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

Filing 4625

MEMORANDUM OF LAW in Opposition re: (609 in 1:08-cv-00312-VSB-DCF) MOTION to Dismiss . . Document filed by New Jersey Department of Environmental Protection, The Commissioner of the New Jersey Department of Environmental Protection. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 part 1 of 4, # 3 Exhibit 2 part 2 of 4, # 4 Exhibit 2 part 3 of 4, # 5 Exhibit 2 part 4 of 4, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7)Filed In Associated Cases: 1:00-cv-01898-VSB, 1:08-cv-00312-VSB-DCF.(Kaufmann, Leonard)

Exhibit 1

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION; THE
COMMISSIONER OF THE NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION; and THE ADMINISTRATOR
OF THE NEW JERSEY SPILL
COMPENSATION FUND,

Civil Action No. 3:15-cv-6468(FLW-LHG)
CONSENT ORDER AS TO LIVINGSTON
SITE

Plaintiffs,
v.
ATLANTIC RICHFIELD CO., et al.,
Defendants.
This matter, having been opened to the Court by Plaintiffs
New Jersey Department of Environmental Protection (“NJDEP”), the
Commissioner of the NJDEP, and the Administrator of the New Jersey
Spill

Compensation

Fund

(“Administrator”)

(collectively,

“Plaintiffs”), in their named capacity and as trustee of the
natural

resources

Corporation

and

of

New

Jersey,

ExxonMobil

and

Oil

Defendants

Corporation

Exxon

Mobil

(collectively,

“ExxonMobil”); and those parties, being hereinafter referred to
individually as a “Party” and collectively as the “Parties,” having
amicably resolved their dispute regarding the Livingston Site
before trial hereby agree as follows:

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I.
1.

LITIGATION BACKGROUND

Plaintiffs initiated this action on or around June 28,

2007 by filing a complaint against ExxonMobil and other defendants
in the Superior Court of the State of New Jersey, Mercer County,
Docket MER-L-1622-07.

The matter 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 (VSB)
(“Multi-District Litigation”).

There was a remand of nineteen

trial sites to the United States District Court for the District
of

New

Jersey,

Civil

Action

No.

3:15-cv-6468

(FLW-LHG)

(the

“Remanded Litigation”); the remainder of the case continues in the
Southern District of New York.
2.
Fifth

Plaintiffs filed amended complaints; the latest was the
Amended

Complaint,

filed

September

28,

2018

(the

“Complaint”).
3.

Plaintiffs’

Complaint

includes

a

claim

resource damages (“NRD”), including restoration.

for

natural

Specifically,

the Complaint includes statutory claims under the New Jersey Spill
Compensation

and

Control

Act,

N.J.S.A.

58:10-23.11

to

-23.24

(“Spill Act”), the New Jersey Water Pollution Control Act, N.J.S.A.
58:10A-1 to -20 (“WPCA”), as well as common law claims for products
liability, negligence and public nuisance. The Complaint also

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included a claim for trespass.

This claim has been dismissed, but

Plaintiffs reserve their appellate rights as to this claim.
4.

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. § 745, et seq., which
expressly authorized the removal of legal actions related to
allegations

involving

methyl

tertiary

butyl

ether

(“MTBE”)

contamination, and then assigned to the United States District
Court for the Southern District of New York as part of the MultiDistrict Litigation.
5.

As part of the Multi-District Litigation, the United

States District Court for the Southern District of New York
instituted a “focus site” approach to the Litigation designed to
prepare a discrete number of sites for an initial trial.

Pursuant

to this “focus site” approach, 20 sites were selected for trial,
with

ten

sites

each

including ExxonMobil.

selected

by

Plaintiffs

and

Defendants,

After dismissals and settlements, only four

trial sites remain, and the only remaining trial site for which
plaintiffs seek damages from ExxonMobil is the Livingston Site.
6.

Prior to 2011, ExxonMobil was conducting investigation

and other remediation at the Livingston Site under the direction
and

supervision

investigating

of

and

NJDEP.
remediating

Since
the

2011,

ExxonMobil

Livingston

Site

has

been

under

the

direction and supervision of the LSRP, as defined herein.

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7.

The LSRP at the Livingston Site is required to comply

with all remediation statutes and rules and utilize NJDEP guidance
materials when making remediation decisions.
8.

NJDEP represents that the data collected by the LSRP

and provided to the NJDEP demonstrates that there has been no, and
ExxonMobil represents that it is not aware of any, discharge of
Hazardous Substances at the Livingston Site since August 31, 2015.
II.
9.

PARTIES’ OBJECTIVES

ExxonMobil, as the former owner of the Property and the

underground storage tanks at the Property, has been performing its
remediation

obligations

at

the

Livingston

Site

under

the

applicable laws and technical regulations, which have contributed
to restoration at the Livingston Site.
10.

The Parties recognize restoration must take into account

the remediation efforts at the Livingston Site.
11.

SRWMP and ONRR, as a division and a bureau within NJDEP

that oversee remediation and restoration, respectively, shall
coordinate

to

avoid

imposing

duplicative

remediation

and

restoration obligations on ExxonMobil at the Livingston Site.
Accordingly,

agreement

has

been

reached

between

the

Parties

regarding the procedure for jointly evaluating and conducting
remediation and restoration at Livingston.
12.

ExxonMobil’s

full

compliance

with

the

terms

and

procedures of this Consent Order shall constitute satisfaction of

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its remediation and restoration obligations under all applicable
laws for discharges that occurred prior to the Effective Date at
the Livingston Site.
With the agreement and consent of the Parties, it is hereby
ORDERED that the Consent Order is approved as follows:
III.
13.

PARTIES BOUND

This Consent Order applies to, and is binding upon, the

Parties.
IV.
14.

DEFINITIONS

Unless otherwise expressly provided, the terms used in

this Consent Order that are defined in the Spill Act, or in the
regulations promulgated pursuant to the Spill Act, shall have their
statutory or regulatory meaning.

Whenever the terms listed below

are used in this Consent Order, the following definitions shall
apply:
“Claims” shall mean any and all actions, claims, causes
of

action,

crossclaims,

counterclaims,

third-party

claims,

interventions, demands, suits, liens, judgments, duties, rights,
debts, obligations of any kind, whatsoever, in law or in equity,
past, present or future, whether under state or federal law or
under rule, regulation or administrative order, whether known or
unknown, suspected or unsuspected, whether legal, equitable, or
statutory, manifested or not manifested, barred or not barred by
principles of collateral estoppel or res judicata and whether

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asserted,

could

have

been

asserted

Complaint, arising from discharges of

or

not

asserted

in

the

Hazardous Substances that

occurred prior to the Effective Date of this Consent Order at the
Livingston Site.

Claims shall also specifically include all

product liability causes of action related to MTBE including claims
of manufacturing defect, design defect and failure to warn.
“Commissioner” shall mean the Commissioner of the NJDEP.
“Complaint”

shall

mean

Plaintiffs’

Fifth

Amended

Complaint in this Litigation.
“Consent Order” shall mean this Consent Order.
“Day” shall mean a calendar day unless expressly stated
to be a Working Day.

“Working Day” shall mean a day other than a

Saturday, Sunday, or State holiday.

In computing time under this

Consent Order, 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.
“Defendants” shall mean each of the defendants named in
the Complaint in this Litigation.
“ExxonMobil” shall mean Exxon Mobil Corporation, a New
Jersey corporation with its principal place of business at 5959
Las

Colinas

Boulevard,

Irving,

Texas,

and

ExxonMobil

Oil

Corporation, a New York corporation with its principal place of
business at 5959 Las Colinas Boulevard, Irving, Texas, and their
parent companies, officers, directors, employees, predecessors,

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predecessors

in

interest,

parents,

successors,

successors

in

interest and subsidiaries, except that no other party named as one
of the other Defendants in the Complaint shall be considered a
related entity of ExxonMobil.
“Hazardous Substances” shall have the same meaning as
N.J.S.A. 58:10-23.11b. of the Spill Act and shall include, but
shall not be limited to, MTBE.
“Litigation”

shall

mean

the

Remanded

Litigation,

captioned New Jersey Department of Environmental Protection, et
al. v. Amerada Hess Corp., et al., C.A. Nos. 3:07-5284 and 3:15cv-06468 (FLW-LHG), the Multi-District Litigation, captioned In
Re:

Methyl

Tertiary

Butyl

Ether

(“MTBE”)

Products

Liability

Litigation, MDL No. 1358 (SDNY)(VSB).
“Livingston

Site”

or

“Livingston”

shall

mean

ExxonMobil’s former service station #31310, located at 38 East
Mount Pleasant Avenue, Livingston, Essex County, New Jersey (the
“Property”) and includes all other areas to which any Hazardous
Substance discharged on the Property has migrated.
“LSRP”
Professional

shall

retained

mean
by

the

Licensed

ExxonMobil

for

the

Site

Remediation

Livingston

Site

pursuant to the Administrative Requirements for the Remediation of
Contaminated Sites, N.J.A.C. 7:26C-1.3.
“MTBE” shall mean methyl tertiary butyl ether, neat or
as a part of gasoline or as a contaminant of other fuel, and the

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degradation

byproducts

of

commercial

grade

MTBE,

including

tertiary butyl alcohol (“TBA”).
“NJDEP”

shall

mean

the

New

Jersey

Department

of

Environmental Protection, including the ONRR and SRP.
“ONRR”

shall

Restoration

of

the

consultants

whose

mean

NJDEP.
opinion(s)

the

Office

ONRR

of

shall

ONRR

Natural

include

deems

Resource

any

necessary

outside
to

the

restoration of the Livingston Site.
“Paragraph” shall mean a portion of this Consent Order
identified by an Arabic numeral or an upper case letter.
“Plaintiffs”
Commissioner,

and

the

shall

mean

plaintiffs

Administrator

of

the

the
New

NJDEP,
Jersey

the

Spill

Compensation Fund, including in their capacities as described in
paragraphs 14 to 18 of the Complaint, and any successor department,
agency, or official.
“SRWMP”

shall

mean

the

Site

Remediation

and

Waste

Management Program of NJDEP.
V.
15.

PLAINTIFFS’ RELEASES AND RESERVATIONS

Plaintiffs hereby forever release, covenant not to sue,

and dismiss with prejudice their Claims in this Litigation.
16.

The release referenced in Paragraph 15 of this Consent

is limited as follows:

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a. Plaintiffs reserve all rights to pursue Claims based on
ExxonMobil’s failure to satisfy any term or provision of this
Consent Order;
b. Plaintiffs reserve all rights to prosecute actions against
ExxonMobil concerning criminal liability; and
c. Plaintiffs reserve all rights to pursue Claims concerning
ExxonMobil’s liability for any violation of federal or state
law that occurs after the Effective Date of this Consent
Order.
17.

This Court retains jurisdiction to enforce the terms of

this Consent Order.
VI.
18.

ExxonMobil

PARTIES’ COVENANTS

agrees

to

continue

to

remediate

the

Livingston Site in accordance with the Brownfield and Contaminated
Site

Remediation

Remediation

Act,

Reform

N.J.S.A.

Act,

58:10B-1

N.J.S.A.

to

58:10C-1

-31,

the

Site

to

-29,

the

Administrative Requirements for the Remediation of Contaminated
Sites, N.J.A.C. 7:26C, the Remediation Standards, N.J.A.C. 7:26D,
and the Technical Requirements for Site Remediation, N.J.A.C.
7:26E.

These actions to remediate pursuant to these requirements

are referred to as “Remediation” for purposes of this Consent
Order.
19.

In

addition

to

continued

Remediation

pursuant

to

Paragraph 18, ExxonMobil shall monitor the conditions and perform

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additional

actions

at

the

Livingston

Site

to

ensure

that

restoration will be achieved as determined by ONRR and consistent
with the requirements set forth in any then applicable New Jersey
statutes, NJDEP regulations, NJDEP technical guidance, and case
law.

For the purposes of this Consent Order, actions to ensure

that restoration will be achieved are referred to as “Restoration.”
In the event NJDEP determines that Restoration is not being
achieved at the Livingston Site based on the current activities
at the Site, ExxonMobil shall confer with ONRR and shall implement
additional Restoration, to the extent practicable, as directed by
NJDEP, subject to the dispute resolution provisions set forth in
Section VII below.
20.
18

and

Any Remediation and Restoration pursuant to Paragraphs
19,

duplicative

respectively,
tasks,

shall

achieve

be

conducted

efficiencies,

so

and

as

to

avoid

ensure

that

Remediation and Restoration are both ultimately achieved.
21.

Within 60 days of the entry of this Consent Order,

ExxonMobil will meet with ONRR to discuss any immediate Restoration
(if any) to be undertaken.
22.

On no less than an annual basis, ExxonMobil shall provide

SRWMP and ONRR with an update of all Remediation and/or Restoration
data collected at the Livingston Site.
23.

ExxonMobil shall comply with all applicable statutes and

regulations not specifically addressed herein.

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VII.
24.

In

the

DISPUTE RESOLUTION

event

the

Parties

are

unable

to

resolve

disagreements regarding the work described in this Consent Order,
any Party may request in writing an in-person, technical meeting
to discuss the disputed issue(s).
25.

In the event the Parties are unable to resolve all

remaining disputes by way of informal dispute resolution under
Paragraph 24, any Party may refer remaining issues in dispute to
NJDEP’s Office of Dispute Resolution upon seven days written notice
to the other Party.
26.

Any

Party

may

submit

a

three-page,

single-spaced,

statement of dispute to the Commissioner no sooner than 30 days
after an in-person Alternative Dispute Resolution meeting with
NJDEP’s Office of Dispute Resolution.

The statement must include

a certification that it is the opinion of the Party bringing the
dispute to the Commissioner that the process in NJDEP’s Office of
Dispute

Resolution

is

no

longer

towards resolving the dispute.

providing

further

assistance

Within 14 days after the statement

of dispute is submitted to the Commissioner, the other Party may
submit a three-page, single-spaced, response.

The Commissioner’s

Office, sua sponte or at the request of one or more of the Parties,
may establish any further procedures it deems necessary to properly
inform the Commissioner so that she has sufficient information to
make an informed decision.

The parties agree that any decision

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the Commissioner renders pursuant to this Paragraph is binding on
the Parties and not subject to appeal. The Commissioner’s decision
pursuant to this Paragraph shall be made in writing.
VIII.
27.

EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
This Consent Order shall apply to the Livingston Site

only.
28.

Nothing in this Consent Order shall be construed to

create any rights in, or grant any cause of action to, any person
not a party to this Consent Order.

The preceding sentence shall

not be construed to waive or nullify any rights that any person
not a signatory to this Consent Order may have under applicable
law.
29.

ExxonMobil expressly reserves all rights, including, but

not limited to, any right to indemnification and contribution,
defenses, claims, demands, and causes of action that ExxonMobil
may

have

concerning

any

matter,

transaction,

or

occurrence,

whether or not arising out of the subject matter of the Complaint,
against any person not a party to this Consent Order.
30.

When entered, this Consent Order shall constitute a

judicially approved settlement within the meaning of N.J.S.A.
58:10-23.11f.a.(2)(b) and 42 U.S.C. § 9613(f)(2) and will resolve
the liability of the ExxonMobil to Plaintiffs for the purpose of
providing contribution protection to ExxonMobil from contribution
actions under Comprehensive Environmental Response, Compensation,

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and Liability Act (“CERCLA”), the Spill Act, the Joint Tortfeasors
Contribution

Law,

N.J.S.A.

2A:53A–1

et

seq.,

the

Comparative

Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 or any other statute,
regulation or common law principle related to the causes of action
pleaded in the Complaint or matters addressed in this Consent
Order, and for any capacity under which Plaintiffs sued related to
the Livingston Site. The Parties agree, and by entering this
Consent Order this Court finds, ExxonMobil is entitled, upon fully
satisfying its obligations under this Consent Order, to protection
from

contribution

actions

pursuant

to

Sections

113(f)(2)

of

CERCLA, 42 U.S.C. §§ 9613(f)(2), the Spill Act, N.J.S.A. 58:1023.11f.a.(2)(b), and any other statute, regulation, or common law
principle that provides contribution rights against ExxonMobil
with regard to the subject matter of the Complaint related to the
Livingston Site or matters addressed in this Consent Order.
31.

In accordance with N.J.S.A. 58:10-23.11e2 the Plaintiffs

published a copy of the draft Consent Order on Plaintiffs’ website,
published notice of this Consent Order in the New Jersey Register,
and arranged for notice, as described in the following paragraph,
to

other

parties

responsible

in

parties.

this

case

Such

and

to

notice

information:
a. the caption of this case;
b. the name of the Settling Defendant;

the

other

included

the

potentially
following

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c. a summary of the terms of this Consent Order;
d. that a copy of the draft Consent Order is available on DEP’s
website; and
e. that there are sixty (60) days to comment on the proposed
Consent Order.
32.

In fulfillment of N.J.S.A. 58:10-23.11e2 the Parties

have provided written notice of this Consent Order to all other
Defendants

remaining

in

the

case

and

to

other

potentially

responsible parties by:
a. ExxonMobil 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. ExxonMobil publishing notice in the following newspapers:
i. Asbury Park Press;
ii.

Atlantic City Press;

iii.

Bergen Record;

iv.

Burlington County Times;

v. New Jersey Herald;
vi.

South Jersey Times; and

vii.

Star Ledger; and

c. The Plaintiffs distributing a copy of the New Jersey Register
Notice via the Site Remediation Program’s and the Office of
Natural Resource Restoration’s websites, which the public can
access

at

http://nj.gov/dep/srp/legal/

and

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http://nj.gov/dep/nrr/settlements/index.html,

respectively.

This notice is deemed compliant with the notice requirement
of N.J.S.A. 58:10-23.11e2.
33.

Plaintiffs will submit this Consent Order to the Court

for entry pursuant to Paragraph 45 below unless, as a result of
the notice of this Consent Order pursuant to Paragraphs 31 and 32
above, the Plaintiffs receive information that discloses facts or
considerations

that

indicate

to

Plaintiffs,

in

their

sole

discretion, that the Consent Order is inappropriate, improper, or
inadequate.
IX.
34.

NO FINDINGS OR ADMISSIONS OF LIABILITY

Nothing

contained

in

this

Consent

Order

shall

be

considered an admission by ExxonMobil, or a finding by Plaintiffs
or this Court, of any wrongdoing or liability whatsoever on the
part of ExxonMobil at the Livingston Site.
X.
35.

GENERAL PROVISIONS

Plaintiffs enter into this Consent Order pursuant to 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

ExxonMobil

the
by

environment.
this

Consent

Any
Order

obligations
are

imposed

continuing

obligations pursuant to these police powers.

upon

regulatory

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36.

Nothing

in

this

Consent

Order

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.
37.

This Consent Order shall be governed by and interpreted

under the laws of the State of New Jersey.
38.

If any provision of this Consent Order or the application

thereof to any person or circumstance, to any extent, is held to
be invalid or unenforceable, (a) the parties hereto shall negotiate
in good faith a valid and enforceable provision as similar in terms
to such invalid or unenforceable provisions as may be possible and
(b)the remainder of this Consent Order 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 affected thereby
and each provision of this Consent Order shall be valid and
enforced to the fullest extent permitted by law.
XI.
39.

ACCESS TO INFORMATION

Upon receipt of a written request by one or more of

Plaintiffs, ONRR, and/or SRWMP, ExxonMobil shall submit or make
available

to

Plaintiffs,

ONRR,

and/or

SRWMP

all

information

ExxonMobil has concerning Remediation and/or Restoration at the
Livingston

Site,

including

data,

technical

records,

and

contractual documents.
40.

ExxonMobil

may

assert

any

applicable

claim

of

confidentiality or privilege for any information submitted to

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Plaintiffs,

ONRR,

ExxonMobil,

however,

confidentiality

and/or

SRWMP

agrees

claim

as

not

to

pursuant
to

data

assert

related

to

Paragraph

any
to

39.

privilege

Livingston

or

Site

conditions, sampling, or monitoring.
XII.
41.

MODIFICATION

This Consent Order may only be modified by written

agreement between the Parties with approval by this Court and
represents the entire integrated agreement between Plaintiffs and
ExxonMobil, and supersedes all prior negotiations, representations
or agreements, either written or oral, with respect to the subject
matter hereof.
42.

Nothing in this Consent Order shall be deemed to alter

this Court’s power to enforce, supervise, or approve modifications
to this Consent Order.
XIII.
43.

EFFECTIVE DATE

The Effective Date of this Consent Order shall be the

date upon which this Consent Order is entered by this Court.
XIV.
44.

ENTRY OF THIS CONSENT ORDER

The Parties consent to the entry of this Consent Order

without further notice after the comment period specified in
Paragraph 31.
45.

Upon conclusion of the public comment period specified

in Paragraph 31, Plaintiffs shall promptly submit this Consent
Order to this Court for entry.

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46.

If for any reason the Court should decline to approve

this Consent Order in the form presented, this Consent Order is
voidable at the sole discretion of any Party unless this Consent
Order is modified by agreement of the Parties and the terms of the
Consent Order not approved by the Court may not be used as evidence
in any litigation between the Parties.
XV.
47.

Each

SIGNATORIES/SERVICE

undersigned

representative

of

a

Party

to

this

Consent Order certifies that he or she is authorized to enter into
the terms and conditions of this Consent Order and to execute and
legally bind such Settling Party to this Consent Order.
48.

This Consent Order may be signed and dated in any number

of counterparts, each of which shall be an original, and such
counterparts shall together be one and the same Consent Order.
49.

ExxonMobil identifies in this paragraph an agent who is

authorized to accept service of process by mail on its behalf with
respect to all matters arising under or relating to this Consent
Order.

ExxonMobil agrees to accept service in this manner, and to

waive the formal service requirements set forth in the New Jersey
Rules of Court or Federal Rules of Civil Procedure, including
service of a summons.
For ExxonMobil:
Marc Rollo, Esq.

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Archer & Greiner P.C.
One Centennial Square
Haddonfield, NJ 08033
For NJDEP:
David Bean, Chief
Office of Natural Resource Restoration
NJDEP
Mail Code 501-04
P.O. 420
Trenton, NJ 08625-0420

50.

The Parties to this Consent Order agree that it was

negotiated fairly between them at arms' length and that the final
terms of this Consent Order shall be deemed to have been jointly
and equally drafted by them, and that the provisions of this
Consent Order 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).

SO ORDERED this

23rd day of

March

, 2021

.

_____________________________
Freda L. Wolfson, U.S.C.D.J.

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NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CONSENTS TO
THE FORM AND ENTRY OF THIS ORDER

By: ___________________________
David E. Haymes, Director
Division of Enforcement, Technical, and Financial Support
Dated: ____________________

By: _________________________
Raymond Bukowski, Assistant Commissioner
Natural & Historic Resources
2/26/21
Dated: ____________________

NEW JERSEY SPILL COMPENSATION FUND CONSENTS TO THE FORM AND ENTRY
OF THIS ORDER

By: ______________________________
David E. Haymes, Administrator
New Jersey Spill Compensation Fund
Dated: ____________________
Gurbir S. Grewal,
Attorney General of New Jersey
Attorney for Plaintiffs

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