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

Filing 4583

JUDICIAL CONSENT ORDER AS TO GETTY PETROLEUM MARKETING, INC.; LUKOIL AMERICAS CORPORATION individually and as f/k/a, d/b/a and/or successor in liability to Getty Petroleum Marketing Inc., Lukoil North America LLC and/or Lukoil OilCompany; LUKOIL NORTH AMERICA LLC, individually and as f/k/a, d/b/a and/or successor in liability to Getty Petroleum Marketing, Inc., Lukoil Americas Corporation and/or OAO Lukoil; LUKOIL OIL COMPANY, a/k/a OAO Lukoil a/k/a Public Joint Stock Company Oil Company LUKOIL a/k/a/PJSC Oil Company Lukoil, individually and as f/k/a, d/b/a and/or successor in liability to GettyPetroleum Marketing Inc., Lukoil Americas Corporation and/or Lukoil North America LLC; LUKOIL PAN AMERICAS, LLC ONLY:THEREFORE, with the consent of the Parties to this JCO,it is hereby ORDERED and ADJUDGED: Within fourteen (14) Days after the effective date of this JCO, GPMI and/or the Lukoil Defendants shall pay, or cause to be paid on their behalf, the Plaintiffs Twenty Two Million Dollars ($22,000,000.00) in full and complete satisfaction of Plaintiffs' claims that are released or for which a covenant not to sue is provided in Section VI of the JCO. Nothing contained in this JCO shall be considered an admission by the Settling Defendants, or a finding by the Plaintiffs or this Court, of any wrongdoing or liability on the Settling Defendants' part. Within thirty days of the Plaintiffs' receipt of payment as set forth in Section V above, Plaintiffs shall request that the Court dismiss this Complaint as to GPMI and the Lukoil Defendants with prejudice pursuant to Fed. R. Civ. P. 41 (a) (2). The Parties to this JCO agree that it was negotiated fairly between them at arms' length and that the final terms of this JCO shall be deemed to have been jointly and equally drafted by them, and that the provisions of this JCO therefore should not be construed against a Party to it on the grounds that the Party drafted or was more responsible for drafting the provision(s) and further set forth in this Order. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/27/2020) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit)Filed In Associated Cases: 1:00-cv-01898-VSB, 1:08-cv-00312-VSB-DCF (rro)

Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 6 of 30

liability

and

contained

in

asserted
the

various

Complaint.

defenses

GPMI

and

to

the

the

allegations

Lukoil

Defendants

represent that they do not, as of the effective date of this JCO,
utilize or knowingly distribute MTBE as an additive to gasoline in
New Jersey.
The

L.
recognize,

Parties

to

this

Judicial

Consent

Order

and this Court by entering this JCO finds,

(~JCO")
that the

Parties to this JCO have negotiated this JCO in good faith; that
the implementation of this JCO will allow the Parties to this JCO
to

avoid continued,

prolonged,

that this JCO is fair,

and complicated litigation;

and

reasonable, and in the public interest.

THEREFORE, with the consent of the Parties to this JCO,

it is hereby ORDERED and ADJUDGED:

II. JURISDICTION

1.

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,
expressly

authorized

the

42 U.S.C.

removal

of

§ 7545, et seq., which

legal

actions

related

to

allegations involving MTBE contamination, and then assigned to the
United States District Court for the Southern District of New York
as part of the Multi-District Litigation. Part of the litigation
was remanded to the United States District Court for the District
of New Jersey.

6

Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 7 of 30

2.

For purposes of approving and implementing this JCO, the

Parties to this
have

to

the

JCO waive all objections and defenses they may

jurisdiction of this

Court

and

the

United

States

District Court for the District of New Jersey over the Parties and
this JCO.

The Parties shall not challenge the jurisdiction of the

United States District Court for the Southern District of New York
or the United States District Court for the District of New Jersey
to enforce this JCO against the parties to this JCO.

III. PARTIES BOUND
This JCO applies to, and is binding upon, the Plaintiffs

3.

and

the

named

Settling

Defendants,

as

defined

below

( each,

a

"Party" and collectively, the "Parties").

IV. DEFINITIONS
Unless otherwise expressly provided, terms used in this

4.

JCO

that

are

defined

in

the

Spill

promulgated under the Spill Act,
regulatory meaning.

Act

or

in

the

regulations

shall have their statutory or

Whenever the terms listed below are used in

this JCO, the following definitions shall apply:
"Damages" shall mean all damages caused by discharges of
MTBE prior to the effective date of this JCO, whether or not known
or suspected to exist by Plaintiffs, that at any time threaten or
affect waters of New Jersey, including but not limited to natural
resource

damages,

sought

in

the
7

Complaint.

"Damages"

do

not

Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 8 of 30

include

Settling

Defendants'

obligation to

perform Remediation

except for those matters expressly released or for which a covenant
not to sue is granted in Paragraph 6(b)

Damages also do

below.

not include Past Cleanup and Removal Costs or Future Cleanup and
Removal

Costs,

except

for

those matters

expressly

released

in

Paragraph 6(b) below or for which a covenant not to sue is granted
in Paragraph 6(b) below.
"Day" shall mean a calendar day unless expressly stated to be
a

Working

Day.

"Working

Day"

shall mean

Saturday, Sunday, or State holiday.

a

day

other

than

a

In computing time under this

JCO, 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.
~Defendant's Site" means any site in New Jersey for which a
Settling Defendant is in any way responsible for MTBE discharged
at that site unless

such responsibility is based solely upon a

Settling Defendant's Upstream Activities.
"Future Cleanup and Removal Costs" shall mean all direct and
indirect costs of any kind for any purpose the Plaintiffs incur on
or after the effective date of this JCO, including oversight costs,
with respect to MTBE that threatens or affects the waters of New
Jersey

for

which

GPMI

responsible

under

any

or

any

of

applicable

regulation or order.
8

the

Lukoil

federal

or

Defendants
state

are

statute,

Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 9 of 30

"MTBE" shall mean methyl tertiary butyl ether, neat or as a
part

of

gasoline

degradation

or

as

byproducts

tertiary butyl alcohol

a
of

contaminant
commercial

("TBA").

of

other

grade

fuel,

MTBE,

and

the

including

In addition, MTBE shall include

TBA when TBA is present in MTBE gasoline.
"Paragraph" shall mean a portion of this JCO identified by an
Arabic numeral or an upper case letter.
"Past Cleanup and Removal Costs" shall mean all direct and
indirect costs of any kind for any purpose the Plaintiffs incurred
before the effective date of this JCO, including oversight costs,
with respect to MTBE that threatens or affects the waters of New
Jersey

for

which

GPMI

responsible

under

any

or

any

of

applicable

the

Lukoil

federal

or

Defendants
state

are

statute,

regulation or order.
"Plaintiffs" shall mean plaintiffs DEP, the Commissioner, and
the Administrator,

including in their capacities as described in

paragraphs 14 to 18 of the Complaint, and any successor department,
agency or official.

Plaintiffs hereby represent and warrant that

they have the power and authority to enter into this Agreement.
"Remediation" shall mean compliance with the Administrative
Requirements for the Remediation of Contaminated Sites, N.J.A.C.
7:26C, or any successor regulation, and all of the then-applicable
remediation standards pursuant to N.J.S.A. 58:lOB-12 and N.J.A.C.
7:26D, or any successor regulation.
9

Remediation does not include

Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 10 of 30

restoration

to

pre-discharge

conditions

(primary

restoration)

beyond what is necessary to comply with the applicable remediation
standards

pursuant

to

N.J.S.A.

58:lOB-12

and

N.J.A.C.

7:26D.

Remediation also does not include any liability to comply with the
Administrative Requirements

for the Remediation of Contaminated

Sites, N.J.A.C. 7:26C, or any successor regulation, and all of the
then-applicable remediation standards pursuant to N.J.S.A. 58:lOB/

12 and N.J.A.C.

7:26D,

or any successor regulation based solely

upon Upstream Activities,

and nothing herein shall be deemed an

admission by Settling Defendants that such liability can be based
on Upstream Activities.
"Section" shall mean a portion of this JCO identified by a
roman numeral.
"Settling
claims
was

made

Defendants"
against

means

insurance

GPMI

(including

policies

under

insured), LAC, LNA, PJSC LUKOIL, and LPA,

Plaintiffs'
which

GPMI

and each of GPMI's

and the Lukoil Defendants' related entities, as well as GPMI's and
the

Lukoil

employees,

Defendants'

parent

predecessors,

companies,

predecessors

officers,

in

directors,

interest,

parents,

successors, successors in interest and subsidiaries. No other party
named as

a

defendant
related

in

the

entity

Fifth Amended

considered

a

of

Defendants.

Getty Properties Corp.

GPMI

or

Complaint
any

of

shall

the

be

Lukoil

and its related entities are

specifically excluded from the definition of Settling Defendants
10