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

Filing 4637

AMENDED ANSWER to. Document filed by 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’ FOURTEENTH
AMENDED MASTER
ANSWER AND AFFIRMATIVE DEFENSES
Pursuant to the Master Answer agreement among the parties, CMO #6, and the Court’s
August 3, 2021 Opinion & Order (ECF No. 4627), 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., TRMI-H 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 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.
Further, Chevron Corporation was not at any time known as or a successor in liability to
Chevron U.S.A. Inc., Gulf Oil Corporation, Gulf Oil Corporation of Pennsylvania, Chevron
Products Company or Chevron Chemical Company.

1

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

2

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
at any time since December 1984. Texaco Inc. was not at any time known as or successor in
liability to Texaco Refining and Marketing Inc.
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 Getty-branded
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.

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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
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

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“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
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 its domestic operating assets were transferred to Chevron U.S.A. Inc.

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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
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

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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
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
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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
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.
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H.

Allegations Regarding MTBE and Groundwater
The Chevron Defendants deny that the release of MTBE in groundwater is widespread or

that the release of MTBE in groundwater is or was inevitable and foreseeable.

Further

answering, the Chevron Defendants state that at all times they have fully supported and
encouraged the safe handling and storage of gasoline in compliance with all laws, rules and
regulations pertaining to same, irrespective of the substances used in gasoline at the time. The
Chevron Defendants deny they are responsible for the release of MTBE, TBA or gasoline
containing MTBE or TBA, or for the presence of MTBE or TBA in groundwater.
The Chevron Defendants are without knowledge or information sufficient to form a belief
as to the truth of the allegations concerning the Ad Hoc Committee on MTBE or the American
Petroleum Institute’s Toxicology Committee.
The Chevron Defendants deny Plaintiffs’ allegations that they had knowledge of any
unique environmental harm attributable to the use of MTBE in gasoline.
The Chevron Defendants deny Plaintiffs’ allegations that MTBE posed an unreasonable
risk to groundwater. The Chevron Defendants deny that they concealed or conveyed partial or
incorrect information regarding the nature and impact of MTBE. The Chevron Defendants deny
that they possessed superior knowledge in comparison to governmental agencies with respect to
gasoline and MTBE. The Chevron Defendants deny that they breached any duties to Plaintiffs,
any government agency, gasoline handlers or the general public regarding MTBE or TBA or
gasoline containing MTBE or TBA.
The Chevron Defendants are without knowledge or information sufficient to form a belief
as to the truth of the allegations regarding reports on the incidence of MTBE releases in
groundwater by the United States Geological Survey.

9

The Report of the EPA Blue Ribbon Panel on MTBE speaks for itself, and therefore the
Chevron Defendants deny the allegations that purport to describe or characterize it.
The Chevron Defendants admit that in 2001 the EPA provided advance notice of its
intent to initiate a rulemaking pursuant to the Toxic Substances Control Act (“TSCA”) to
eliminate or limit the use of MTBE in gasoline, but this rulemaking was not completed. The
Chevron Defendants admit that certain legislatures or regulatory bodies passed laws or adopted
regulations to limit or eliminate the use of MTBE in gasoline, but others, including the federal
government and the Commonwealth of Pennsylvania, have not.
I.

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
paper illustrates.
J.

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

10

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 “the petroleum industry, including some of the
MTBE Defendants, lobbied Congress to adopt the Reformulated Gasoline Program (‘RFG
Program’) as part of the 1990 Amendments to the Clean Air Act,” the Chevron Defendants state
that many major oil companies in fact actively resisted the RFG Program’s requirement of
oxygen content levels.
K.

Allegations Regarding Representations About Testing Under the Toxic
Substances Control Act (TSCA) in the Late 1980s
The 1986 Notice published by the federal Interagency Testing Committee (“ITC”) speaks

for itself and therefore the Chevron Defendants deny the allegations that purport to describe or
characterize it.
The Chevron Defendants deny that they made any misrepresentations regarding MTBE
testing to the ITC or the EPA, directly or indirectly. The Chevron Defendants deny that they
obstructed health and environmental safety research concerning MTBE, or concealed
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information concerning MTBE and groundwater.

The Chevron Defendants deny that any

industry group or any other Defendant named in the MTBE lawsuits made any representations
about MTBE’s health or safety to the public or government officials on their behalf or with their
approval.
The Chevron Defendants further deny that representations or communications of other
Defendants or industry trade associations are evidence of any improper act, omission or breach
of any duty on the part of the Chevron Defendants.
L.

Allegations Regarding Requirements and Effects of the 1990 Clean Air Act
Amendments
The Chevron Defendants state that although the 1990 Clean Air Act Amendments

(“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
12

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.
M.

Allegations Regarding Representations About Gasoline With MTBE
The Chevron Defendants deny that they misrepresented the properties of MTBE to

Plaintiffs, any government agency, gasoline handlers or the public, or withheld information
about MTBE. The Chevron Defendants are without knowledge or information sufficient to form
a belief as to the truth of the allegations concerning when the public started to become aware of
potential risks associated with releases of gasoline containing MTBE.
The Chevron Defendants are without knowledge or information sufficient to form a belief
as to the truth of the allegations concerning representations made by George Dominguez in April
1987 to the Conference on Alcohols and Octane. The Chevron Defendants state that the 1996
pamphlet published and distributed by the OFA and other documents referenced and cited in the
complaints speak for themselves, and the Chevron Defendants deny the allegations that purport
to summarize and characterize these documents on that basis.
The Chevron Defendants deny they knew, or should have known, that MTBE was
difficult and costly to remediate. The Chevron Defendants state that they lack knowledge or
information sufficient to form a belief as to the truth of the allegations concerning what

13

alternatives gasoline handlers and the general public might have sought or the circumstances
under which gasoline handlers and the public might have demanded MTBE-free gasoline.
The Chevron Defendants deny they breached any duty to warn or deprived Plaintiffs, any
government agency, gasoline handlers or the public of any facts.
N.

Allegations Regarding the Use of MTBE in Gasoline After Creation of the
RFG Program
The Chevron Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations concerning the production of MTBE nationally, and the use and
concentrations of MTBE in gasoline by the petroleum industry after the creation of the RFG
Program. With regard to the allegations that Defendants sold gasoline with “elevated” or “high”
concentrations of MTBE, the Chevron Defendants deny the implication that the use of MTBE or
that a certain concentration of MTBE in their gasoline was illegal or improper.

Chevron

Defendants deny that MTBE became its “oxygenate of choice” and that it “decided to forego
safer oxygenates, such as ethanol.” The Chevron Defendants further state that, due to a myriad
of issues with ethanol, including complexities regarding its supply and transport, ethanol was not
available to satisfy all of the requirements of the RFG Program. Further answering, the Chevron
Defendants state that their products fully complied with all applicable state, commonwealth, and
federal requirements regarding fuel content.
O.

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

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
14

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.
P.

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.
Q.

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.
R.

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.
S.

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

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.

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T.

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, or that have been, supplied by plaintiffs will demonstrate, or have demonstrated,
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.
U.

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.
V.

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.
W.

Certain 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
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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.
X.

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.
Y.

Certain Plaintiffs’ Allegations of Injury to Natural Resources
Certain Plaintiffs’ complaints contain allegations of damage to natural resources and seek

compensation and other relief as the alleged trustee and/or owner of those natural resources. The
Chevron Defendants admit that groundwater, surface waters, wetlands and other ecological
resources exist within the states and commonwealths at issue in MDL 1358 (“MDL states”);
admit that some of those resources are privately owned and some are not; admit that some
natural resources may and do provide commercial, industrial, recreational, and other services to
the people of the MDL states and to the economies of the MDL states.
The Chevron Defendants further admit that the police power of certain Plaintiffs extends
to the protection and conservation of certain natural resources which are not the private property
of any person or entity; admit that by a longstanding legal fiction this proposition is sometimes
inexactly expressed by saying that a state or commonwealth is the owner or trustee of natural
resources for the benefit of its people or citizens; admit that certain governmental agencies have
limited regulatory authority with respect to natural resources as provided by law. The Chevron
Defendants deny that they are liable for natural resources damages.
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Z.

Certain Plaintiffs’ Allegations of Parens Patriae Status
The Chevron Defendants deny that any Plaintiffs’ assertion of alleged parens patriae

status alleviates any common law burdens of proof or of a Plaintiff’s need to meet required
elements of common law and statutory claims. The Chevron Defendants further deny that
parens patriae status is appropriate for commonwealth-wide or state-wide relief where there is an
insufficient showing of MTBE impact.
AA.

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.
BB.

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.

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CC.

Certain Plaintiff’s Allegations of Public Nuisance
The Commonwealth of Pennsylvania brought a claim against the Chevron Defendants for

public nuisance in Count III of the complaint. By Order dated August 3, 2021, the Court
granted the Chevron Defendants’ motion to dismiss the public nuisance claim in Count III of the
complaint. On the basis of that Court Order, the Chevron Defendants decline to answer these
allegations. To the extent any answer is deemed necessary, the Chevron Defendants deny
liability for public nuisance.
DD.

The Commonwealth of Pennsylvania’s Allegations Under the Pennsylvania
Unfair Trade Practices and Consumer Protection Law
The Commonwealth of Pennsylvania’s complaint contains allegations that Defendants

engaged in deceptive or unfair trade practices. The Chevron Defendants deny that they engaged
in any such activity.

On August 2, 2021, the Court dismissed the Commonwealth of

Pennsylvania’s claims under the Pennsylvania Uniform Trade Practices and Consumer
Protection Law. On the basis of the Court’s order, the Chevron Defendants decline to answer
Counts VI and VII of the Second Amended Complaint filed by the Commonwealth of
Pennsylvania and any allegations relating to their business practices or any allegedly deceptive
or misleading conduct that can be actionable under the Pennsylvania Uniform Trade Practices
and Consumer Protection Law. To the extent an answer is deemed necessary, the Chevron
Defendants deny the allegations that relate to Counts VI and VIII of the Commonwealth of
Pennsylvania’s Second Amended Complaint and deny that they engaged in any conduct or
practice that is or was deceptive, misleading, fraudulent, or unfair or that is, or could be,
actionable under the Pennsylvania Uniform Trade Practices and Consumer Protection Law or
any other similar law. The Chevron Defendants further deny that they deceived, misled, or
defrauded any governmental agency, customer, or consumer.

19

EE.

Allegations Regarding Claims of Trespass
Some complaints contain allegations that Defendants are liable for trespass.

The

Chevron Defendants deny that they engaged in any such activity or are liable for any such
claims. On July 2, 2015, the Court dismissed the Commonwealth of Pennsylvania’s trespass
claims with prejudice. On the basis of the Court’s Order, the Chevron Defendants decline to
answer Count V of the Second Amended Complaint filed by the Commonwealth of Pennsylvania
and any allegations relating to its claim for trespass. To the extent an answer is deemed
necessary, the Chevron Defendants deny the allegations that relate to Count V of the
Commonwealth of Pennsylvania’s Second Amended Complaint and deny that they are liable for
trespass.
FF.

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
20

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. The
Chevron Defendants further deny that plaintiffs have complied with the statutory requirements
for filing a citizen suit under TSCA.
GG.

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.

21

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.

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. Specifically, the complaints and each purported cause of action are barred, in whole
or in part, by, 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
thereunder.
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.

22

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.

Plaintiff has a plain, common, adequate, and speedy remedy at law. In addition,

Plaintiff has not properly pled a claim for equitable relief. The equitable causes of action alleged
in the Complaint are thus barred, and Plaintiff is limited to seeking only money damages in this
civil action.
8.

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

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

23

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
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.

24

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.
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.

25

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 doctrines of waiver and

estoppel.
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.

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.

26

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.

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.
47.

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

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

27

48.

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

supplier doctrine.
49.

The products at issue were sold to knowledgeable and sophisticated purchasers,

and any injury alleged by Plaintiff was caused by such purchasers’ failure to observe known
standards of care.
50.

The products at issue were sold to learned intermediaries, and any injury alleged

by plaintiffs was caused by such intermediaries’ failure to observe known standards of care.
Specifically, 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.
51.

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 under the doctrines
of comparative and/or contributory negligence and pursuant to any applicable statutes.
52.

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.
53.

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.
54.

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

matter alleged in the complaints.
55.

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

clarity, specificity, and particularity.

28

56.

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

by the First Amendment to the United States Constitution.
57.

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.
58.

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.
59.

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.
60.

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.
61.

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).
62.

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

subject matter of this action was not reasonably foreseeable.

29

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,
any award of damages must be reduced in proportion to the percentage of fault attributable to the
plaintiffs.
64.

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 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).
65.

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.
66.

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

mitigate their damages, if any.
67.

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 pursuant to any applicable statutes.
68.

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. Permitting recovery of punitive or exemplary damages in this case
would contravene Defendants’ constitutional rights as reserved by the Fifth, Seventh, Eighth, and
Fourteenth Amendments to the United States Constitution and other provisions of the United

30

States Constitution. See BMW of N. Am., Inc. v. Gore, 116 S. Ct. 1589 (1996) (explaining
constitutional limits on punitive damages).
69.

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.
70.

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.
71.

Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs seek

to impose liability and/or penalties on the Chevron Defendants retroactively or for conduct that
was not actionable at the time it occurred.
72.

The Court does not have personal jurisdiction over Chevron Corporation and/or

other Chevron Defendants.
73.

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.
74.

Plaintiffs lack standing to bring a citizen suit under TSCA.

75.

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.
76.

Plaintiffs have failed to comply with the jurisdictional prerequisites for bringing a

claim under TSCA.

31

77.

Plaintiffs cannot demonstrate that EPA was unaware of information plaintiffs

allege should have been disclosed under TSCA when plaintiffs’ TSCA claim was brought.
78.

The damages sought by plaintiffs are wholly speculative and conjectural.

79.

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.
80.

Plaintiffs’ claims are barred, in whole or in part, by the doctrines of res judicata

and collateral estoppel.
81.

Plaintiffs’ claims are barred, in whole or in part, by the doctrine of immunity from

82.

If plaintiffs sustained any injury under the circumstances alleged in the complaint

suit.

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.
83.

Plaintiffs’ strict liability claims are barred, in whole or in part, by plaintiffs’ own

highly reckless conduct, which is a superseding cause of plaintiffs’ alleged injuries.
84.

Plaintiffs 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.
85.

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

32

the Chevron Defendants prior to their receipt of notice of the circumstances described in the
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 complaints, and by reason
thereof, plaintiffs are barred from recovering some or all of any damages suffered.
86.

Plaintiffs’ strict liability claims are barred, in whole or in part, by the doctrine of

successor liability, including the product-line exception.
87.

Plaintiffs’ strict liability claims are barred, in whole or in part, because plaintiffs

did not suffer—and did not plead any suffering of—a physical injury.
88.

Plaintiffs’ strict liability claims are barred, in whole or in part, based on the state

of the art and/or industry standard defense(s). 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. 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.
89.

Plaintiffs’ claims for strict liability are barred because of the principles embodied

in Section 402A of the Restatement (Second) of Torts, namely that Plaintiff was not a user or
consumer of the product at issue, nor does Plaintiff allege injuries arising from its consumption
or use of the product at issue.
90.

Plaintiffs’ claims for strict liability are also barred because of the principles

embodied in Section 402A of the Restatement (Second) of Torts, comment (i), namely that the
Chevron Defendants did not sell any product that was unreasonably dangerous beyond the
contemplation of the ordinary consumer.

33

91.

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.
92.

Plaintiffs’ trespass claims are barred, in whole or in part, because the Chevron

Defendants complied with all conditions precedent imposed on their access to any allegedly
trespassed premises.
93.

Plaintiffs’ trespass claims are barred, in whole or in part, because the Chevron

Defendants reasonably believed they had been given permission to enter any premises allegedly
trespassed.
94.

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.
95.

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

immune to liability for plaintiffs’ damages, if any, caused by earth movement.
96.

Plaintiffs’ claims are barred, in whole or in part, because plaintiffs have no natural

resource damages.
97.

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

estoppel.
98.

Plaintiffs’ claims are barred, in whole or in part, by the doctrine of unclean hands.

99.

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

enrichment.

34

100.

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.
101.

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

ambiguous and uncertain.
102.

Certain of plaintiffs’ claims are barred by prior settlements and/or releases.

103.

The Chevron Defendants incorporate by reference any affirmative defense alleged

by other defendants in this action to the extent they do not conflict with the Chevron Defendants’
affirmative defenses.
104.

The pleading of the defenses described above shall not be construed as an

undertaking by the Chevron Defendants of any burden which would otherwise be the
responsibility of plaintiffs.
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:
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.

35

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

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

36

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

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

37

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
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

38

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.
PENNSYLVANIA
General Allegations in Support of Pennsylvania-Specific Defenses
1.

Many years before the Commonwealth of Pennsylvania instituted this litigation

and claimed that any amount of MTBE is harmful and must be completely remediated, the
Commonwealth itself carefully considered the potential risks posed by MTBE and reached the
opposite conclusion. Indeed, recognizing that low levels of MTBE are not harmful to the
environment or human health, the Commonwealth consistently rejected calls to ban the use of
MTBE and, acting as regulator, declined to require the complete removal of all MTBE at
gasoline release sites. Indeed, the Commonwealth has been aware of the potential for USTs to
leak since at least 1984. The Commonwealth has been testing for the presence of MTBE in

39

Pennsylvania since at least 1985 and identified MTBE as a contaminant present at remediation
sites across Pennsylvania since at least 1995.
2.

Around the time the Commonwealth of Pennsylvania began monitoring for the

presence of MTBE in the Commonwealth’s waters, the U.S. Environmental Protection Agency
(“EPA”) began an exhaustive analysis of MTBE.

In its 1997 Drinking Water Advisory

guidance, the EPA reviewed available health effects information on MTBE and concluded that
there is little likelihood that MTBE in drinking water will cause adverse health effects at
concentrations between 20 and 40 parts per billion (“ppb”) or below. After further analysis of
the effects of MTBE, the EPA concluded in a 1999 Blue Ribbon Panel Report that MTBE levels
in water ranging from 20 to 40 ppb cannot be tasted or smelled by most individuals and, more
importantly, will not cause adverse health effects to humans. Consequently, EPA did not ban the
use of MTBE or require sampling for MTBE at the federal level. Instead, as part of
implementing the Safe Drinking Water Act, EPA placed MTBE on the Contaminant Candidate
List (CCL) for further evaluation and encouraged the States to monitor it.
3.

The Commonwealth of Pennsylvania chose to participate in the CAA’s optional

RFG program in 1991 without any public hearings, meetings, or other outreach. As a result,
RFG was set to be required at terminals in 28 opt-in counties, plus five mandated counties, by
December 1, 1994, and at retail stations in those counties by January 1, 1995. Various concerns
later led to Pennsylvania Governor Robert P. Casey’s request for the Commonwealth to be
permitted to opt out of the RFG program in the 28 opt-in counties.
4.

After weighing the ability of MTBE to substantially reduce air pollution against

its potential risks, including reviewing the issue of cleaner fuels, the Commonwealth of
Pennsylvania similarly declined to ban MTBE and, instead, developed a comprehensive

40

regulatory regime for monitoring MTBE and remediating sites where it has been released, under
the Pennsylvania Storage Tank and Spill Prevention Act, 35 Pa. Code §§ 6021.101, et seq.
(“Tank Act”), the Land Recycling and Environmental Remediation Standards Act, 35 Pa. Stat.
Ann. §§ 6026.101 et seq. (“Act 2”), the Hazardous Sites Cleanup Act, 35 Pa. Stat. Ann. §§
6020.101 et seq., and the Uniform Environmental Covenants Act, 27 Pa. Stat. Ann. §§ 6501.101
et seq. Under the regime, the three types of cleanup standards available to responsible parties are
background, statewide health, and site-specific standards. To demonstrate compliance with the
background standard, parties must demonstrate that the regulated substance does not exceed the
concentration of that substance present at the site that is not related to the release of the regulated
substance. For statewide health standards, parties must attain the appropriate medium-specific
concentrations, which for MTBE, are 20 µg/L for MTBE in groundwater and 2 mg/kg for MTBE
in soil.
5.

The Commonwealth of Pennsylvania began requiring MTBE testing at release

sites in 1996. It did not, however, participate in early United States Geological Survey USGS
(“USGS”) studies regarding MTBE’s prevalence in the state and region. The most robust study
of MTBE in Pennsylvania is the 2003 USGS study “MTBE Concentrations in Ground Water in
Pennsylvania,” which found that statewide MTBE was present in 11% of ambient samples and
22% of samples associated with release sites. For the southeastern portion of the state (i.e., the
RFG counties), the survey showed that MTBE was present in 21% of ambient samples and 45%
of leak-associated samples. A 2011 EPA report “The National LUST Cleanup Backlog: A
Study of Opportunities” found that MTBE was present at 16% of the release sites on the
Pennsylvania LUST list.

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6.

For many years under the comprehensive regulatory framework built upon this

threshold, the Pennsylvania Department of Environmental Protection (“PADEP”) has partnered
with private companies—including many of the Defendants in this litigation—to efficiently and
effectively clean up MTBE release sites and ensure that the waters of the Commonwealth remain
safe for human consumption and wildlife. PADEP and its private partners were successful in
cleaning up MTBE to the satisfaction of PADEP at many release sites, as indicated by the
closure letters issued by PADEP to its private partners—including many of the Defendants in
this litigation—which not only represented the Commonwealth’s determination that no further
cleanup work was needed, but they also released the responsible party from any further
remediation work at the site and grant liability protection under Act 2.
7.

Additionally, on March 28, 2019, the Chevron Defendants settled the claims set

forth in Counts VIII and IX of the complaint, namely, the Commonwealth’s request to recover
funds paid by the Underground Storage Tank Indemnification Fund (“USTIF”) to the Chevron
Defendants pursuant to applications submitted by the Chevron Defendants for claims relating to
release from underground storage tank systems owned or operated by the Chevron Defendants.
8.

The Commonwealth’s effective, cooperative, and pragmatic approach to MTBE

regulation persisted for many years, at least until the Commonwealth decided to institute the
instant lawsuit. Now, ignoring its own regulatory framework and all of the work that already has
been done to protect the Commonwealth’s waters, the Commonwealth contends that the Chevron
Defendants must return to release sites that the Commonwealth closed long ago and further
reduce already-safe levels of MTBE.

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9.

The following Affirmative Defenses challenge, among other things, the

Commonwealth’s inexplicable about-face and demonstrate that the Commonwealth’s claims are
barred by well-established principles of equity and tort law.
Pennsylvania-Specific Defenses
1.

The Second Amended Complaint (“SAC”) filed by the Commonwealth of

Pennsylvania and each purported cause of action asserted therein are barred in whole or in part
by the doctrine of federal preemption. Federal law required an oxygenate in much of the
gasoline sold in the United States, including gasoline sold in Pennsylvania, and MTBE was
added to gasoline in full compliance with the Federal Clean Air Act, including the amendments
thereto and with the EPA’s approval. MTBE was the only viable oxygenate available for use in
Pennsylvania because, among other things, and as Plaintiff admits, prior to 2006, there were no
commercial-scale plants producing ethanol in Pennsylvania and ethanol could not be shipped via
pipeline. Congress anticipated, and even intended, that MTBE would be the oxygenate of choice
when it passed the RFG Program. State law is also preempted where a state seeks to impose
liability for an action that federal law affirmatively made available to private actors.
2.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because at all relevant times, the Chevron Defendants’ actions and products complied
with and were undertaken pursuant to applicable federal, state, commonwealth, and local laws,
rules, regulations, and specifications. Federal law required an oxygenate in much of the gasoline
sold in the United States, including gasoline sold in Pennsylvania, and MTBE was added to
gasoline in full compliance with the Federal Clean Air Act, including the amendments thereto
and with the EPA’s approval. MTBE was the only viable oxygenate available for use in
Pennsylvania because, among other things, and as Plaintiff admits, prior to 2006, there were no

43

commercial-scale plants producing ethanol in Pennsylvania and ethanol could not be shipped via
pipeline. Congress anticipated, and even intended, that MTBE would be the oxygenate of choice
when it passed the RFG Program.
3.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because federal, state, commonwealth, and/or local authorities and agencies mandated,
directed, approved, permitted, and/or ratified the alleged actions or omissions of the Chevron
Defendants. Federal law required an oxygenate in much of the gasoline sold in the United
States, including gasoline sold in Pennsylvania, and MTBE was added to gasoline in full
compliance with the Federal Clean Air Act, including the amendments thereto and with the
EPA’s approval. The Chevron Defendants did not determine the formulation of gasoline sold in
Pennsylvania and relied on others for the supply of gasoline there. The market in Pennsylvania
established the use of reformulated gasoline with MTBE, something that Congress anticipated,
and even intended, when it passed the RFG Program.

As a result, even if the Chevron

Defendants could have determined the formulation of gasoline sold in Pennsylvania, it could not
have supplied reformulated gasoline with ethanol for a variety of reasons including, but not
limited to, that it was not economically feasible due to the associated increased costs and that it
could not be shipped on a common pipeline. As a result of these higher costs associated with the
supply of ethanol gasoline, the Chevron Defendants would have lost market share and would
have been forced to exit the Pennsylvania market.
4.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because all acts and conduct of the Chevron Defendants, as alleged in the SAC,
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. Federal law required an

44

oxygenate in much of the gasoline sold in the United States, including gasoline sold in
Pennsylvania. MTBE was added to gasoline in full compliance with the Federal Clean Air Act
and amendments thereto and with approval of the EPA. The Chevron Defendants did not
determine the formulation of gasoline sold in Pennsylvania as it relied on others for the supply of
gasoline there. The market in Pennsylvania established the use of reformulated gasoline with
MTBE, something that Congress anticipated, and even intended, when it passed the RFG
Program. The Chevron Defendants chose to use MTBE and sell gasoline containing MTBE after
considering a variety of factors, including, but not limited to, costs, logistics, availability, the
oxygenates’ overall characteristics, and whether the oxygenates were federally approved. The
EPA rigorously collected information about MTBE from a wide variety of sources and approved
its use. The Chevron Defendants relied on the EPA and Congressional approval of MTBE as an
acceptable gasoline additive and on Plaintiff’s failure to ban MTBE. The Chevron Defendants’
analysis of market factors and reliance on the EPA’s and the Commonwealth’s determinations
regarding MTBE’s acceptability were consistent with the standard of care that prevailed in the
refining industry at the time and the state of knowledge indicated that MTBE was a wholly
acceptable gasoline additive.

Finally, the Chevron Defendants’ warnings about gasoline

containing MTBE were consistent with prevailing standards at the time.

The Chevron

Defendants, like all other members of the industry, prepared Material Safety Data Sheets and
provided them to customers, among other things.
5.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because the relief sought by Plaintiff is, in whole or in part, within the particular
expertise of and is being addressed by federal, state, and commonwealth governments, and their
relevant agencies, and thus this Court should decline to exercise jurisdiction over this matter

45

pursuant to the doctrines of primary jurisdiction and separation of powers. The relief Plaintiff
seeks is already occurring. Pennsylvania’s Department of Environmental Protection, which is
specifically charged with investigating petroleum release discharges and overseeing
environmental remediation, has done just that for the alleged MTBE and petroleum releases.
6.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because Plaintiff failed to exhaust its administrative remedies. Plaintiff must address
(or already has addressed) the alleged leaks and/or spills through governmental agencies
uniquely equipped to handle that task and charged with doing so, including, but not limited to,
the Regional Offices of the PADEP, PADEP’S Bureau of Waste Management, Bureau of Land
Recycling and Waste Management, Division of Storage Tanks in the Bureau of Watershed
Conservation, and Bureau of Environmental Cleanup and Brownfields.
7.

Certain of Plaintiff’s putative subrogation causes of action are barred by the

applicable provisions of the pertinent statutes of limitations, including but not limited to, 42 Pa.
Cons. Stat. Ann. § 5524. Plaintiff has been aware of the potential for USTs to leak since at least
1984. Plaintiff has been testing for the presence of MTBE in Pennsylvania since at least 1985,
has identified MTBE as a contaminant present at remediation sites across Pennsylvania since at
least 1995, and specifically required MTBE testing at remediation sites addressing gasoline
releases since at least August 1, 1996. Plaintiff has been aware of the facts it now asserts to form
the basis of its claims for at least 26 years prior to filing its lawsuit, which is well outside the
applicable statutes of limitation.

Due to Plaintiff’s unreasonable and unjustified delay in

bringing this action, it would be inequitable and a violation of due process to allow the nullum
tempus doctrine to preclude application of otherwise pertinent statutes of limitations, including
but not limited to, 42 Pa. Cons. Stat. Ann. § 5524.

46

8.

Certain of Plaintiff’s putative subrogation causes of action are barred by the

applicable provisions of the pertinent statutes of repose, including but not limited to, 42 Pa.
Cons. Stat. Ann. § 5536. Plaintiff has been aware of the potential for USTs to leak since at least
1984. Plaintiff has been testing for the presence of MTBE in Pennsylvania since at least 1985,
has identified MTBE as a contaminant present at remediation sites across Pennsylvania since at
least 1995, and specifically required MTBE testing at remediation sites addressing gasoline
releases since at least August 1, 1996. Plaintiff has been aware of the facts it now asserts to form
the basis of its claims for at least 26 years prior to filing its lawsuit, which is well outside the
applicable statutes of limitation.

Due to Plaintiff’s unreasonable and unjustified delay in

bringing this action, it would be inequitable and a violation of due process to allow the nullum
tempus doctrine to preclude application of otherwise pertinent statutes of repose, including but
not limited to, 42 Pa. Cons. Stat. Ann. § 5536.
9.

Plaintiff lacks standing to assert claims for subrogation to recover payments made

from USTIF, which claims must be asserted by the USTIF Board as subrogee of the claimants
who received the USTIF funds. Plaintiff also lacks standing to bring suit for alleged damages
incurred by its residents, citizens, or consumers, including claims for injury or testing at private
wells and claims under the Unfair Trade Practices and Consumer Protection Law.
10.

Plaintiff’s negligence claim fails because Pennsylvania does not recognize

negligent failure to test as a cause of action.
11.

The SAC and each purported cause of action asserted therein fail because any

attempt to impose liability on the Chevron Defendants without specific proof of injury, causation
or damages would improperly relieve Plaintiff of its burden of proof, prevent the Chevron
Defendants from asserting certain individualized defenses and exculpating themselves at specific

47

sites, and violate the Chevron Defendants’ due process rights under the United States and
Pennsylvania Constitutions.
12.

Any injury, damage or loss sustained by Plaintiff was proximately caused by

and/or contributed to by its own negligence, carelessness, and/or omissions under the doctrines
of comparative and/or contributory negligence and pursuant to any applicable statutes, including
but not limited to, 42 Pa. Stat. Ann. § 7102.
a.

Chevron Defendants deny that MTBE and gasoline containing MTBE constitute

defective products and/or that MTBE and gasoline containing MTBE were negligently
designed, manufactured, stored, or handled by Chevron Defendants.
b.

However, even if Plaintiff could prove that MTBE and gasoline containing MTBE

are defective products, or that MTBE and gasoline containing MTBE were negligently
designed, manufactured, stored, or handled by Chevron Defendants, Plaintiff cannot
recover damages against Defendants because it was contributorily negligent.
c.

On information and belief, Plaintiff owned (and still owns) multiple underground

storage tank systems into which it placed gasoline containing MTBE.
d.

On information and belief, Plaintiff operated multiple underground storage tanks

systems into which it placed gasoline containing MTBE.
e.

On information and belief, Plaintiff had a legal duty under the common law and

its own statutes and regulations to inspect, maintain, repair, and/or operate those
underground storage tank systems into which it placed gasoline containing MTBE with
due care and in a manner that protected human health and the environment.

48

f.

On information and belief, many of Plaintiff’s aforementioned underground

storage tank systems spilled, leaked, or otherwise released gasoline containing MTBE
into the groundwaters of Pennsylvania.
g.

On information and belief, the spills, leaks, and/or releases of MTBE gasoline

from underground storage tank systems owned and/or operated by plaintiff proximately
resulted in the contamination of groundwater resources in Pennsylvania.
h.

On information and belief, after the spillage, leakage, and/or release of gasoline

containing MTBE from its own underground storage tank systems, Plaintiff remediated
the release sites in accordance with its own statutes and regulations. As with many
release sites for which the Chevron Defendants were the Responsible Parties, Plaintiff
ceased remediation activities at sites where its own underground storage tank systems
released gasoline containing MTBE without requiring that all MTBE be removed at or
around the site. Plaintiff approved these closures because it appropriately concluded that
additional remediation was not necessary to protect public health and the environment.
i.

However, if, as Plaintiff now alleges in this litigation, it was negligent or

otherwise wrongful for Chevron Defendants not to remove all MTBE from sites where
gasoline containing MTBE was released, it also was negligent or otherwise wrongful for
Plaintiff not to remove all MTBE from sites where its own underground storage tank
systems released gasoline containing MTBE.
j.

In the alternative, in remediating sites at which its own underground storage tank

systems released gasoline containing MTBE, Plaintiff neglected to comply with one or
more of the statutes and regulations that other Responsible Parties (including, allegedly,
many of the Defendants in this case) must comply with in the event of such a gasoline

49

release and, as a result, proximately caused additional contamination of the
Commonwealth’s groundwater resources.
k.

Plaintiff was additionally contributorily negligent by overseeing the Chevron

Defendants’ clean-up and remediation of any alleged MTBE at release sites pursuant to
Act 2 (“Closed Sites”). PADEP oversaw every step in the cleanup process, approved the
methods used to clean the Closed Sites, and confirmed that the responsible party had
attained the applicable State standards at each Closed Site. The closure letters issued by
PADEP not only represented Plaintiff’s determination that no further cleanup work was
needed, but they also released the responsible party from any further remediation work at
the site and grant liability protection under Act 2. To the extent Plaintiff now claims that
there should have been additional remediation at the Closed Sites, Plaintiff’s failure to
raise the issue during its oversight of the clean-up process was contributorily negligent.
1.

Plaintiff cannot hold Defendants liable for Plaintiff’s own releases of gasoline

containing MTBE or for Plaintiff’s conduct in not following its own statutory and
regulatory obligations under Pennsylvania law.
13.

Plaintiff’s strict liability claims are barred, in whole or in part, based on the state

of the art and/or industry standard defense(s). 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. 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.
a.

MTBE conformed to the state of the art at the time of sale and was designed,

manufactured, and tested pursuant to generally recognized and prevailing standards and

50

in conformance with the statutes, regulations, and requirements that governed the product
at the time of the design, manufacture, and sale. As such, Plaintiff’s claims are barred in
whole or in part by the state-of-the-art defense.
b.

Furthermore, if any damages or injuries alleged in the SAC occurred because of

leaks in the gasoline storage tanks and associated piping, the Chevron Defendants are not
liable for those damages and/or injuries to the extent that the gasoline storage tanks and
associated piping, when manufactured and distributed, conformed to the then-current
state of scientific and industrial knowledge, and the tanks and associated piping were
used for their intended purpose.
14.

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

asserts against the Chevron Defendants.
a.

Chevron Defendants deny that MTBE and gasoline containing MTBE constitute

defective products and/or that MTBE and gasoline containing MTBE were negligently
designed, manufactured, stored, or handled by Chevron Defendants.
b.

However, even if Plaintiff could prove that MTBE and gasoline containing MTBE

are defective products, or that MTBE and gasoline containing MTBE were negligently
designed, manufactured, stored, or handled by the Chevron Defendants, Plaintiff cannot
recover damages against the Chevron Defendants because it assumed any risks, to the
extent they existed, associated with MTBE and gasoline containing MTBE.
c.

On information and belief, Plaintiff, by and through several of its agencies

(including, but not limited to, PADEP), and from those agencies’ direct experiences at
gasoline release sites, by no later than 1990 and perhaps significantly before that date,
knew or should have known each of the alleged characteristics and properties of gasoline

51

containing MTBE that Plaintiff now claims render such gasoline a “defective product,”
constitute negligent design by certain Chevron Defendants, and about which Plaintiff
now alleges in the SAC that the Chevron Defendants should have provided additional
warnings. Because various acts taken by Plaintiff after it acquired such knowledge
demonstrate that it assumed the risks (to the extent they existed) relating to gasoline
containing MTBE, Plaintiff is precluded from recovering any damages caused by its
assumption of those alleged risks.
d.

Specifically, Plaintiff alleges that MTBE was more soluble than most other

components of gasoline, could travel farther and faster in groundwater, in some instances,
than most other components of gasoline, and could impart a taste and/or odor to drinking
water at relatively low levels. To the extent MTBE and gasoline containing MTBE
possess these properties, Plaintiff knew or should have known that this was the case by
no later than 1990 and perhaps significantly before that date based on its own experiences
at gasoline release sites.
e.

Notwithstanding its actual or constructive knowledge, Plaintiff had gasoline

containing MTBE delivered to its own storage tanks and, in many instances, supervised
the investigation and remediation of gasoline releases from those storage tanks.
f.

Also notwithstanding its actual or constructive knowledge of MTBE’s alleged

characteristics and risks (to the extent they existed), in 1991, Plaintiff decided to opt
several Pennsylvania counties into the federal RFG program. Plaintiff made this opt-in
decision knowing that, for many logistical and other reasons, refiners were (and would
continue) manufacturing RFG by adding MTBE (an oxygenate) to comply with the RFG
Program’s mandate that such RFG contain an oxygenate.

52

Plaintiff made its opt-in

decision so that, inter alia, it would obtain the significant air quality benefits that it has
acknowledged resulted from the use of RFG in general, and RFG containing MTBE in
particular. Plaintiff, after weighing the ability of MTBE to substantially reduce air
pollution against its potential risks, including reviewing the issue of cleaner fuels,
declined to phase out and/or ban MTBE until 2005 and, instead, developed a
comprehensive regulatory regime for monitoring MTBE and remediating sites where it
has been released.
g.

Notwithstanding its actual or constructive knowledge of MTBE’s alleged

characteristics and risks (to the extent they existed), Plaintiff continuously recognized
that the use of MTBE in Pennsylvania gasoline had beneficial effects, and continued to
decline efforts to phase out and/or ban the use, sale, and distribution of MTBE products
in Pennsylvania until 2005.
h.

As demonstrated by the foregoing, at all relevant times Plaintiff was fully aware

of MTBE’s alleged characteristics and of the alleged risks posed by the sale and use of
gasoline containing MTBE in Pennsylvania.
i.

As demonstrated by the foregoing, Plaintiff appreciated the alleged risks

attendant to the sale and use of gasoline containing MTBE in Pennsylvania.
j.

As demonstrated by the foregoing, Plaintiff voluntarily responded to MTBE’s

alleged properties and risks by (1) opting several Pennsylvania counties into the federal
RFG Program, knowing that MTBE would be the oxygenate used to meet the RFG
Program’s oxygenate mandate; (2) continuing to allow the use of MTBE in gasoline sold
in Pennsylvania; (3) taking delivery of, storing, and in many instances remediating
releases of gasoline containing MTBE at its own sites; (4) not requiring Public Water

53

Systems to routinely test for MTBE; and (5) allowing private well owners to make the
decision of whether to address the presence of MTBE in their private wells.
k.

As a result of the foregoing, Plaintiff assumed the risk.

15.

The Chevron Defendants deny that Plaintiff is entitled to punitive damages in

this case.

The Chevron Defendants did not have any intent to injure Plaintiff and the

Chevron Defendants’ conduct was not “outrageous,” as defined and determined under
Pennsylvania law. The Chevron Defendants incorporate and assert all defenses regarding the
imposition of punitive damages created by Pennsylvania law.
16.

The Chevron Defendants are not jointly and severally liable to Plaintiff because

the Chevron Defendants, if liable at all to Plaintiff, are not liable for more than 60% of any total
apportioned liability pursuant to the applicable statutes, including but not limited to, 42 Pa. Stat.
Ann. § 7102.
17.

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

Plaintiff, the Chevron Defendants assert their entitlement to an appropriate credit or reduction of
any judgment(s) against them pursuant to any applicable statutes, including but not limited to,
the Uniform Contribution Among Tort-feasors Act, 42 Pa. Stat. Ann. §§ 8321, et seq.
18.

The Chevron Defendants allege that their liability, if any, be pro-rated pursuant to

any applicable statutes, including but not limited to, the Uniform Contribution Among Tortfeasors Act, 42 Pa. Stat. Ann. §§ 8321, et seq.
19.

The SAC and each purported cause of action asserted therein are barred in whole

or in part to the extent Plaintiff received or may receive the requested relief from a governmental
agency or any other source, including, but not limited to, the EPA, USTIF and/or the
Pennsylvania Insurance Department. These claims are barred because the Chevron Defendants

54

assert their entitlement to an appropriate set-off or reduction of any judgment against them.
Further, any award in damages for treatment of MTBE must be set-off or reduced by the cost of
treating other contaminants, regardless of the presence of MTBE.
20.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because the appropriate forum for Plaintiff’s claims is an administrative agency, and
therefore all proceedings before this Court should be stayed pending administrative resolution of
the issues. The relief Plaintiff seeks is already occurring. PADEP, which is specifically charged
with investigating petroleum release discharges and overseeing environmental remediation, has
done just that for the alleged MTBE and petroleum releases.
21.

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

culpability with respect to each material element of the alleged offenses of public nuisance and
negligence in order to be found liable according to the applicable provisions of 18 Pa. Cons. Stat.
Ann. § 301, and, therefore, Plaintiff’s claims on these counts were properly or should be
dismissed.
22.

In addition to already having been dismissed, Plaintiff’s claims for public

nuisance are barred because at all relevant times, neither the Chevron Defendants nor their
products violated any orders or regulations adopted by the Pennsylvania Department of
Environmental Resources. 35 Pa. Cons. Stat. Ann. § 691.503.
23.

Plaintiff’s claims are barred because the Chevron Defendants voluntarily cleaned

up any alleged MTBE at the Closed Sites. PADEP oversaw every step in the cleanup process,
approved the methods used to clean the Closed Sites, and confirmed that the responsible party
had attained the applicable State standards at each Closed Site. The closure letters issued by
PADEP not only represented Plaintiff’s determination that no further cleanup work was needed,

55

but they also released the responsible party from any further remediation work at the site and
grant liability protection under Act 2. Furthermore, at every site closed under Act 2, the Chevron
Defendants cannot be held liable for MTBE releases based on res judicata, collateral estoppel,
equitable estoppel, other estoppel doctrines, and due process, among other reasons.
24.

Plaintiff’s claims are barred because it is seeking double recovery, to the extent

the Chevron Defendants have already made payment and/or remediated pursuant to Act 2 and
pursuant to the March 28, 2019 settlement of Counts VIII and IX of the SAC.
25.

Plaintiff’s claims are barred, in whole or in part, by the doctrines of release and

accord and satisfaction. Specifically, the SAC and each purported cause of action are barred to
the extent that federal and/or Commonwealth of Pennsylvania agencies have settled with and/or
released Chevron Defendants from any further liability respecting the presence of MTBE in the
relevant groundwater for which plaintiff is asserting damages, including but not limited to,
pursuant to the Chevron Defendants’ voluntary cleanup of the Closed Sites pursuant to Act 2 and
pursuant to the March 28, 2019 settlement of Counts VIII and IX of the SAC.
26.

The SAC 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, including but not limited to, pursuant to the Chevron
Defendants’ or others’ voluntary cleanup of the Closed Sites pursuant to Act 2.
27.

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

and/or Commonwealth of Pennsylvania agencies have exonerated the Chevron Defendants
and/or determined that any Chevron Defendants’ facility did not contribute to the presence of
MTBE in the relevant groundwater for which Plaintiffs is asserting damages, including but not

56

limited to, pursuant to the Chevron Defendants’ voluntary cleanup of the Closed Sites pursuant
to Act 2.
28.

The mootness doctrine bars, in whole or in part, claims for those sites where,

because the issue of responsibility or damages already has been fully or partially resolved, there
is no “live” controversy. For example, on information and belief, certain sites that appear to be
at issue in this case already have received regulatory closure from Plaintiff pursuant to Act 2,
have been subject to prior enforcement actions, and/or have been addressed by prior settlements
or consent decrees executed on behalf of, or with the knowledge of, Plaintiff. Additionally, on
information and belief, other sites that appear to be at issue in this case have never had an MTBE
or TBA detection in the groundwater, or do not currently have any MTBE or TBA in the
groundwater. Claims at sites like these (and others) are barred by the mootness doctrine because
no actual case or controversy remains (or ever existed) and, therefore, the Court lacks
jurisdiction over Plaintiff’s claims related to such sites.
29.

The Chevron Defendants allege that to the extent Plaintiff is claiming damages for

the cost of remediation due to Plaintiff’s alleged compliance with primary or secondary drinking
water standard or other regulations enacted by the Commonwealth of Pennsylvania 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.
30.

Plaintiff’s claims are barred in whole or in part because the Chevron Defendants

have already taken “corrective action,” which is defined in the Tank Act as “containing,
investigating, and removing contamination and . . . taking measures to prevent, mitigate, abate or
remedy releases . . . and damages to . . . wildlife and other natural resources.” 25 Pa. Code §
245.203; 35 Pa. Stat. Ann. § 6021.103.

57

31.

Plaintiff’s claims are barred in whole or in part because the Chevron Defendants

are not “responsible part[ies]” under the Tank Act. 25 Pa. Code § 245.203.
32.

Plaintiff’s claims are barred, in whole or in part, because the Chevron Defendants

have, at all times, met all requirements imposed by USTIF under 25 Pa. Code § 977.31 for
eligibility for fund coverage.
33.

Plaintiff’s claims are barred, in whole or in part, because the Chevron Defendants

have, at all times, met all requirements imposed by USTIF under 25 Pa. Code § 977.32 related to
participant cooperation.
34.

Plaintiff’s claims are barred, in whole or in part, because the Chevron Defendants

have, at all times, met all requirements imposed by USTIF under 25 Pa. Code § 977.34 related to
claims reporting and/or notification.
35.

Plaintiff’s claims are barred, in whole or in part, because the exclusions listed in

25 Pa. Code § 977.33(b) for USTIF coverage do not apply to the Chevron Defendants and/or
their conduct at all times pleaded herein.
36.

Plaintiff’s claims are barred because Plaintiff has failed to comply with the

requirements set forth in the Tank Act.
37.

Plaintiff’s claims are barred to the extent Plaintiff seeks relief for conduct

occurring or damages incurred prior to the effective date of the Tank Act.
38.

Plaintiff’s claims 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.
39.

Plaintiff’s claims are barred to the extent that the Chevron Defendants’ use of

MTBE related to compliance with the RFG Program.

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40.

There is no statute or other authority for Plaintiff’s requested relief relative to the

testing of public and private water supplies and, accordingly, any claim for such relief must fail.
41.

With respect to groundwater or surface water with MTBE in excess of

Commonwealth regulatory standards, the Plaintiff’s damages, if any, are limited to the cost of
restoring such waters to Commonwealth regulatory standards.
42.

To the extent Plaintiff seeks relief with respect to any property owned or allegedly

impacted by a release of MTBE from property owned by the Chevron Defendants, Plaintiff’s
recovery is limited to amounts not subject to reimbursement by one or more of Plaintiff’s
petroleum reimbursement funds.
43.

The Chevron Defendants affirmatively claim by way of recoupment or offset the

monetary or economic benefit which the Chevron Defendants allege Plaintiff obtained by the use
of RFG gasoline, including but not limited to the air quality benefits obtained.
44.

To the extent Plaintiff recovers any damages in this matter—and the Chevron

Defendants deny it is entitled to recover any damages in this matter—the Chevron Defendants
are entitled to a credit and/or offset for the money they have spent to date on remediation and a
release for all future remediation obligations in the Commonwealth.
45.

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

the doctrine of laches.
a.

As detailed below, Plaintiff has known about MTBE for decades and,

through PADEP, has worked cooperatively with Chevron Defendants for years to
ensure that releases of gasoline containing MTBE are effectively remediated in
accordance with the Commonwealth’s comprehensive environmental statutes and
regulations. Despite having all of this knowledge and experience, Plaintiff waited

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years to belatedly commence this litigation. Plaintiff’s unreasonable, exceptional,
and inexcusable delay in bringing this action violates due process and causes
substantial prejudice to the Chevron Defendants’ ability to respond to and obtain
discovery to present their defenses and have a meaningful opportunity to be
heard.
b.

On information and belief, and accepting Plaintiff’s allegations regarding

the alleged risks of MTBE, Plaintiff had knowledge of those alleged risks for
decades before filing this litigation. For instance, Plaintiff extensively studied the
impact of releases of MTBE-blended gasoline and adopted comprehensive
measures to address such impacts many years prior to filing this action. Indeed,
PADEP members, including PADEP Deputy Secretary Brisini, knew that MTBE
spills contaminated groundwater as early as the 1980s. Plaintiff has been aware
of the potential for USTs to leak since at least 1984. Plaintiff has been testing for
the presence of MTBE in Pennsylvania since at least 1985 and identified MTBE
as a contaminant present at remediation sites across Pennsylvania since at least
1995. Plaintiff specifically required MTBE testing at remediation sites addressing
gasoline releases since at least August 1, 1996.
c.

Between 1988 and 2007, Pennsylvania developed a comprehensive

regulatory regime for monitoring MTBE and remediating sites where it has been
released, under the Tank Act, Act 2, the Hazardous Sites Cleanup Act, 35 Pa. Stat.
Ann. §§ 6020.101 et seq., and the Uniform Environmental Covenants Act, 27 Pa.
Stat. Ann. §§ 6501.101 et seq. Under the regime, the three types of cleanup
standards available to responsible parties are background, statewide health, and

60

site-specific standards.

To demonstrate compliance with the background

standard, parties must demonstrate that the regulated substance does not exceed
the concentration of that substance present at the site that is not related to the
release of the regulated substance. For statewide health standards, parties must
attain the appropriate medium-specific concentrations, which for MTBE, are 20
µg/L for MTBE in groundwater and 2 mg/kg for MTBE in soil.
d.

In 1993, in connection with its implementation of its MTBE monitoring

and remediation regime, PADEP issued a draft publication titled “Environmental
Contamination: A Handbook for Conducting Charges,” which references a 1992
guidance document, also published by PADEP, which states that “the ultimate
goal of ground water remediation is to clean up the ground water to background
quality—the way it was before it was contaminated by human activities.”
However, PADEP further acknowledged in the 1993 publication that “it is
difficult to remediate ground water,” and noted that, “[b]ecause of the potential
for difficulty in remediation, [PADEP] allows for flexibility.”
e.

Act 2 also established the Cleanup Standards Scientific Advisory Board

(“CSSAB”)—a 13-member advisory board created “for the purpose of assisting
the department and the [Environmental Quality Board] in developing Statewide
health standards, determining the appropriate statistically and scientifically valid
procedures to be used, determining the appropriate risk factors and providing
other technical and scientific advice needed to implement the provisions of this
act.” 35 Pa. Stat. Ann. § 6026.105(a).

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f.

In 1995, a Background, Statewide and Site-Specific Standards

Subcommittee was formed within the CSSAB to address procedures and MCLs
for the background, statewide health, and site-specific standards.
g.

In 2003, in the most robust study of MTBE in Pennsylvania, the USGS

study “MTBE Concentrations in Ground Water in Pennsylvania” found that
statewide MTBE was present in 11% of ambient samples and 22% of samples
associated with release sites. For the southeastern portion of the state (i.e., the
RFG counties), the survey showed that MTBE was present in 21% of ambient
samples and 45% of leak-associated samples. A 2011 EPA report “The National
LUST Cleanup Backlog:

A Study of Opportunities” found that MTBE was

present at 16% of the release sites on the Pennsylvania LUST list.
h.

In 2009, the Storage Tank Advisory Committee considered raising the

groundwater concentrations for MTBE, based on health-based calculations, from
20 µg/L to 190 µg/L for residential sites and 960 µg/L for non-residential sites.
PADEP never adopted the higher concentrations of MTBE due to taste and odor
concerns.

A December 2, 2009 Environmental Quality Board memorandum

indicated that CSSAB opposed even the existing standards for MTBE because
“they do not reflect specific health-based criteria from Act 2.” Nonetheless, as
further indicated in the December 2, 2009 memorandum, PADEP sought to retain
the MSC for MTBE at 20 µg/L because “[PA]DEP views the 1997 Drinking
Water Advisory [issued by the EPA] as a Health Advisory Level.” CSSAB
repeated these concerns at June 15, 2010 and December 17, 2014 meetings, and

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the Storage Tank Advisory Committee voted against the 20 µg/L level on
December 6, 2013.
i.

Nonetheless, the levels remained at statewide health standards, parties

must attain the appropriate medium-specific concentrations, which for MTBE, are
20 µg/L for MTBE in groundwater and 2 mg/kg for MTBE in soil when they were
published for public comment between May 17, 2014 and June 17, 2014.
j.

On information and belief, Plaintiff also was aware of other MTBE

litigations filed against certain of the Defendants named here and, specifically, the
more than 100 cases that were transferred and consolidated as Multidistrict
Litigation No. 1358 in the U.S. District Court for the Southern District of New
York beginning in 2000. On information and belief, Plaintiff also was aware of
and monitored other non-MDL MTBE litigations, including the sovereign case
filed by the State of New Hampshire in 2003.
k.

Despite having knowledge about the alleged presence of MTBE in

Pennsylvania groundwater and drinking water for decades, and also having
knowledge of other MTBE-related litigations, Plaintiff did not file the instant
action until 2016, two decades after it had begun extensively studying releases of
MTBE gasoline and more than a decade after Defendants stopped supplying
MTBE-blended gasoline to Pennsylvania in 2005.
l.

Plaintiff’s inexcusable delay in bringing this action causes prejudice to the

Chevron Defendants. Key witnesses are no longer available or no longer
remember relevant information, and certain documents and other evidence no
longer are available. As a result, the Chevron Defendants’ ability to investigate

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Plaintiff’s claims and prepare the Chevron Defendants’ defenses has been
prejudiced by Plaintiff’s inexcusable delay in bringing its claims.
46.

Plaintiff is estopped from asserting claims at law or in equity against the Chevron

Defendants. Equitable estoppel is based on numerous actions that Plaintiff voluntarily took and
on which the Chevron Defendants relied. Such reliance is detrimental unless equitable estoppel
is applied.
a.

For example, and as detailed above in Paragraph 44(a) through (l),

Plaintiff has long known about MTBE and MTBE release sites in Pennsylvania
and, acting through PADEP, Plaintiff set MCLs for MTBE and established other
risk-based corrective action policies that allowed for the investigation,
remediation, and closure of sites where low levels of MTBE remained in soil and
groundwater.
b.

Parties conducting investigations and/or remediations of sites where

MTBE was released (“Responsible Parties”), including certain Defendants, for
years have worked closely and cooperatively with PADEP and abided by, and
continue to abide by, the corrective action policies and regulations enacted by
Plaintiff. These Responsible Parties, including many Defendants, have devoted
enormous time and resources to investigating and remediating gasoline release
sites, including sites with MTBE impacts, at and under Plaintiff’s direction and in
accordance with its policies and regulations. In so doing, these Responsible
Parties have relied in good faith on Plaintiff’s oversight, policies, regulations, and
other guidance, and often have ceased investigatory and remedial activities—with
Plaintiff’s permission—when PADEP has determined that action no longer is

64

needed at a particular site. In addition, Defendants that merely supplied gasoline
to service stations in Pennsylvania relied in good faith on plaintiff’s policies,
knowing that the parties responsible for releases at service stations would be
required to follow PADEP’s investigatory and remedial requirements, and that all
investigative, remedial and closure activities were subject to PADEP oversight
and approval on behalf of Plaintiff.
c.

Notwithstanding the acts and positions detailed above that Plaintiff

officially took in its stance as a regulator, as a litigant, Plaintiff now seeks to hold
all Defendants jointly and severally liable for, inter alia, the cost of returning
groundwater and drinking water resources impacted by MTBE to a “predischarge” condition. See, e.g., Compl. ¶ 8 & Prayer for Relief. Plaintiff also
seeks to hold all Defendants jointly and severally liable for, inter alia, “past and
future testing of all affected or potentially affected groundwater for the presence
of MTBE, including in both public and private drinking water wells; and past and
future treatment and remediation of all groundwater containing detectable levels
of MTBE until restored to non-detectable levels, including in both public and
private drinking water wells.” Id. ¶¶ 359, 366, 374, 384, 391. Such relief would
work to the Chevron Defendants’ detriment, requiring them to reinvestigate sites
that were previously closed with Plaintiff’s approval, and to take other actions
that Plaintiff previously deemed unnecessary to protect public health and the
environment. Plaintiff is equitably estopped from obtaining relief where
Responsible Parties abided by corrective action policies and regulations that
Plaintiff established, and where those Responsible Parties relied upon Plaintiff’s

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guidance, directives and binding instructions at specific MTBE release sites,
including but not limited to, Commonwealth-owned properties (where Plaintiff
itself released gasoline containing MTBE and was the party responsible for
performing remedial activities).
d.

In addition, Plaintiff is equitably estopped from recovering costs for which

the Commonwealth already has been reimbursed or otherwise paid from funds
collected (by the Commonwealth) through USTIF.
e.

Funds generated by USTIF are used to partially reimburse owners and

operators of gasoline service stations for remediation costs associated with UST
leaks for “primary coverage for corrective action costs and eligible claims for
personal injury and property damage due to a release from a UST.” 25 Pa. Code §
977.38(a).
f.

Parties pay fees into the USTIF for every gallon that enters a UST in the

Commonwealth and in exchange are entitled to receive reimbursements.
g.

The Commonwealth’s USTIF fee revenue for 2018 totaled $58,251,433,

with total payments for open UST claims totaling $30,112,367. Pennsylvania
Underground Storage Tank Indemnification Fund, 2018 Annual Report, available
at
https://ustif.pa.gov/documents/10197/0/2018_PAUSTIF_Annual+Report_Final_2
019-03-09-3.pdf/ff7f00b3-de87-466d-852a-0d15991c06bd.
h.

The Chevron Defendants, some of which paid oil fees to USTIF, relied on

USTIF to cover costs incurred by Plaintiff to address MTBE releases. Plaintiff is
equitably estopped from obtaining any damages based on remedial costs already

66

paid to Plaintiff by USTIF, including but not limited to, remediation performed at
properties owned by Plaintiff.
47.

Plaintiff’s claims are barred in whole or in part by the doctrines of waiver and

estoppel.
a.

Plaintiff waived the right to pursue damages for those gasoline release

sites where Plaintiff previously approved remediation plans and/or authorized site
closure in a manner that allowed MTBE to remain present, including sites where
plaintiff itself was the party responsible for the gasoline release and subsequent
cleanup. Plaintiff (and, specifically, the PADEP) must approve a remediating
party’s spill prevention response plan. 35 Pa. Stat. Ann. §§ 6026.903(b). The
level of remediation required by such a corrective action plan is site-specific and
within the discretion of Plaintiff, who has the authority to require Responsible
Parties to continue remediation and annually update the spill prevention response
plan.

Id. at § 6026.903(a).

On information and belief, Plaintiff routinely

approves corrective action plans, including at state-owned or state-operated sites
(where Plaintiff itself released gasoline containing MTBE and performed
remediation), which do not require the complete removal of all MTBE from soil
and/or groundwater. Indeed, on information and belief, in many instances,
Plaintiff (through the PADEP) approves corrective action plans that do not require
active remediation at all but, instead, allow for the monitored natural attenuation
of gasoline contamination, including MTBE contamination.
b.

On information and belief, Plaintiff also often approves closure of

remediation sites involving MTBE, ending the Responsible Parties’ remediation

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obligations at the site, without requiring that all MTBE be removed at or around
the site. Plaintiff approves these closures where it has concluded that additional
remediation is not necessary to protect public health and the environment. Such
closure decisions often are memorialized in closure letters or RACR approval
letters from the PADEP and, in at least some instances, those letters only reserve
Plaintiff’s right to pursue further enforcement for site impacts or activities that are
unrelated to those for which closure has been granted.

In those situations,

Plaintiff has waived the right to pursue the Responsible Party for additional
remedial activity or costs relating to the MTBE that Plaintiff, in granting site
closure, determined did not require further remediation.
c.

Furthermore, to the extent that Plaintiff has granted closure letters to the

Chevron Defendants for remediation sites involving MTBE under the Tank Act
and Act 2, Plaintiff has waived the right to pursue additional remediation costs.
See 35 Pa. Stat. Ann. § 6026.501(a) (providing that under Act 2, persons and
entities that comply with the applicable environmental cleanup standards—here,
the Tank Act—“shall be relieved of further liability for the remediation of the site
under the statutes outline in section 106 for any contamination identified in
reports submitted to and approved by [PADEP] to demonstrate compliance with
these standards”).
48.

Plaintiff’s claims are barred to the extent that it has unreasonably failed to

mitigate its damages, if any.
d.

Plaintiff seeks to hold the Chevron Defendants responsible for the cost of

returning groundwater and drinking water wells impacted by MTBE to a “pre-

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discharge condition.” See, e.g., Compl. ¶ 9 & Prayer for Relief. Plaintiff will
argue that this equates to a demand for environmental remediation and treatment
of MTBE until MTBE is below detectable levels—i.e., essentially zero. Yet,
outside of this litigation, as a regulator, Plaintiff routinely permits Responsible
Parties—including

Commonwealth

departments

and

agencies—to

cease

remediation with MTBE remaining in the environment at levels above the
nondetect standard that it now demands be imposed in this case. Plaintiff allows
this to occur because it knows that remediation of MTBE to this alleged “predischarge” standard is not necessary to protect human health or the environment.
The level of remediation required by such a remediating party’s spill prevention
response plan under the Tank Act is site-specific and within the discretion of
Plaintiff, who has the authority to require Responsible Parties to continue
remediation and annually update the spill prevention response plan. Indeed,
Plaintiff could have set its environmental investigation/remediation standard for
MTBE at zero, but it chose not to do so. In fact, the Chevron Defendants are not
aware of a single regulatory authority in the entire country that has set such a
standard.
e.

The Chevron Defendants agree with Plaintiff that site investigation and

remediation to “pre-discharge condition” is not reasonable or necessary, for
MTBE or any other constituent of gasoline. But if Plaintiff is allowed to pursue
such extreme relief in this case as a litigant, Plaintiff would have failed to mitigate
the very damages it now claims. By permitting Responsible Parties—including
Commonwealth entities—to remediate only to certain site-specific levels, and to

69

cease remedial activities before groundwater has been returned to so-called “predischarge” conditions, Plaintiff has neglected, for decades, to mitigate the
conjured damages it now seeks to recover from many of those remediating parties
in this case. Moreover, on information and belief, Plaintiff has contributed to its
alleged damages by, for example, allowing or requiring Responsible Parties to
remove remediation systems and monitoring wells that, under Plaintiff’s current
litigation theory, must now be reactivated or re-installed again; and also by
permitting MTBE to remain in groundwater at detectable (albeit safe) levels and
potentially travel further in groundwater than it would have if plaintiff had
required remediation to pre-contaminated conditions at the time remedial action
was taking place. On information and belief, Plaintiff also has engaged in the
above conduct in its role as the “Responsible Party” at State-owned remediation
sites—e.g., ceasing remediation activities despite MTBE remaining in the
groundwater at detectable levels.
f.

In sum, Plaintiff should not be allowed to seek costs and injunctive relief

for investigation and remediation of MTBE down to levels it never previously
required of itself or other Responsible Parties.
49.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because there is a defect or misjoinder of parties, in that Plaintiff failed to join
indispensable or necessary parties. Plaintiff failed to sue the necessary or indispensable parties,
which include, but are not limited to, downstream handlers that own underground storage tanks
in Pennsylvania; retail gasoline stations in Pennsylvania that are independently owned and not
operated by major oil companies; numerous jobbers operating in Pennsylvania; numerous rack

70

marketers; various gasoline traders; gasoline blenders or owners of gasoline blending facilities in
Pennsylvania; manufacturers of underground storage tanks; merchant producers of neat MTBE;
importers of neat MTBE; and hundreds of spillers of gasoline and “Potentially Responsible
Parties” identified by the Pennsylvania Department of Environmental Protection.
50.

The SAC and each purported cause of action asserted therein are barred in whole

or in part, based on Plaintiff’s actual notice of reported spills or releases, if any, from publicly
available records. Releases of reportable quantities of gasoline are required to be reported to the
relevant Commonwealth agencies. Plaintiff had access to those records and reports. Plaintiff’s
claims are also barred, in whole or in part, to the extent Plaintiff had constructive notice of spills
and releases from any source.
51.

Plaintiff’s claims for natural resource damages are barred, in whole or in part,

because Plaintiff does not own or have a trusteeship interest in the property and/or natural
resources allegedly impacted. Further, under Pennsylvania law, natural resource damages may
only be recovered where a specific statute allows for their recovery and the only such statute that
allows natural resource damages recover is the Hazardous Sites Cleanup Act. Plaintiff has not
asserted a claim against the Chevron Defendants under that statute.
52.

Plaintiff lacks authority to bring common-law parens patriae claims absent

specific statutory authorization. Furthermore, any funds awarded to Plaintiff must be placed into
a trust to ensure such monies are used to address MTBE impact, if any, in the Commonwealth.
53.

The SAC and each purported cause of action asserted therein are barred in whole

or in part because Plaintiff does not have a legally cognizable injury unless or until the alleged
level of MTBE and/or TBA exceeds applicable action levels.

Pennsylvania statutes and

regulations allow, and indeed encourage, the cleanup of remediation sites to one of three levels –

71

background levels, a statewide health standard, or a site-specific standard. At certain sites,
PADEP approved cleanup based upon site-specific standards that exceeded the statewide health
standard. Plaintiff cannot satisfy the actual injury requirement for any of its causes of action
where the levels of MTBE has been deemed acceptable under Pennsylvania law.
PUERTO RICO
1.

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

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.
72

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.
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.

73

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
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.

74

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.
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,

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.

75

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.
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.

76

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.
Respectfully submitted,
/s/ Jeremiah J. Anderson
Robert E. Meadows
Jeremiah J. Anderson
James J. Maher
77

KING & SPALDING LLP
1100 Louisiana, Suite 4100
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 October 1, 2021, a true, correct, and exact copy of the foregoing
document was served on all counsel via File&ServeXpress.

/s/ Jeremiah J. Anderson
Jeremiah J. Anderson

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