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 11 of 30

in this JCO to the extent that Getty Properties Corp.

would be

included in such definition.
"Upstream

Activities"

sale,

blending,

supply,

means

the

manufacture,
exchange,

distribution,

refining,
transfer,

purchase, trading, marketing, and/or branding of MTBE or gasoline
with MTBE. Upstream Activities do not include a discharge of MTBE
or gasoline with MTBE at or from a facility, as defined by N.J.A.C.
7:lE-1.6, in New Jersey that occurs at a time that the facility is
owned,

operated,

or controlled by a Settling Defendant while the

Settling

Defendant

blending,

sale,

is

engaged

supply,

in

the

manufacture,

distribution,

exchange,

refining,
transfer,

purchase, trading, marketing, and/or branding of MTBE or gasoline
with MTBE.

V.
5.

(a)

SETTLING DEFENDANTS' COMMITMENTS

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.
(b) The amount specified in Paragraph 5(a) above shall be paid by
wire

transfer pursuant

to

instructions

provided by Plaintiffs.

Notice of payment shall be emailed to: John Sacco, Director/State

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Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 12 of 30

Forester,

New Jersey Department of Environmental

[e-mail]

and

to

Gary

Wolf,

Protection at

Section

Chief,

Environmental Enforcement Section, Division of Law, Department of
Law and Public Safety at Gary. Wolf@law. nj oag. gov or such other
persons as Plaintiffs may designate.

VI. PLAINTIFFS' COVENANTS AND RELEASES
6.

In consideration of,

(a)

and upon receipt of,

the payment

required in Section V above, and except as otherwise provided in
Section

VII

below,

the

covenant not to sue,
administrative,

Plaintiffs

fully

and

forever

release,

and agree not to otherwise take judicial,

or other action against the Settling Defendants

pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act
Control Act,

("CERCLA"), the Spill Act, the Water Pollution

or any other statute or regulation for recovery of

Damages, Past Cleanup and Removal Costs, injunctive relief sought
in the Complaint,
fees,

and

other

or attorneys'
litigation

the sites identified
attached

hereto

Exhibit "A."

The

and

by

the

fees,

costs

sought

Plaintiffs

incorporated

liability

consultants'

of

any

and experts'

in

the

in

NJMTBE-000-030608,

herein

by

non-Settling

Complaint

reference
Defendant

for

as
is

unaffected by this release and covenant not to sue except as set
forth in the agreed stipulation, attached hereto as Exhibit "B."
The foregoing release and covenant not to sue does not preclude

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Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 13 of 30

Plaintiffs
relief

from

seeking: (i)

sought

(ii) attorneys'

in
fees,

the

equitable,

Complaint

consul tan ts'

including

related

and experts'

to

injunctive,
Remediation,

fees,

and other

litigation costs sought in the Complaint related to a particular
Remediation and not generated in connection with the preparation
of the Complaint or any of the proceedings in the Multi-District
Litigation, or (iii)
Defendant's Site,
liability at

Remediation of any discharge at or from any

provided the Settling Defendant's Remediation

such Defendant's

Site is

not based solely on its

Upstream Activities.
(b)

Notwithstanding

any

other

provision

of

this

consideration of, and upon receipt of, the payment(s)

JCO,

in

required in

Section V above, the Plaintiffs fully and forever release, covenant
not

to

sue,

and

agree

not

to

otherwise

take

judicial,

administrative,

or other action against the Settling Defendants

for Plaintiffs'

causes of action based upon Settling Defendants'

alleged liability

(i)

under the common law with respect to MTBE

discharges that threaten or affect the waters of New Jersey;

(ii)

in equity (except as reserved in Paragraphs 6(a), 10, 11, 21, 23,
and 24)
the

with respect to MTBE discharges that threaten or affect

waters

of

New

Jersey;

(iii)

under

theories

of

products

liability with respect to MTBE discharges that threaten or affect
the waters of New Jersey; or (iv) under any applicable federal or
state statute, regulation or order where such liability is premised
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Case 1:08-cv-00312-VSB-DCF Document 593 Filed 02/27/20 Page 14 of 30

upon

Settling

Defendants'

Upstream

Activities

prior

to

the

effective date of the JCO.
7.

The covenants and releases contained in this Section VI shall

take effect upon the Plaintiffs receiving the payment that GPMI
and the Lukoil Defendants are required to make pursuant to Section
V above, in full, and in compliance with the terms of this JCO.
8.

The covenants and releases contained in this Section VI extend

only to Settling Defendants and not to any other defendant, party,
person, or entity.
9.

The covenants and releases contained in this Section VI do

not pertain to any matters other than those expressly stated.

VII. PLAINTIFFS' RESERVATIONS
10.

Except

precludes
other

as

set

forth

Plaintiffs

action

against

from
any

in

Section VI,

taking

nothing

judicial,

Settling

in

this

administrative,

Defendant

to

require

JCO
or
that

Settling Defendant to perform Remediation of any discharge at or
from that Settling Defendant's Site.
11.

The Plaintiffs reserve, and this JCO is without prejudice to,

all rights against the Settling Defendants except those expressly
released or for which there is a covenant not to sue in Section
VI.

This reservation of rights includes, but is not limited to,

the following:

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a. claims

based

on

a

Settling

Defendant's

failure

to

satisfy any term or provision of this JCO;
b. liability arising from any Settling Defendant being in
any way responsible for any hazardous substance other
than MTBE that is discharged into or threatens the waters
and/or soils of New Jersey.

To the extent MTBE is also

present along with another hazardous substance(s) in the
same

location

(e.g.,

the

same water and/or

soil)

and

during the same time period, Settling Defendants shall
receive the releases and covenants not to sue set forth
in Section VI above for the other hazardous substance(s)
coextensive in place and time with the MTBE, subject to
the obligations and reservations in this Section VII and
Section

XI

below, and

obligation

any)

(if

subject
to

to

the

potential

perform restoration

for

substance(s) other than MTBE to pre-discharge conditions
(primary restoration) but only if the restoration of the
groundwater
restored
hazardous

containing

the

the

groundwater
substance(s)

concentration(s).

Settling

MTBE
by

would

not

removing
to

Defendants

have
such

also
other

pre-discharge
shall

not

be

entitled to any release, covenant not to sue, or offset
or reduction in liability or damages for any hazardous
substance other than MTBE pursuant to this JCO where any
15