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

Filing 4385

CONSENT DECREE AS TO DUKE ENERGY MERCHANTS, LLC ONLY: THEREFORE, with the consent of the Parties to this Consent Decree, it is hereby ORDERED and ADJUDGED: This case was removed to the United States District Court for the District of New Jersey pursuant to 28 U.S. C. § 1446(d) and the Energy Policy Act of 2005, 42 U.S.C. § 7545, et seq., which expressly authorized the removal of legal actions related to allegations involving MTBE contamination, and then assigned to the Southern District of New York ("S.D.N.Y.") as part of the Multi-District Litigation. For purposes of approving and implementing this Consent Decree, the Parties to this Consent Decree waive all objections and defenses they may have to the jurisdiction of this Court over the Parties and this Consent Decree. The Parties shall not challenge the S.D.N.Y.'s jurisdiction to enforce this Consent Decree against the parties to this Consent Decree. Within fourteen (14) days after the effective date of this Consent Decree, Duke shall pay the Plaintiffs One Million Seven Hundred Thousand Dollars ($1,700,000.00). (As further set forth in this Order) Duke Energy Merchants, LLC terminated. (Signed by Judge Shira A. Scheindlin on 2/19/2016) (kl) Modified on 2/29/2016 (kl). (Additional attachment(s) added on 2/29/2016: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E, # 6 Appendix F) (kl).

Wedeking,

Esq.

of Sidley Austin LLP,

appearing as attorney for

defendant Duke Energy Merchants, LLC ( '\Duke 11 )

i

and these· Parties

having amicably resolved their dispute before trial:

I.
A.

BACKGROUND

The Plaintiffs initiated this action on or around June

28, 2007 by filing a complaint against Duke and other defendants·
in the Superior Court of the State of New Jersey, Mercer County,
Docket

MER-L-1622-07,

Compensation
(

11

and

the Spill Act 11 )

N.J. S .A.

pursuant

Control
,

Act,

to

the

N.J. S .A.

New

Jersey

58:10-23.11

to

Spill
-23.24

the New Jersey Water Pollution Control Act,

58: 10A-1 to

-20,

and the common law.

The action was

removed to the United States District Court for the District of
New Jersey,

and later assigned to the multi-district litigation

in the United States District Court for the Southern District of
New York,

MDL No. 1358

(SAS)

(\\Multi-District Litigation"),

for

coordinated pre-trial proceedings.
B.

The

Plaintiffs

filed

amended

complaints,

the

latest

being the Fourth Amended Complaint, which was filed on June 19,
2012 (the "Complaint 11 ) .

c.

Plaintiffs,

in their Complaint,

seek past and future

damages they allegedly have incurred and will incur as a result
of alleged widespread contamination of the waters of New Jersey
by methyl tertiary butyl ether ( "MTBE'') .

2

D.

Plaintiffs,

in their Complaint,

seek past and future

costs they allegedly have incurred and will incur as a result of
alleged widespread contamination of the waters of New Jersey by
MTBE.
Plaintiffs, in their Complaint, seek injunctive relief

E.

qoncerning the remediation of MTBE discharges.
Du~e

F.
principal

is a Delaware limited liability company with its

place

of

business

at

500

South

Tryon

Street 1

Charlotte, North Carolina.
G.

Duke

filed

liability

on

any

asserted

various

responsive

and

all

pleadings

claims

defenses

to

asserted

the

in

which

by

it

denied

Plaintiffs

allegations

and

and

claims

not

owned,

contained in the Complaint.
Duke

H.

represents

and

avers

that

it

has

operated/ leased, or branded any service stations in New Jersey;
that it has not owned or operated any underground storage tanks
in New Jerseyi that it has not owned or operated any pipelineS 1
tankers,

or barges used to transport gasoline;

that it has not

transported gasoline by rail or road in New Jersey; that it has
not manufactured MTBE;

that it was not the ultimate seller of

any gasoline within New Jersey;

that it played no role in the

decision to introduce the use of MTBE into the gasoline supply
in

New

gasoline

Jersey;

and

that

containing MTBE

it
into

has
the
3

not

leaked

waters

of

or

spilled

any

New Jersey;

but

acknowledges

that

at

relevant

times

in

(from

or

about

approximately 2000 to January 2004), it acted as a middle market
participant in the gasoline market anq in that capacity{

traded

gasoline that contained MTBE.
I.

The Parties to this Consent Decree recognize, and this

Court by entering this Consent Decree finds,

that the Parties to

this Consent Decree have negotiated this Consent Decree in good
faith;

that the implementation of this Consent Decree will allow

the Parties to this Consent Decree to avoid continued, prolonged
and

complicated

litigation;

and

that

this

Consent

Decree

is

fair, reasonable, and in the public interest.

THEREFORE,

with

the

consent

of

the

Parties

to

this

Consent Decree 1 it is hereby ORDERED and ADJUDGED:

II.
This case was

1.

Court for

JURISDICTION

removed

to

the United States District

the District of New Jersey pursuant

to

2 8 U.S. C.

1446(d) and the Energy Policy Act of 2005, 42 U.S.C.

seq. ,

which expressly authorized

related to

allegations

involving

the removal
MTBE

of

part of the Multi-District Litigation.

4

7545,

et

legal actions

contamination,

assigned to the Southern District of New York

§

§

and

then

("S.D.N. Y .")

as

For

2.

Consent

purposes

Decree~

the

of

Parties to this

objections and defenses
this

Court

Parties

over . the

shall

approving

and

this

Consent Decree waive all

they may have to the

Parties

and

this

challenge

not

implementing

the

S.D.N.Y.

jurisdiction of

Consent
1

Decree.

The

jurisdiction

S

to

enforce this Consent Decree against the parties to this Consent
Decree.
III.

This Consent Decree applies tor

3.

the

PARTIES BOUND

Plaintiffs

and

defined below (each

1

only

the

Unless

Settling

Defendantsr

as

a '\Party" and collectively, the "Parties") .
IV.

4.

named

and is binding upon,

otherwise

DEFINITIONS
expressly

provided, .terms

used

in

this Consent Decree that are defined in the Spill Act or in the
regulations promulgated under the Spill Act

shall have

statutory or

the

regulatory

meaning.

Whenever

terms

their
listed

below are used in this Consent Decree, the following definitions
shall apply:
"Consent Decree" shall mean this Consent Decree.
11

Damages 11

shall

mean

all

damages

alleged

in

the

Complaint for claims arising from discharges of MTBE into Waters
of

the

Stater

as

defined

below,

Department pursuant to N .J .A. C.
5

that

were

reported

to

the

7: lE-5 prior to the effective

date of this Consent Decree or that occurred at any of the sites
identified on the list included as Appendix A to this Consent
Decree, including, but not limited to:

a.

The Plaintiffs' costs of assessing injury to Waters of

the State;
b.

The

costs

contaminated
which,

of

with

restoring
MTBE

to

the

their

waters

of

the

pre-discharge

for the purpose of the Consent Decreer

State

quality,

shall be at

or below 1 part per billion;
c.

Compensation for

restoration of 1

the

lost value

of,

injury to1 and/or destruction of, Waters of the State;

d.

Compensation

for

the

treatment

of

well

water

containing MTBE to.its pre-discharge condition; and
e.

Attorneys'

fees,

consultants'

and experts'

fees,

and

other litigation costs.
"DamagesiT do not include:
a.

Compliance, during any remediation, with any statutory

or

regulatory

requirement

that

is

not

within

this

definition of damages 1 for example, without limitation, the
mitigation of freshwater wetlands as required by N.J. A. C.
7:7A; and
b.

Past Cleanup and Removal Costs and Future Cleanup and

Removal Costs, both as defined below.

6

"Day 11
stated to be a

shall

mean

a

calendar

working day.

day

"Working Day"

other than a Saturday, Sunday,

unless

expressly

shall mean a

or State holiday.

day

In computing

time under this Consent Decree, where the last day would fall on
a Saturday,

Sunday, or State holiday,

time shall run until the

close of business of the next Working Day.
uDuke' s

Representations"

shall mean Duke's representation,

affirmation,

and

subject

to

that

true

that

Duke

it

is

declaration
and

correct

penalties
(i)

has

of

perjury

not

owned,

operated, leased, or branded any service stations in New Jersey;
{ii) has not owned or operated any underground storage tanks in
New

Jersey;

tankers,

{iii)

has

not

owned

barges used to transport

or

operated

g~soline

any

pipelines,

in New Jersey;

has not transported gasoline by rail or road in New Jersey;
has

not

manufactured MTBE;.

(vi)

was

not

seller of any gasoline within New Jersey;

the

ultimate

(vii)

(iv)
(v)

retail

has played no

role in the decision to introduce the use of MTBE gasoline in
New Jersey;

and

(viii)

has not leaked or spilled any gasoline

containing MTBE into the waters of New Jersey.

11

Future

Cleanup

and

Removal

Costs 11

shall

mean

all

direct and indirect costs the Plaintiffs will incur on or after
the effective date of this Consent Decree,
costs,

to remediate MTBE discharges
7

including oversight

that were reported to the

Department pursuant

to N.J.A.C.

7:1E-5 prior

to

the

effective

date of this Consent Decree as set forth in Paragraph 28.

"MTBE"

shall mean methyl tertiary butyl ether,

neat

or as a part of gasoline or as a contaminant of other fuel 1 and
the degradation byproducts of
tertiary butyl alcohol

( "TBA'

1

)

commercial grade MTBE,

including

In addition, MTBE shall include

•

TBA when TBA is or was present in MTBE gasoline.
11

Paragraph"

shall

mean

a

portion

of

this

Consent

Decree identified by an Arabic numeral or an upper case letter.
11

Past Cleanup and Removal Costsn shall mean all direct

and indirect costs the Plaintiffs incurred before the effective
date

of

this

Consent

Decree,

including

oversight

costs,

to

remediate MTBE discharges.
11

Plaintiffs"

Commissioner,

and

mean

shall

the

plaintiffs

Administrator/

and

any

DEP 1

the

successor

department, agency or official.
11

Sectionn shall mean a portion of this Consent Decree

identified by a roman numeral.
11

Settling Defendant 11

shall mean defendant Duke Energy

Merchants, LLC and shall include all parent companies, officers,
directors, employees, predecessors, predecessors in interest,
successors, past and present
(each 1 a "Related Entity 11 )

1

officers~

directors, and employees

but only to the extent that the
8

alleged liability of any Related Entity is based on its or his
or her status and in its or his or her capacity as a Related
Entity, and not to the extent that the alleged liability of the
Related Entity with respect to MTBE contamination arose
independently of its or his or her status and capacity as a
Related Entity of Settling Defendants.
"Waters

of

the

estuaries, all springs,
water 1

State 11

are

the

ocean

and

its

streams and bodies of surface or ground

whether natural or artificial,

within the boundaries of

the State of New Jersey or subject to its jurisdiction.

V.
5.

(a)

SETTLING DEFENDANT 1 S COMMITMENTS

Within fourteen

this Consent Decree,

{14)

days after the effective date of

Duke shall pay the Plaintiffs One Million

Seven Hundred Thousand Dollars ($1,700,000.00).
(b}

Duke shall pay the amount specified in Paragraph 5 (a)

above by certified check made payable to

"Treasurer,

State of

New Jersey" or by wire transfer of immediately available funds
pursuant to instructions provided by Plaintiffs. Duke shall mail
or

otherwise

deliver

the

payment

and

previously received from Plaintiffs
wire

transfer

Duke

shall

to 1

any

payment

or in the event of

contemporaneously

payment to:
John N. Sacco, Chief

9

invoice

send

notice

if
a
of

Office of Natural Resource Restoration
Green Acres Program
New Jersey Department of Environmental Protection
501 East State Street 1 1st Floor

Mail Code 501-01
Trenton, New Jersey 08625i ·
with a photocopy thereof to:
Section Chief,
Cost

~ecovery

and Natural Resource Damages Section,

Division of Law,
Department of Law and Public Safety,
Richard J. Hughes Justice Complex,
25 Market Street,

P.O. Box 093,
Trenton, New Jersey 08625-0093.

VI.
6.

(a)

PLAINTIFFS' COVENANTS AND

In consideration of,

RE~EASES

and upon receipt of,

the payment

required in Section V above/ and except as otherwise provided in
Section VII below,
take

judicial,

the

Plaintiffs covenant not to

administrative

or

other

action

sue~

or to

against

the

Settling Defendant for reimbursement of Past Cleanup and Removal
Costs.

10

(b)
Decree,

Notwithstanding ·any other provision of this Consent
in consideration of I

and upon receipt of,

the payment

required in Section V above, the Plaintiffs covenant not to suet
or to take judicial, administrative or other action against the
Settling

Defendant

based

upon

Settling

Defendant's

liability

under the (i) common law and (ii) statutory or other theories of
products liability with respect to MTBE discharges into

Wat~rs

of the State that occurred prior to the effective date of this
Consent Decree as set forth in Paragraph 28.
In further consideration of, and upon the receipt of,

7.

the payment required in Section V above, and except as otherwise
provided in Section VII below,

the Plaintiffs fully and forever

release,

and agree not to otherwise take

covenant not to sue/

judicial,

administrative or other action against

the Settling

Defendant for Damages.
The covenants and r.eleases contained in this Section

8.

VI shall take effect upon the Plaintiffs receiving the payment
that Settling Defendant is required to make pursuant to Section
V above 1

in

full 1

and

in compliance with

the

terms

of

this

Consent Decree.
The covenants and releases contained in this Section

9.

VI

extend

only

to

Settling

Defendant

defendant, party, person or entity.

11

and

not

to

any

other

10.
VI

The covenants and releases contained in this Section
do

not pertain to any matters other

than those

expressly

stated herein.
VII.
11.

The

Settling

Defendant

PLAINTIFFS• RESERVATIONS

Plaintiffs'
is

willingness

subject

to

to

the

settle

Settling

compliance with all remediation requirements,
in

any

applicable

agreement,

order

statute,
or

regulation,

other

rule,

inc 1uding

Remediation Reform Act, N.J.S.A. 58:10C-1, et seq.
Defendant

agrees

that

hazardous

substances

all

investigation

they

perform

under

the

Defendant's

if any,

or

document,

with

set forth
and
the

any
Site

The Settling

and

remediation

of

State

oversight

(as

opposed to federal oversight) will be performed pursuant to the
Site Remediation Reform Act, N.J.S.A. SB:lOC-1 et seq., and the
accompanying regulations and guidance notwithstanding N .J .S .A.
58:10C-27(e).

such

The Plaintiffs reserve their rights to enforce

compliance.

Failure

to

comply

with

any

remediation

requirement may give rise to additional liability for Damages to
the extent that noncompliance increases the scope or duration of
injuries to Waters of the State,

and the Plaintiffs expressly

reserve their rights to pursue the Settling Defendant for such
increased scope or duration of injuries to Waters of the State
caused by Settling Defendant

1

S

noncompliance.

12

12.

The

Plaintiffs

reserve,

and

this

Consent

Decree

is

without prejudice to, all rights against the Settling Defendant
concerning

any

matter

not

addressed

in

this

Consent

Decree,

including; but not limited to, the following:
a. claims based on the

Settling Defendant's

failure

to

satisfy any term or provision of this Consent Decree;
b. liability arising from the Settling Defendant being in
any way responsible

for a

hazardous

substance other

than MTBE that is discharged into the Waters of the
State;
c. liability

for

remediation

cleanup

of

and

discharges

not

Department pursuant to N. J .A. C.

costs

removal

for

to

the

reported
7: lE-5 prior

to

the

effective date of this Consent Decree as provided in
Paragraph 28;
d. liability for any future discharge or unsatisfactory
storage or containment of any hazardous substance by
the Settling Defendant, other than as provided for in
an

administrative

consent

order

or

as

otherwise

ordered or approved by plaintiff DEP;
e. criminal liability;
f. liability for any violation by the Settling Defendant
of

federal

or

state

law

that

occurs

effective date of this C0nsent Decree; and
13

after

the

g. liability for any claim pending or filed on or after
the effective date of this Consent Decree against the
Spil.l Fund concerning the discharge of MTBE into · the
Waters of the State.
VIII.

SETTLING DEFENDANT'S COVENANT

The Settling Defendant covenants not to sue or assert

13.

any claim or cause of action against the State,
department,

including any

agency or instrumentaJ,.ity of the State 1

concerning

the matters addressed in the Complaint and this Consent Decree.
The .Settling

14.

above

does

not

apply

Defendant's
where

covenant

the

in

Plaintiffs

Paragraph
sue

or

13
take

administrative action against the Settling Defendant pursuant to
Section VII above.
IX.

FINDINGS AND ADMISSIONS OF LIABILITY

Nothing

15.

contained

in

this

Consent

Decree

shall

be

considered an admission by the Settling Defendantr or a finding
by

the

Plaintiffs

or

by

the

Court,

of

any

wrongdoing

or

liability on the Settling Defendant 1 S part.
X.
16.

EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
Nothing in this Consent Decree shall be construed to

create

any rights

person

not

a

in 1

Party

to

or grant
this

any cause

Consent

14

of

Decree.

action to,
The

any

preceding

sentence shall not be construed to waive or nullify any rights
that any person not a signatory to this Consent Decree may have
under applicable law.
17.

Settling

Defendant

expressly

reserves

and

causes

of

action

that

concerning any matter 1

the

Settling

transactionr

rights,

claims,

including any right to contribution, defenses,

all

demands,

Defendant

or occurrence

may

have

against any

person not a Party to this Consent Decree.
18.

When entered/

this

Consent Decree will

constitute a

within the meaning of N.J. S .A.

judicially approved settlement

58:10-23.1lf.a. (2) (b) and 42 U.S.C.

9613(f) (2)

§

for the purpose

of providing contribution protection to the Settling Defendant
from contribution actions related to the causes of action pled
in

the

Complaint.

The

Parties

agree,

Consent Decree this Court finds/
entitled,
Consent

upon
Decree,

fully
to

and

by

entering

this

that the Settling Defendant is

satisfying
protection

its
from

obligations
contribution

under

this

actions

or

claims for matters addressed in the Complaint and this Consent
Decree.
In

19.

order

for

the

Settling

under

cqntribution

actions

or

claims

Consent Decree/

copy

Consent

the

draft

Decree

15

obtain
from

for

Complaint and this
of

to

58:10-23.11f.a. (2) (b)

N.J.S.A.

protection

Defendant

matters

addressed

in

the

the Plaintiffs published a
on

Plaintiffs'

website

and

published

notice

of

this

Consent

Decree

in

the

New

Jersey

Register, and arranged for notice 1 as described_ in the following
paragraph,

to the other parties in this case and to the other

potentially

responsible

58:10-23.11e2.

parties

in

accordance

with ·N.J.S.A.

Such notice included the following information:

a.

the caption of this casei

b.

the name of the Settling Defendant;

c.

a summary of the terms of this Consent Decree; and
that a

d.

copy of the draft Consent Decree is available

on the Plaintiffs 1 website.
In fulfillment of N.J.S.A.

20.

58:10-23.11e2,

the Parties

have provided written notice of this Consent Decree to all other
parties in the case and to other potentially responsible parties
by:
a.

Duke

sending a

letter

to

liaison defense counsel

and

serving a copy of such letter on counsel of record in the above
captioned litigation via LexisNexis File and Serve; and
b. Duke publishing notice in the following newspapers:
i. Asbury Park Press;
ii. Atlantic City Press;
iii. Bergen Record;
iv. Burlington County Timesi
v. New Jersey Herald;
vi. South Jersey Times; and

16

vii. Star Ledger; and
c.

Plaintiffs

Register
Office

Notice

of

via

Natural

public

distributing

can

the

Site

Resource

access

a

copy

Remediation

Restoration's
at

of

the

New

Jersey

Program's
listserv

and

the

which

the

http://nj.gov/dep/srp

and

http://nj.gov/dep/onrr respectively.
This notice is deemed compliant with the notice requirement of
N.J.S.A. 58:10-23.11e2.

The Plaintiffs will submit this Consent Decree to the

21.

Court

for

result

entry pursuant

of

the

notice

to

of

Paragraph 35
this

Consent

below unless,
Decree

as

pursuant

a
to

Paragraphs 19 and 20 above,

the Plaintiffs receive information

that

considerations

discloses

facts

or

that

indicate

to

Plaintiffs, in their sole discretion, that the Consent Decree is
inappropriate, improper or inadequate.
In

22.

any

subsequent

proceeding initiated by
recovery of costs,

the

administrative

Plaintiffs

and/or damages,

for

or

judicial

injunctive

relief,

or other appropriate· relief

not alleged in the Complaint,

the Settling Defendant shall not

assert,

any defense or claim based upon

the

and may not maintain,

principles

however,

that

of

the

entire

nothing

in

controversy
this

enforceability of this Consent Decree.

17

doctrine;

Paragraph

provided,

affects

the

XI .

23.

Nothing

in

GENERAL PROVISTONS

this

Consent

Decree

shall

be

deemed

to

constitute preauthorization of a claim against the Spill Fund
within the meaning of N.J.S.A. 58:10-23.11k or N.J.A.C. 7:1J.
24.
to

The Plaintiffs enter into this Consent Decree pursuant
the

police

powers

of

the

State

of

New

Jersey

for

the

enforcement of the laws of the State and the protection of the
public health and safety and the environment.

All obligations

imposed upon the Settling Defendant by this Consent Decree are
continuing regulatory obligations pursuant to the police powers
of the State of New Jersey.
25.

No

payment

owed

or

made

pursuant

Decree is intended to constitute a debt,

to

this

Consent

damage claim, penalty

or other claim that may be limited or discharged in a bankruptcy
proceeding.
This Consent Decree.shall be governed and interpreted

26.

under the laws of the State of New Jersey.
27.

If

any

provision

application

thereof

to

extent,

invalid

or

be

any

of

this

person

Consent
or

unenforceable,

Decree

or

the

circumstance,

to

any

the

remainder

of

this

Consent Decree or the application of such provision to persons
or circumstances other than those as to which it is held invalid
or

unenforceable,

shall

not

be

18

affected

thereby

and

each

provision of this Consent Decree shall be valid and enforced to
the fullest extent permitted by law.

XII.
28.

EFFECTIVE DATE

The effective date of this Consent Decree shall be the

date upon which this Consent Decree is entered by the Court.

XIII.
29.

RETENTION OF JURISDICTION

This Court retains jurisdiction over both the subject

matter of this Consent Decree and the Parties for the duration
of the performance of the terms and provisions of this Consent
Decree for the purpose of enabling any of the Parties to apply
to the Court at any time for such further order, direction, and
relief as may be necessary or appropriate for the construction
or modification of

this

Consent

Decree,

or

to

effectuate

or

enforce compliance with its terms.

XIV.
30.

The

COOPERATION AND DOCUMENT RETENTION

Settling

Defendants

agree

to

make

employees available to testify at or prior to trial

current
for

this

case only without the need to serve subpoenas so long as such
employees are only asked to appear where they would otherwise be
subj ~ct

to a proper subpoena and Plaintiffs pay the

such employees'

costs of

travel for the purpose of providing testimony.

19

With respect to former employees,
facilitate

the appearance of

prior to trial,

travel

such witnesses

to testify at

they would otherwise· be

Plaintiffs pay

the

costs

subject

of . such

consents

to

appear.

The

to a

former

for the purpose of providing testimony 1

employee

or

so long as such former employees are only asked

to appear where
subpoena,

Settling Defendants agree to

Settling

proper

employees'

and the former
Defendants

will

provide to Plaintiffs last known addresses of former employees
that are not willing to voluntarily testify unless prohibited by
law or contract from doing so.

The Settling Defendant further

agrees to provide documents in response to reasonable requests
by Plaintiffs without requiring the use of a subpoena.
31.

The

pr~visions

of

Settling
the

Defendant

March

15,

2005

shall
Order

comply
for

with

Preservation

the
of

Documents entered in this matter.

XV.
32.

MODIFICATION

This Consent Decree may be modified only by written

agreement between the Parties approved by the Court.
33.

. Nothing in this Consent Decree shall be deemed to alter

the Court's power to enforce, supervise or approve modifications
to this Consent Decree.

XVI.

ENTRY OF THIS CONSENT DECREE

20

The Settling Defendant consents to the entry of this

34.

Consent Decree without further notice after the comment period
specified in Paragraphs 19·and 20 above.
Upon

35.

conclusion

of

the

Plaintiffs'

review

of

any

public comment received as a result of the notice desoribed in
Paragraphs 19 and 20 above, the Plaintiffs shall promptly submit
this Consent Decree to the Court for entry.
36 .
this

If for any reason the Court should decline to approve
Consent Decree in the

form presented,

this

agreement

is

voidable at the sole discretion of any Party and the terms of
the

agreement may not

be used

as

evidence

in any litigation

among the Parties or third parties.
37.

payment

Within
as

set

thirty
forth

days
in

of

Seqtion

request that the Court dismiss

the
V

Plaintiffs'

receipt

above, . Plaintiffs

of

shall

this action as to the Settling

Defendant with prejudice pursuant to Fed. R. Civ. P. 41(a) (2).

XVII.
38.

Each

SIGNATORIES/SERVICE

undersigned

representative

of

a

Party

to

this

Consent Decree certifies that he or she is authorized to enter
into the

terms and conditions of

this Consent Decree,

and to

execute and legally bind such Party to this Consent Decree.
3 9.

This

Consent Decree

may be

signed and dated in any

number of counterparts, each of which shall be an original, and

21

By:
Anthony J. Farro, Director
Publicly Funded Site Remediation
Site Remediation Program

Dated:

Boornazian, Assistant
Commissioner
Natural & Historic Resources
Dated:

NEW JERSEY SPILL COMPENSATION FUND

By:
Anthony
o, Administrator
New Jersey Spill Compensation Fund
Dated:

John J. Hoffman,
Acting Attorney General of New
Jersey
Attorney for Plaintiffs

By:
Gwen Farley
Deputy Attorney General
Dated:

23

By: --·-·········-------Anthony J. Farro, Director
Publicly Funded Site Remediation
Site Remediation Program

Dated;

By:
Rich Boornazian, Assistant
Commissioner
Natural & Historic Resources
Dated:

NEW JERSEY SPILL COMPENSATION FUND

By: _. . . . . .-.. .- . - - - - - - - - - - - - - - - .
Anthony J. Farro, Administrator
New o·ersey Spill Compensation Fund
Dated:

John J. Hoffman,
Acting Attorney General of New
Jersey
Attorney for Plaintiffs

Dated:

23

Duke Energy Merchants, LLC

By:

------------~--~--------------

David J. atcher, President
Duke Energy Merchants, LLC

Dated:
Person or Entity Authorized to Accept Service on Behalf of
Duke Energy Merchants, LLC solely and exclusively with respect
to this Consent Decree and for no other purpose:

Steven J. Moss
Associate General Counsel
Duke Energy Business Services LLC
1000 E. Main Street
Plainfield, IN 46168
I
:

With a copy to:

24

I

APPENDIX A

[SITE LIST]

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25