of res judicata, and the defenses of recoupment, and accord and
satisfaction.
21.

Plaintiffs have failed to join parties needed for the just adjudication of the

Plaintiffs’ claims, in whose absence complete relief cannot be afforded the existing parties

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pursuant to N.J.Ct.R. 4:28-1.
22.

Plaintiffs’ injuries and damages, if any, were directly and proximately caused by

the intervening, superseding and/or fault of other persons and entities for which the Chevron
Defendants bear no responsibility. The Chevron Defendants are entitled to apportionment of the
relative degrees of fault to such other persons or entities, whether they are parties herein or not,
in accordance with New Jersey law and New Jersey Joint Tortfeasors Contribution Law,
N.J. Stat. Ann. 2A-53A-1 et seq.
23.

The Chevron Defendants deny that Plaintiffs are entitled to punitive damages in

this case. The Chevron Defendants did not have any intent to injure plaintiffs. The Chevron
Defendants incorporate and assert all defenses regarding the imposition of punitive damages
created by N.J. Stat. Ann. 2A:15-5.9 et seq.
24.

The imposition of punitive damages in this action would violate the Chevron

Defendants’ rights under the due process clause, equal protection clause, excessive fines clause,
and other clauses of the Constitution of the United States and the Constitution and laws of the
State of New Jersey.
25.

The legal standards regarding punitive damages are inadequate, vague and

ambiguous, further violating the due process clause of the United States Constitution and the
Constitution of the State of New Jersey.
26.

Plaintiffs’ claims for relief associated with the rights, interests or properties of

private parties, including claims for treatment of private wells or alleged damages to private
property, are barred to the extent plaintiff lacks standing or the legal authority to assert such
claims.
PUERTO RICO
1.

The complaint and each purported cause of action are barred by the applicable
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provisions of the pertinent statutes of limitations, including but not limited to Article 1868 of the
Puerto Rico Civil Code.
2.

Plaintiffs’ common law claims are barred, in whole or in part, by the Public

Policy Environmental Act.
3.

Plaintiffs’ public nuisance claim is barred because no act or omission by

the Chevron Defendants has caused, or will cause, any alleged injury recognized by P.R. Laws
Ann. tit. 32 § 2761.
4.

Plaintiffs’ public nuisance claim is barred because the alleged activity does not

constitute an “ultra-hazardous activity” or “illegal hazardous activity” under Puerto Rico law.
5.

Plaintiffs’ public nuisance claim fails because they have not alleged, and cannot

show, any "special damages" under Puerto Rico law.
6.

Plaintiffs’ claim for future costs is barred by P.R. Laws Ann. tit. 32 § 2761.

7.

Plaintiffs’ claim for trespass is barred because it is not a recognized cause of

action under the Puerto Rico Civil Code.
8.

Plaintiffs’ negligence claim fails because they have to plead, and they cannot

establish, the elements of a negligence claim under Art. 1802 of the Puerto Rico Civil Code.
9.

Plaintiffs lack standing to bring a citizen suit under Puerto Rico Public

P olicy Environmental Act (“PPEA”), P.R. Laws Ann. tit. 12 § 8001 et seq.
10.

The

Chevron Puerto Rico Defendants, Chevron Corporation and Chevron

U.S.A. Inc. are not liable under the PPEA because they have followed and complied with all
applicable dispositions and regulations promulgated under the PPEA, if any.
11.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable under the PPEA because their actions have not, in any manner, contributed or
created any damage or degradation to any of the Commonwealth's natural resources.
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12.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable under the PPEA because the alleged releases, if any, were caused by an
act or omission of a third party, and the Chevron Defendants exercised due care and took
precautions against foreseeable acts of a third party.
13.

Plaintiffs lack standing to bring a suit for alleged violations of the Water Pollution

Control Act (“WPCA”), P.R. Laws Ann. tit. 24 § 591 et seq.
14.

Plaintiffs cannot recover under the WPCA because MTBE is not a “pollutant”

within the meaning of the WPCA, P.R. Laws Ann. tit. 24 § 591(h).
15.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable under the WPCA because the prohibitions, as well as the definitions contained
in the WPCA, are unconstitutionally vague.
16.

Plaintiffs’ claims are barred because MTBE is not considered a "pollutant" by the

Commonwealth's Water Quality Standards Regulations, Department of State Regulation No.
6616.
17.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable under the Water Quality Standards Regulations because MTBE is not
regulated or limited under the Water Quality Standards Regulations.
18.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable for alleged violations of the Water Quality Standards Regulations because the
releases, if any, were caused by an act of God.
19.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. are not liable under the Water Quality Standards Regulations because the releases, if any,
were caused by an act or omission of a third party and the Chevron Puerto Rico Defendants,
Chevron Corporation and Chevron U.S.A. Inc. exercised due care and took precautions against
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foreseeable acts of such third party.
20.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron

U.S.A. Inc. are not liable for alleged violations of the Underground Storage Tank Regulations
because MTBE is not considered a "Regulated Substance" under Department of State Regulation
No. 4362 or other applicable regulations.
21.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron

U.S.A. Inc. are not liable for alleged violations of the Underground Storage Tank Regulations
because the alleged releases, if any, were caused by an act of God.
22.

The Chevron Puerto Rico Defendants, Chevron Corporation and Chevron U.S.A.

Inc. complied with all applicable law and regulations in Puerto Rico governing MTBE,
including but not limited to all applicable laws and regulations regarding investigation, reporting
and/or remediation of MTBE in the environment.
23.

Plaintiffs’ claim for exemplary and/or punitive damages is barred because such

relief is not available under Puerto Rico law.
24.

Plaintiffs’ claim for “restitution for unjust enrichment” and/or “disgorgement of

profits” is barred because such relief is not available in these cases under Puerto Rico law.
25.

Texaco International Trading Inc. was dissolved properly under Delaware law

more than three years before the Commonwealth of Puerto Rico and the Commonwealth of
Puerto Rico, by and through the Environmental Quality Board, filed their complaint in 14-CV1014. As such, Texaco International Trader Inc. lacks the capacity to be sued in 14-CV-1014.
26.

ChevronTexaco Global Trading was never a corporation and it ceased to exist

on June 30, 2004. ChevronTexaco Global Trading lacks the capacity to be sued in 14-CV1014.

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VERMONT
1.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations, including but not limited to, 12 Vermont Stat.
Ann. §§ 511, 512(4), 512(5).
2.

Plaintiffs’ recovery is barred by their contributory fault, which is greater than the

causal total negligence of the defendant or defendants. 12 Vermont Stat. Ann. § 1036.
3.

Recovery is barred or must be reduced, in whole or in part, based on the doctrine

of comparative negligence. 12 Vermont Stat. Ann. § 1036.
4.

Plaintiffs’ efforts to impose liability on the Chevron Defendants without proof of

causation violate the Due Process and other clauses of the federal and state constitutions.
FEDERAL CERCLA AND RCRA CLAIMS
1.

Plaintiffs have failed to state a claim for relief against the Chevron Defendants

under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601, et seq. (“CERCLA”).
2.

The Chevron Defendants are not liable parties under CERCLA as defined in

42
U.S.C. § 9607(a)(1)-(4).
3.

Plaintiffs’ claims under CERCLA are barred by 42 U.S.C. § 9607(b)(3), because

the alleged releases or threatened releases of hazardous substances, and alleged damages
resulting therefrom, if any, were caused solely by acts or omissions of third parties.
4.

Plaintiffs’ claims under CERCLA are barred and/or untimely under the applicable

provisions of the pertinent statute of limitations, including, but not limited to, those set forth in
42 U.S.C. § 9613.

5.

To the extent that any or all of the defendants are found liable under CERCLA,
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joint and several liability is inappropriate as to the Chevron Defendants because the damages are
divisible, there are distinct harms, or there is a reasonable basis for apportionment of the alleged
harms suffered.
6.

Plaintiffs’ claims under CERCLA are barred because petroleum products,

including gasoline containing MTBE, are excluded from the definition of “hazardous
substances” under CERCLA.
7.

Plaintiffs’ claims under CERCLA are barred because any past or future costs, if

any, incurred by Plaintiffs in responding to an alleged release or threatened release of hazardous
substances are inconsistent with the National Contingency Plan or otherwise not recoverable
under CERCLA.
8.

Plaintiffs’ claims under CERCLA are subject to either the exclusive jurisdiction

or the primary jurisdiction of the United States Environmental Protection Agency (“USEPA”).
9.

Plaintiffs are unable to recover their alleged natural resource damages under

CERCLA.
10.

Plaintiffs’ claims under CERCLA are barred because Plaintiffs have failed to

satisfy each and every condition precedent necessary to recover for past and/or future response
costs under CERCLA.
11.

The costs and damages allegedly incurred or to be incurred by Plaintiffs, if

any, are unreasonable, duplicative, not cost effective and, therefore, are not recoverable under
CERCLA.
12.

Plaintiffs’ claims under CERCLA for natural resource damages are barred, in

whole or in part, because the alleged damages constitute irreversible and irretrievable
commitments of natural resources.

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13.

Plaintiffs’ claims under CERCLA are barred by 42 U.S.C. § 9607(b)(1)-

(2) because the alleged releases or threatened releases of hazardous substances, and alleged
damages resulting therefrom, if any, were caused solely by acts of God and/or acts of war.
14.

Without admitting any liability, if it is determined that the Chevron Defendants

engaged in any of the activities alleged by Plaintiffs, such activities on the part of the Chevron
Defendants were de minimis.
15.

Plaintiffs’ CERCLA claim is barred because Plaintiffs have failed to comply with

the jurisdictional prerequisites for bringing a claim under CERCLA.
16.

The Chevron Defendants are not liable under CERCLA because Plaintiffs’ claims

are barred by the doctrines of estoppel, unclean hands, and/or laches.
17.

Plaintiffs’ CERCLA claims are barred, in whole or in part, because the sites at

issue are not listed on the NPL.
18.

Plaintiffs have failed to state a claim for relief against the Chevron Defendants

under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq.
(“RCRA”).
19.

Plaintiffs’ claims under RCRA are barred to the extent plaintiffs seek relief for

conduct occurring or damages incurred prior to the effective date of RCRA.
20.

Plaintiffs’ claims under RCRA are barred because MTBE and gasoline containing

MTBE are not “solid wastes” and/or “hazardous wastes” under RCRA.
21.

Plaintiffs’ RCRA claim fails because Plaintiffs failed to allege, and they cannot

show, that the Chevron Defendants have violated RCRA Subchapter III, if applicable.
22.

Plaintiffs’ RCRA claim is barred because Plaintiffs have failed to comply with the

jurisdictional prerequisites for bringing a claim under RCRA.

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Respectfully submitted,
s/ Jeremiah J. Anderson____________
Robert E. Meadows
Jeremiah J. Anderson
James J. Maher
KING & SPALDING LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: [phone]
Facsimile: [phone]
Charles C. Correll, Jr.
King & Spalding LLP
101 Second Street, Suite 2300
San Francisco, California 94015
Telephone: [phone]
Facsimile: [phone]
Attorneys for the Chevron Defendants

CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2015 a true, correct, and exact copy of the foregoing
document was served on all counsel via LexisNexis File & Serve.

s/ Jeremiah J. Anderson____________
Jeremiah J. Anderson

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