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

Filing 4639

AMENDED ANSWER to. Document filed by CITGO International, Inc., Citgo International P.R., Citgo Petroleum Corp., Citgo Refining & Chemicals Co L P. Filed In Associated Cases: 1:00-cv-01898-VSB, 1:04-cv-04968-VSB, 1:07-cv-10470-VSB, 1:14-cv-01014-VSB, 1:14-cv-06228-VSB-DCF.(Hanebutt, Pamela)

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-VSB
MDL 1358
M21-88

This document relates to:
All Cases in MDL 1358 in which the CITGO
entities have been properly named and
served and for which an answer is now due,
including:
Commonwealth of Pennsylvania v.
Exxon Mobil Corp., et al.,
Case No. 14-cv-06228
____________________________________
THE CITGO DEFENDANTS’ TENTH AMENDED MASTER ANSWER,
AFFIRMATIVE AND SEPARATE DEFENSES 1
In accordance with the November 16, 2005 Stipulation regarding Master Answers,
Case Management Order No. 6, the Court’s instructions from the January 13, 2005 status
conference and the Court’s Opinion and Order from August 2, 2021, CITGO Petroleum
Corporation (“CITGO”), CITGO Refining and Chemicals Company L.P. (“CRCC”), 2
CITGO International Puerto Rico Company (“CITGO P.R.”), 3 and CITGO International,

1 The CITGO Defendants’ Tenth Amended Master Answer, Affirmative and Separate Defenses only applies
to a CITGO entity to the extent that entity has been properly named and served. Not all of the CITGO entities
have been named and served in each of the cases in MDL 1358. The CITGO Defendants also expressly
reserve the arguments that were rejected by the Court in its rulings on the motions to dismiss for purposes of
preserving their rights, including any appeals rights.
2

CITGO Refining and Chemicals Company L.P. was incorrectly identified in the complaints filed by the
Commonwealth of Puerto Rico, et al (07 Civ. 10470, 14 Civ. 01014) as “CITGO Refining and Chemical
Company, L.P.”
3

CITGO International Puerto Rico Company was incorrectly identified in the complaints filed by the
Commonwealth of Puerto Rico (07 Civ. 10470, 14 Civ. 01014) as “CITGO International P.R.”

Inc. (“CITGO International”) (collectively referred to as “the CITGO entities”), hereby file
their Tenth Amended Master Answer, Affirmative and Separate Defenses, and respond and
state as follows:
TENTH AMENDED MASTER ANSWER
I.

RESPONSES TO COMMON ALLEGATIONS
A.

Allegations Regarding the CITGO Entities

1.

CITGO is a Delaware corporation with its principal place of business in

Houston, Texas. CITGO’s parent corporation is CITGO Holding, Inc., which is a whollyowned subsidiary of PDV Holding, Inc., which is a wholly-owned subsidiary of Petróleos
de Venezuela S.A.
2.

CRCC is a Delaware limited partnership with its principal place of business

in Corpus Christi, Texas. CITGO is the general partner; CITGO Investment Company, a
wholly-owned subsidiary of CITGO, is the limited partner.
3.

CITGO P.R., which was a Commonwealth of Puerto Rico general

partnership, is no longer active. CITGO P.R.’s partners were CITGO Cayman Investment,
LLC and CITGO International Investment Company.
4.

CITGO International is a Delaware corporation with its principal place of

business in Houston, Texas. CITGO International is wholly owned by CITGO Investment
Company, a wholly-owned subsidiary of CITGO. CITGO International was formerly
known as CITGO International Latin America, Inc., the entity named and served in the
2014 complaint filed by the Commonwealth of Puerto Rico, et al (14 Civ. 01014).
5.

The CITGO entities deny all allegations that parent corporations exercised

pervasive and excessive control over subsidiary entities and that subsidiary corporations

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improperly acted as agents of parent corporations.
6.

The CITGO entities deny that any actions or liabilities of any named or

unnamed entities, including but not limited to any predecessor, successor, parent,
subsidiary, affiliate or division, or of any “related” entity, can be imputed to them,
regardless of any corporate affiliation.
7.

The CITGO entities deny that they acted as a joint venturer, partner, agent,

principal, successor-in-interest, surviving corporation, transferee, transferor, controller,
alter-ego or indemnitor of or with any other Defendant or entity or that they are, or can be,
jointly and severally liable to the Plaintiffs.
B.

Allegations Regarding the Motivation to Add MTBE to Gasoline

8.

The CITGO entities admit that MTBE and other oxygenates, including

ethanol, were added to gasoline in varying concentrations to comply with a variety of
federal fuel requirements and/or to improve its octane rating. Following the EPA’s
mandate to reduce lead in gasoline, most U.S. refiners began evaluating oxygenates and
octane enhancers, such as ethanol and MTBE. CITGO was the leading supplier of ethanolblended gasoline in the United States for a period of time in the 1980s, but it was forced to
replace ethanol with MTBE in certain parts of the country due to tremendous obstacles it
faced with supply; distribution; prohibitions on commingling of MTBE and ethanol;
dissatisfaction from its largest customer, the auto industry and consumers; and other issues.
9.

The CITGO entities deny that Congress adopted the Reformulated Gasoline

Program (“RFG”) as part of the 1990 Amendments to the Clean Air Act as a result of
lobbying efforts by the petroleum industry, including the Defendants. The CITGO entities

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state that many major companies within the petroleum industry actively resisted the oxygen
content requirement of the RFG Program.
10.

The CITGO entities deny their decision to use MTBE as an oxygenate was

solely based on cost considerations.
C.

Allegations Regarding the Production of MTBE

11.

CITGO manufactured MTBE at certain times at its refinery located in Lake

Charles, Louisiana. CRCC manufactured MTBE at certain times at its refinery in Corpus
Christi, Texas. CITGO P.R. and CITGO International did not own or operate a refinery
and did not manufacture MTBE.
D.

Allegations Regarding the Sale or Distribution of Gasoline with MTBE
or TBA

12.

CITGO admits that it sold gasoline for resale or arranged for the sale of

gasoline (for one or more time periods between 1983 and the present) to marketers and
wholesalers in at least a portion of one or more of the following states or commonwealths
in which Plaintiffs have pending cases in MDL 1358: California, Pennsylvania, and the
Commonwealth of Puerto Rico. Some of this gasoline may have contained MTBE before
the spring of 2006; some of it did not. Although CITGO did not manufacture TBA, it
purchased gasoline on exchange that may have contained TBA. CRCC denies that it
marketed or distributed gasoline. CITGO International sold or arranged for the sale of
gasoline to CITGO P.R. CITGO P.R. supplied gasoline to independent distributors in the
Commonwealth of Puerto Rico for a short period of time.
13.

CITGO does not currently own, operate or control gasoline stations and has

not done so historically except in limited situations prior to 1985 in Pennsylvania and
Orange County, California. CITGO has never owned, operated or controlled a gasoline
4

station in the Commonwealth of Puerto Rico. Furthermore, none of the other CITGO
entities has ever owned, operated or controlled gasoline stations.
E.

Allegations Regarding the Properties and Behavior of MTBE

14.

The CITGO entities admit that MTBE is an aliphatic ether that does not

occur naturally. The CITGO entities state that there are various methods for the production
of MTBE and that one method of production is from methanol and isobutylene.
15.

The CITGO entities 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 substances, such as the BTEX compounds, they are less soluble and mobile
in water than other substances sometimes blended into gasoline, such as ethanol. The
CITGO entities further state that MTBE’s behavior in the environment – and its behavior
relative to the BTEX compounds – is dependent on a variety of site-specific factors,
including the nature or method of its release, the geological setting, and environmental and
microbial factors.
16.

The CITGO entities state that while under certain conditions MTBE may

biodegrade less readily than some other substances of gasoline, MTBE has been found to
naturally attenuate and biodegrade in numerous ways.
17.

The CITGO entities deny that they breached any duties to Plaintiffs, any

government agency or the general public regarding MTBE.
F.

Allegations Regarding the Properties and Behavior of TBA

18.

The CITGO entities admit that TBA is formed in the reaction of isobutylene

and water. The CITGO entities deny they manufactured TBA. The CITGO entities are
without knowledge or information sufficient to form a belief as to the truth of the

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allegations in Plaintiffs’ complaints concerning the use of TBA as an oxygenate in
gasoline.
19.

The CITGO entities state that solubility and mobility of TBA are relative

properties and admit that TBA is more soluble and mobile in water than certain gasoline
substances, such as the BTEX compounds. The CITGO entities further state that TBA’s
behavior in the environment – and its behavior relative to the BTEX compounds – is
dependent on a variety of site-specific factors, including the nature or method of its release,
the geological setting, and environmental and microbial factors. The CITGO entities admit
that TBA can be an intermediate product of MTBE biodegradation.
20.

The CITGO entities are without knowledge or information sufficient to

form a belief as to the truth of the remaining allegations concerning the properties,
characteristics, persistence, remediation and health effects of TBA in groundwater or its
presence in water supplies. The CITGO entities further state that the EPA has not limited
or eliminated the use of TBA.
21.

The CITGO entities object to Plaintiffs’ attempt to extend their claims and

allegations regarding MTBE to TBA or to some unidentified category of derivative and
breakdown products of MTBE.
22.

The CITGO entities deny that they breached any duties to Plaintiffs, any

government agency or the general public regarding TBA.
G.

Allegations Regarding the Taste and Odor of MTBE

23.

The CITGO entities state whether MTBE imparts taste and odor to water

depends on a variety of factors, including the MTBE concentration. The CITGO entities
state that individuals vary in their ability to detect the taste and odor of MTBE in water.

6

The CITGO entities further state that responsible federal and state regulatory agencies have
considered and adopted standards fully protective of MTBE taste and odor concerns.
H.

Allegations Regarding the Health Effects of MTBE

24.

The CITGO entities deny Plaintiffs’ allegations that they did not do enough

to determine if MTBE was safe for use in gasoline. The CITGO entities state they
supported continuing efforts to test MTBE for potential health effects and that MTBE has
been studied publicly by scientists and government agencies for many years. The CITGO
entities further state that these studies found that MTBE had a relatively low toxicity.
MTBE has never been reliably linked to cancer; indeed, major world health organizations
have long refused to list MTBE as a human carcinogen. The CITGO entities admit the
EPA in the past classified MTBE as a possible human carcinogen. The CITGO entities
admit that certain legislatures or regulatory agencies 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. The CITGO entities state
that responsible federal and state regulatory agencies have considered, adopted and
enforced standards fully protective of any alleged human health concerns related to MTBE.
I.
25.

Allegations Regarding the Storage and Handling of Gasoline
The CITGO entities, except in limited historical circumstances prior to

1985, have not owned retail gasoline stations or the underground storage tanks used at
those locations. The CITGO entities admit that gasoline can be released into the
environment from leaks in underground storage tanks (“USTs”) and by other means. The
CITGO entities deny that they had an indifferent attitude toward gasoline spills and leaks
of any size. Further answering, the CITGO entities state that gasoline handlers, consumers

7

and the general public have long been aware that gasoline should be handled carefully and
should not be spilled or leaked, irrespective of its particular components. The CITGO
entities deny that they are responsible for any handling or mishandling of gasoline by
others, or for any spills or leaks caused by or attributed to others. The CITGO entities
further note that the federal government and certain states and commonwealths have
enacted laws and regulations and engaged in enforcement efforts to upgrade gasoline
storage and dispensing equipment in order to eliminate or reduce spills and leaks, and the
CITGO entities relied on others to comply with same.
J.

Allegations Regarding MTBE and Groundwater

26.

The CITGO entities 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 CITGO entities 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 CITGO entities 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.
27.

The CITGO entities 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.
28.

The CITGO entities deny Plaintiffs’ allegations that they had knowledge of

any unique environmental harm attributable to the use of MTBE in gasoline.
29.

The CITGO entities deny Plaintiffs’ allegations that MTBE posed an

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unreasonable risk to groundwater. The CITGO entities deny that they concealed or
conveyed partial or incorrect information regarding the nature and impact of MTBE. The
CITGO entities deny that they possessed superior knowledge in comparison to
governmental agencies with respect to gasoline and MTBE. The CITGO entities 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.
30.

The CITGO entities 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.
31.

The Report of the EPA Blue Ribbon Panel on MTBE speaks for itself, and

therefore the CITGO entities deny the allegations that purport to describe or characterize
it.
32.

The CITGO entities 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 CITGO entities 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.
K.

Allegations Regarding Knowledge of MTBE Releases at Particular
Locations in the 1980s

33.

The complaints purport to describe various incidents of MTBE releases in

Maryland, New Jersey, New York, and Maine in the 1980s. The CITGO entities state that
they were not involved in any of these incidents and that they are without knowledge or
information sufficient to form a belief as to the truth of these allegations. The CITGO
9

entities deny knowing more about these incidents than what was publicly reported.
L.

Allegations Regarding the 1986 Garrett and Moreau Report

34.

The CITGO entities state that the 1986 Garrett and Moreau report speaks

for itself, and the CITGO entities therefore deny the allegations that purport to describe or
characterize it. The allegations relating to various companies’ reactions to the Garrett and
Moreau report do not relate to the CITGO entities and the CITGO entities are without
knowledge or information sufficient to form a belief as to the truth of those allegations and
on that basis deny them.
M.

Allegations Regarding
Concerning MTBE

the

Defendants’

Internal

Documents

35.

The CITGO entities are without knowledge or information sufficient to

form a belief as to the truth of Plaintiffs’ allegations regarding certain communications or
documents authored by employees of companies other than the CITGO entities. The
CITGO entities deny that any other companies acted on their behalf. The CITGO entities
further state that the January 1996 memorandum summarizing some of the matters
discussed during a conference call held among members of the API’s Soil and Groundwater
Technical Task Force speaks for itself and the CITGO entities deny any allegations that
purport to describe or characterize it.
N.

Allegations Regarding Representations about MTBE

36.

The CITGO entities deny that they formed or participated in any task force

or committee for the purpose of concealing information about MTBE from the Plaintiffs,
the EPA or any other government agency, or the public. CITGO admits that it was a
member of American Petroleum Institute (“API”) from January 1994 – December 2002.
CITGO was not a member of the Oxygenated Fuels Association (“OFA”). None of the
10

other CITGO entities were members of either API or OFA.
37.

The complaints contain various allegations regarding alleged industry

misrepresentations about MTBE.

The CITGO entities deny that they made any

misrepresentations about MTBE to the Plaintiffs, the EPA or any other government agency,
or the public, either directly or indirectly through an industry organization or trade group.
The CITGO entities deny that MTBE, TBA, or gasoline containing MTBE or TBA are
defective products.
O.

Allegations Regarding Representations About Testing Under the Toxic
Substances Control Act (TSCA) in the Late 1980s

38.

The 1986 Notice published by the federal Interagency Testing Committee

(“ITC”) speaks for itself and therefore the CITGO entities deny the allegations that purport
to describe or characterize it.
39.

The CITGO entities are without knowledge or information sufficient to

form a belief as to the truth of the allegations concerning ARCO’s representations or
communications to the ITC concerning MTBE.

The CITGO entities are without

knowledge or information sufficient to form a belief as to the truth of the allegations
concerning the ITC’s reliance on any ARCO representation or communication. The
CITGO entities deny that ARCO’s comments, representations or communications to the
ITC were submitted on their behalf or with their approval.
40.

The CITGO entities are without knowledge or information sufficient to

form a belief as to the truth of the allegations concerning representations by ARCO and
Exxon to the EPA at the EPA’s December 17, 1986 Public Focus Meeting, which they did
not attend. The CITGO entities deny that they assented to any representations made by
ARCO and Exxon at the December 17, 1986 meeting. The CITGO entities deny that they
11

attempted to convince the EPA that additional testing of MTBE was not needed.
41.

The CITGO entities deny that they were members of the multi-company

task group formed by certain MTBE Defendants and known as the “MTBE Committee.”
The complaints purport to describe or characterize documents from or by the MTBE
Committee, which speak for themselves, and on that basis the CITGO entities deny those
allegations.
42.

The CITGO entities deny that they made any misrepresentations regarding

MTBE testing to the ITC or the EPA, directly or indirectly. The CITGO entities deny that
they obstructed health and environmental safety research concerning MTBE, or concealed
information concerning MTBE and groundwater. The CITGO entities 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.
43

The CITGO entities 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 CITGO entities.
P.

Allegations Regarding the Requirements and Effects of the 1990
Clean Air Act Amendments

44.

The CITGO entities admit that prior to 1990, the federal government was

preparing to take action to address the nation’s smog problem. With passage of the Clean
Air Act Amendments (“CAAA”) in 1990, the federal government mandated an increase in
the use of oxygenates in gasoline. The CITGO entities state that although the CAAA did
not mandate MTBE as the only oxygenate, in practical terms the CAAA did compel
MTBE’s use. The EPA and Congress knew that the oxygen requirements of the CAAA
12

could not be met without the use of MTBE. The CITGO entities admit the federal
government mandated the use of RFG containing at least 2% oxygen by weight in certain
areas of the country that were non-attainment for ozone. The CITGO entities admit the
federal government mandated an increase in the use of oxygenates (at least 2.7% oxygen
by weight) in certain metropolitan areas to reduce carbon monoxide emissions during fall
and winter months (“the Oxy Fuel Program”). The CITGO entities admit that RFG and
Oxy Fuel may have contained between 10% and 15% MTBE by volume, or up to 10%
ethanol, to meet federal government mandates concerning oxygen content.
45.

The CITGO entities deny that they misled the EPA or Congress during

consideration and passage of the 1990 CAAA and implementing regulations. The CITGO
entities further deny that they worked individually, or in concert with any other party or
Defendant, to block the use of ethanol as an alternative to MTBE as a permitted oxygenate.
The CITGO entities deny that ethanol was available in sufficient supply to meet the
demand for oxygenated gasoline in the RFG and Oxy Fuel regions.
46.

The CITGO entities further state that they complied with the legal

requirements of the lead phase-out, the RFG Program and the Oxy Fuel Program. The
CITGO entities further state that several federal and state agencies concluded that the use
of MTBE in gasoline contributed substantially to reducing air pollution.
Q.

Allegations Regarding Representations About Gasoline With MTBE

47.

The CITGO entities deny that they misrepresented the properties of MTBE

to Plaintiffs, any government agency, gasoline handlers or the public, or withheld
information about MTBE. The CITGO entities are without knowledge or information
sufficient to form a belief as to the truth of the allegations concerning when the public

13

started to become aware of potential risks associated with releases of gasoline containing
MTBE.
48.

The CITGO entities 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 CITGO entities
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 CITGO entities deny
the allegations that purport to summarize and characterize these documents on that basis.
49.

The CITGO entities deny they knew, or should have known, that MTBE

was difficult and costly to remediate. The CITGO entities state that they lack knowledge
or information sufficient to form a belief as to the truth of the allegations concerning what
alternatives gasoline handlers and the general public might have sought or the
circumstances under which gasoline handlers and the public might have demanded MTBEfree gasoline.
50.

The CITGO entities deny they breached any duty to warn or deprived

Plaintiffs, any government agency, gasoline handlers or the public of any facts.
R.

Allegations Regarding the Use of MTBE in Gasoline After Creation of
the RFG Program

51.

The CITGO entities 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 CITGO entities deny the
implication that the use of MTBE or that a certain concentration of MTBE in their gasoline
14

was illegal or improper. The CITGO entities deny that MTBE became its “oxygenate of
choice” and that it “decided to forego safer oxygenates, such as ethanol.” The CITGO
entities 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 CITGO entities state that their
products fully complied with all applicable state, commonwealth and federal requirements
regarding fuel content.
S.

Allegations Regarding the Claimed Inability to Identify the Source of
Gasoline

52.

The CITGO entities admit that the distribution of gasoline can sometimes

be complex, and that refiners sometimes exchange product. The CITGO entities deny that
a release of gasoline can never be traced to a specific source. In the vast majority of release
incidents, the source of the gasoline can be identified.
T.

Allegations Purporting to Quote or Summarize Documents

53.

Numerous paragraphs in the complaints purport to quote from or summarize

documents, statutes and regulations.

These materials speak for themselves.

The

documents, statutes and regulations referenced by Plaintiffs are the best evidence of their
content, and the CITGO entities therefore deny Plaintiffs’ attempts to summarize or
characterize the contents of these written materials.
U.

Allegations Regarding Particular Claims or Counts

54.

In response to the portions of the complaints purporting to state particular

common law or statutory claims, the CITGO entities incorporate each paragraph of this
Tenth Amended Master Answer as if fully restated herein. The CITGO entities deny they
are liable for any legal claim in any of the MDL 1358 complaints.
15

V.

Allegations Regarding Claimed Injuries or Damages

55.

Some complaints assert claims about specific wells or water resources,

alleged releases from specific sites, the extent of alleged releases, the reliance on
groundwater for drinking water, amounts expended to address alleged releases, and
subrogation rights. The CITGO entities are without knowledge or information sufficient
to form a belief as to the truth of such allegations, and therefore deny same. The CITGO
entities believe that publicly available information and other evidence will demonstrate
that many of the wells or water resources allegedly at issue have not been impacted by
MTBE or TBA, or have been impacted at levels well below action standards for MTBE or
TBA.
56.

With regard to alleged damages, the allegations require no further answer.

To the extent that further answer is deemed necessary, the CITGO entities deny that
Plaintiffs are entitled to any relief.
W.

Plaintiffs’ Demands for Jury Trials

57.

Plaintiffs demand 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
CITGO entities admit that the Plaintiffs demand jury trials, but deny that they are entitled
to them.
X.

Allegations Regarding Intentional, Willful, Deliberate, or Negligent
Acts

58.

The CITGO entities deny that they intentionally, willfully, deliberately,

recklessly or negligently committed any acts that allegedly caused or foreseeably could
have caused harm to Plaintiffs or any other person or entity.
Y.

Allegations of Representational Standing
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59.

The Orange County Water District has 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 Plaintiffs.
On the basis of these Court orders, the CITGO entities decline to answer these allegations.
To the extent any answer is deemed necessary, the CITGO entities deny that any Plaintiff
has standing to bring claims in a representational capacity.
Z.

Certain Plaintiffs’ Allegations of Ownership of the Groundwater
Resources

60.

Certain 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 CITGO
entities deny that these Plaintiffs have standing to bring certain claims on behalf of
themselves or any other person or entity.
AA.

Certain Plaintiffs’ Allegations of Injury to Natural Resources

61.

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 CITGO entities 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.
62.

The CITGO entities further admit that the police power of certain Plaintiffs

extends to the protection and conservation of certain natural resources which are not the
17

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 CITGO entities deny that they are liable for natural
resources damages.
BB.

Certain Plaintiffs’ Allegations of Parens Patriae Status

63.

The CITGO entities 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 CITGO entities further deny
that parens patriae status is appropriate for commonwealth-wide or state-wide relief where
there is an insufficient showing of MTBE impact.
CC.

Allegations Regarding Business Practices

64.

Some complaints contain allegations that Defendants engaged in deceptive

or unfair trade practices. The CITGO entities 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 CITGO entities 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 CITGO
entities deny the allegations that relate to Counts VI and VIII of the Commonwealth of

18

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 CITGO entities further deny that they deceived, misled, or
defrauded any governmental agency, customer or consumer.
DD.

Allegations Regarding Claims of Trespass

65.

Some complaints contain allegations that Defendants are liable for trespass.

The CITGO entities 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 CITGO entities
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 CITGO entities 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.
EE.

Allegations Regarding Claims of Public Nuisance

66.

Some complaints contain allegations that Defendants are liable for public

nuisance. The CITGO entities deny that they engaged in any such activity or are liable for
any such claim. On July 2, 2015 and again on August 2, 2021, the Court dismissed the
Commonwealth of Pennsylvania’s claim for public nuisance with prejudice. On the basis
of the Court’s orders, the CITGO entities decline to answer Count III of the Second
Amended Complaint filed by the Commonwealth of Pennsylvania and any allegations
relating to its public nuisance claim. To the extent an answer is deemed necessary, the

19

CITGO entities deny the allegations that relate to Count III of the Commonwealth of
Pennsylvania’s Second Amended Complaint and deny that they are liable for any public
nuisance.
FF.

Regulatory Powers of Other Agencies

67.

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 CITGO entities deny that these Plaintiffs
possess any such right. The CITGO entities 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 clean up
actual or suspected release of MTBE and/or TBA, including determining when sufficient
cleanup has been achieved.
II.

GENERAL DENIAL OF REMAINING ALLEGATIONS
The CITGO entities deny each and every remaining allegation in the MDL

complaints.
III.

RESERVATION OF RIGHT TO AMEND
The CITGO entities reserve the right to further amend this Tenth Amended Master

Answer.
IV.

AFFIRMATIVE AND SEPARATE DEFENSES APPLICABLE TO ALL
CASES 4

4

The CITGO entities incorporate by reference the Responses and Objections of CITGO and CRCC to
Plaintiff’s Eighth Set of Special Interrogatories, dated January 7, 2021, as though set forth in these affirmative
and separate defenses, a copy of which will be made available to the Court upon request.

20

By asserting these affirmative and separate defenses that are applicable to all cases
pending in MDL 1358, the CITGO entities do not assume the burden of proving any facts,
issues, or elements of a cause of action that they would not otherwise bear. Furthermore,
all of these affirmative and separate defenses are asserted and pled in the alternative and
do not constitute an admission of liability or an admission that Plaintiffs are entitled to any
relief whatsoever. For their affirmative and separate defenses applicable to all cases
pending in MDL 1358, the CITGO entities state as follows:
1.

Plaintiffs’ claims 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. MTBE was added to gasoline in full compliance with the Federal Clean Air Act,
including the amendments thereto, and with the EPA’s approval. Congress anticipated,
and even intended, that MTBE would be the oxygenate used 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.

Plaintiffs’ claims are barred in whole or in part because at all relevant times,

the CITGO entities’ actions and products complied with and were undertaken pursuant to
applicable federal, state, commonwealth, and local laws, rules, regulations and
specifications. These federal, state, commonwealth and/or local authorities and agencies
mandated, directed, approved, permitted and/or ratified the use of MTBE in gasoline.
Federal law required an oxygenate in much of the gasoline sold in the United States 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 CITGO entities did not
determine the formulation of gasoline sold in a particular state and relied on others for the

21

supply of gasoline. In addition, the market in a particular state established the use of
reformulated gasoline with MTBE, something that Congress anticipated, and even
intended, when it passed the RFG Program.
3.

Plaintiffs’ claims are barred in whole or in part because the alleged acts and

conduct of the CITGO entities conformed to and were conducted in accordance with and
pursuant to statutes, government regulations and industry standards, and were based upon
the state of knowledge existing at all material times. The CITGO entities chose to use
MTBE and to sell gasoline containing MTBE after considering a variety of factors,
including but not limited to, costs, logistics, availability, the overall characteristics of the
oxygenate and whether the oxygenate was federally approved. The EPA rigorously
collected information about MTBE from a wide variety of sources and approved its use.
The CITGO entities relied on the EPA and Congressional approval of MTBE as an
acceptable gasoline additive and on a state’s decision to not ban the use of MTBE. The
CITGO entities’ analysis of market factors and their reliance on others for the
determinations regarding MTBE’s acceptance 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.
4.

Plaintiffs’ claims are barred in whole or in part because the relief sought 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. This Court should
decline to exercise jurisdiction over these claims pursuant to the doctrines of primary
jurisdiction and separation of powers. The relief Plaintiffs seek is already occurring as the
alleged MTBE releases and discharges are being investigated and remediation efforts,

22

where deemed necessary, are being performed.
5.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs have a

plain, common, adequate and speedy remedy at law. Any harm suffered by Plaintiffs,
which harm the CITGO entities specifically deny, can be ameliorated by an award of
damages against those parties responsible for the releases and/or discharges that caused the
alleged impact (the “Responsible Parties”). The CITGO entities specifically deny they
caused Plaintiffs any harm, that they are responsible for any of the alleged releases or
discharges or that they are liable for any damages or injuries. Plaintiffs also have
administrative remedies available through federal and state environmental agencies to
ensure the Responsible Parties perform any necessary remediation work.
6.

Plaintiffs are barred from seeking liability against the CITGO entities for

design defects because 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
would be impermissible given that Congress, through Section 211 of the Clean Air Act,
authorized the EPA, and not the courts, to perform the cost-benefit analysis. Congress and
the EPA conducted extensive investigation and cost-benefit analyses as part of their
approval of MTBE as a gasoline oxygenate and in developing the oxygenate requirements
in the 1990 Clean Air Act Amendments.
7.

Plaintiffs’ claims are barred in whole or in part because if it is determined

that Plaintiffs, or anyone on whose behalf Plaintiffs are suing, were injured, which the
CITGO entities deny, such injury is outweighed by the social utility, convenience and
public service rendered by the CITGO entities’ actions. Congress and the EPA conducted
extensive investigation and cost-benefit analyses as part of their initial approval of MTBE

23

as a gasoline oxygenate and in developing the oxygenate requirements in the 1990 Clean
Air Act Amendments.
8.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs assumed

the risk of all acts, injuries, and damages. Plaintiffs were fully aware of the relevant facts
about MTBE, of which they now complain, prior to adopting various programs they knew
would lead to the increased use of MTBE. Notwithstanding this knowledge, Plaintiffs
failed to take specific and timely action to address the same, including, but not limited to,
failing to implement their own MTBE action plan, and failing to adopt adequate and
effective regulatory controls and/or failing to enforce existing laws and regulations.
Plaintiffs also routinely authorized the Responsible Parties to cease remediation of gasoline
release sites even though MTBE remained present in the soil and/or groundwater.
9.

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

received or may receive the requested relief from a state or federal governmental agency,
including, but not limited to the EPA, any state-specific underground storage tank
insurance fund, or from any other source. These claims are barred because the CITGO
entities assert their entitlement to an appropriate set-off or reduction of any judgment
entered against them. Further, any award of damages for treatment of MTBE must be setoff or reduced by the cost of treating other substances, regardless of the presence of MTBE.
10.

Plaintiffs’ claims are barred in whole or in part based on the election of

remedies doctrine. Plaintiffs are able to pursue recovery from other sources, such as from
the Responsible Parties or from public or publicly funded agencies, which is incompatible
with the remedies and recovery sought. The relief sought by Plaintiffs can be and/or
already is being provided by the governmental agencies uniquely equipped to handle that

24

task and is charged with doing so.
11.

Plaintiffs’ claims are barred to the extent product liability lawsuits of the

nature filed by Plaintiffs effectively amount to regulation by state law (i.e., by the legal and
practical effect of a judgment rendered pursuant to state common law) of activities that fall
within interstate commerce governed exclusively by Congress pursuant to the Commerce
Clause. Thus, the relief sought would pose unreasonable barriers and substantial burdens
on interstate and/or international commerce in violation of the Commerce Clause of the
United States Constitution.
12.

Plaintiffs’ claims fail to state claims upon which relief may be granted and

should, therefore, be dismissed pursuant Fed. R. Civ. P. 12(b)(6).
13.

Plaintiffs’ claims are barred to the extent Plaintiffs, who are public entities

and/or authorities, improperly delegated the power to prosecute their claims to private
attorneys. Such delegation is against public policy.
14.

Plaintiffs’ claims are barred in whole or in part because they lack the

capacity to sue. Plaintiffs have not suffered any cognizable harm and have not incurred
any present damages.
15.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs suffered

no losses or injuries that were proximately caused by the CITGO entities. The release or
escape of MTBE gasoline from containment is the proximate cause of any alleged injury
and, except in limited historical circumstances, CITGO did not own, operate, control or
release the MTBE that is alleged to have been released. Those releases were caused by
others, which events constitute superseding, supervening or intervening events which were
the proximate cause of Plaintiffs’ alleged damages.

25

16.

Plaintiffs’ claims are barred in whole or in part because the alleged injuries

and damages, if any, suffered as a result of conduct legally attributable to the CITGO
entities are de minimis. Therefore, any injunction would pose a disproportionate hardship
on the CITGO entities, 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 CITGO entities as a matter of law. Further, such claims cannot give rise to liability
under the de minimis non curat lex doctrine.
17.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs do not

have a legally cognizable injury unless or until the alleged release of MTBE and/or TBA
exceeds applicable action levels. Plaintiffs cannot satisfy the actual injury requirement for
any of their causes of action where the levels of MTBE have been deemed acceptable under
governing law.
18.

Plaintiffs’ claims are barred in whole or in part because they are moot. In

the Spring of 2006 the CITGO entities, and the United States petroleum industry as a
whole, stopped blending MTBE in gasoline for domestic consumption. Thus, no additional
release of MTBE gasoline can occur and Plaintiffs have already identified and are
addressing releases of MTBE gasoline under their respective state remediation programs.
19.

Plaintiffs’ claims are barred in whole or in part by the doctrine of laches.

Plaintiffs waited decades to assert their claims. Plaintiffs’ unreasonable and inexcusable
delay in filing these actions caused substantial prejudice to the CITGO entities.
20.

Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

Plaintiffs intentionally delayed filing suit with full knowledge of all of the facts upon which
they base their claims and have taken positions as a litigant that are inconsistent with their

26

positions and conduct as a regulator on which the regulated community relied.
21.

Plaintiffs’ claims are barred in whole or in part by the applicable provisions

of the pertinent statutes of limitations.
22.

Plaintiffs are estopped from asserting any of the purported claims against

the CITGO entities because the Plaintiffs have been aware of the characteristics of MTBE
about which they now complain for decades and have taken positions as litigants that are
inconsistent with their positions and conduct as regulators on which the regulated
community relied.
23.

Plaintiffs’ claims are barred in whole or in part because 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 were to be shifted in the future, the CITGO entities deny that they contributed to
any of the alleged MTBE releases, which form the bases of Plaintiffs’ claims.
24.

Plaintiffs’ failure to warn claims are barred in whole or in part because the

potential for harm to the environment when MTBE or TBA, or gasoline containing MTBE
or TBA, is released into the environment is open, obvious and generally known.
25.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs failed to

join indispensable or necessary parties.

Plaintiffs failed to sue the necessary or

indispensable parties, which include, but are not limited to, downstream handlers that own
the underground storage tanks; gasoline service stations that are independently owned and
not operated by major oil companies; numerous jobbers; numerous rack marketers; various
gasoline traders; gasoline blenders or owners of gasoline blending facilities; manufacturers
of underground storage tanks; merchant producers of neat MTBE; importers of neat

27

MTBE; and hundreds of spillers of gasoline and the Responsible Parties.
26.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs’ efforts to

impose liability on the CITGO entities without proof of causation violate the Due Process
Clauses and other clauses of the U.S. Constitution and state and commonwealth
constitutions.
27.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs’ claimed

injuries were caused in whole or in part by others, whose actions were not controlled by or
caused by the CITGO entities. The CTIGO entities did not own, operate or control the
gasoline service stations or the underground storage tanks from which the releases are
alleged to have occurred. The CITGO entities are also not the successors in interest to the
owners of the gasoline service stations or the underground storage tanks from which the
releases are alleged to have occurred.
28.

Plaintiffs’ claims are barred in whole or in part because at all times, the

CITGO entities acted with due care and took reasonable precautions against foreseeable
acts or omissions of any such third parties and any foreseeable consequences. The CITGO
entities operated as a bulk supplier of reformulated gasoline and other gasoline products
(including gasoline that contained MTBE). The CITGO entities encouraged the safe
handling and containment of all gasoline products irrespective of the specific composition
of the gasoline. The CITGO entities required its distributors to comply with all applicable
environmental and safety regulations. The CITGO entities also provided warnings to its
customers in the form of MSDSs which disclosed, identified and/or included the
characteristics of MTBE and/or reformulated gasoline.
29.

Plaintiffs’ claims are barred in whole or in part because all gasoline products

28

sold or distributed for resale by the CITGO entities were properly designed, formulated,
prepared and otherwise not defective in any respect. Federal law required an oxygenate in
much of the gasoline sold in the United States. MTBE was added to gasoline in full
compliance with the Federal Clean Air Act, including the amendments thereto, and with
the EPA’s approval. CITGO’s gasoline containing MTBE complied with all applicable
regulatory requirements, performed safely, and was superior or equivalent in total
cost/benefit performance to any reasonably available alternative known and practicable at
the time of such design, formulation, and preparation.
30.

Plaintiffs’ claims are barred in whole or in part because to the extent

required, the CITGO entities provided proper warnings, information, and instructions in
the form of MSDSs which disclosed, identified and/or included the characteristics of
MTBE and/or reformulated gasoline. The recipients of these MSDSs included, but were
not limited to, distributers, other gasoline refiners, marketers, sellers, purchasers, resellers
and jobbers. The MSDSs were provided pursuant to generally recognized and prevailing
standards in existence at the time. Plaintiffs also failed to allege that additional warnings
would have prevented the alleged damage.
31.

Plaintiffs’ claims are barred in whole or in part because there is no duty to

warn against the release of gasoline, including gasoline containing MTBE or TBA, into the
environment because it is common knowledge that gasoline (with or without MTBE)
should not be released into the environment.
32.

Plaintiffs’ claims are barred in whole or in part because any gasoline

containing MTBE or TBA that was manufactured, sold, or distributed for resale by the
CITGO entities was not unreasonably dangerous when made. Federal law required an

29

oxygenate in much of the gasoline sold in the United States. MTBE was added to gasoline
in full compliance with the Federal Clean Air Act, including the amendments thereto, and
with the EPA’s approval.

CITGO’s gasoline containing MTBE complied with all

applicable regulatory requirements, performed safely, and was superior or equivalent in
total cost/benefit performance to any reasonably available alternative known and
practicable at the time of such design, formulation, and preparation.
33.

Plaintiffs’ claims are barred in whole or in part by the learned or

sophisticated intermediary doctrine and/or because the CITGO entities sold their products
to knowledgeable and sophisticated purchasers and any alleged injury was caused by the
failures of such intermediaries and purchasers to observe known standards of care. CITGO
operated as a bulk supplier of reformulated gasoline and other gasoline products (including
gasoline that contained MTBE). Assuming arguendo that any warnings were in fact
required for MTBE or gasoline that contained MTBE, the CITGO entities provided
warnings to their customers in the form of MSDSs which disclosed, identified and/or
included the characteristics of MTBE and/or reformulated gasoline. Such recipients
included, but were not limited to distributors, other gasoline refiners, marketers, sellers,
purchasers, resellers and/or jobbers. In addition, the MSDSs were publicly available for
anyone who wanted them and were also available on the internet. The recipients were
better situated to pass along any necessary warnings to tank owner/operators or end users
of the reformulated gasoline, because the CITGO entities did not have direct contact with
the gasoline service station operators or end users of the reformulated gasoline and/or
gasoline containing MTBE.
34.

Plaintiffs’ claims are barred in whole or in part because any injury, damage

30

or loss sustained by the Plaintiffs was proximately caused by and/or contributed to by
Plaintiffs’ own negligence, carelessness, and/or omissions. Plaintiffs were fully aware of
the characteristics of MTBE about which they now complain and of the alleged risks that
releases of gasoline could pose to their water resources.

Plaintiffs adopted various

programs that they knew would lead to the increased use of MTBE gasoline and then
negligently failed to take specific and timely actions to address that alleged risk, including
with respect to ownership, operation, and/or remediation of State-owned UST sites.
Through these and other actions, the Plaintiffs contributed, in whole or in part, to their
alleged injury related to the use of MTBE in gasoline.
35.

Plaintiffs’ claims are barred in whole or in part because they 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. The
claims for remediation or restoration of groundwater to its “original condition” at one or
more sites are not ripe because the Responsible Party is continuing to investigate and/or
remediate any MTBE in groundwater at or near the site and, therefore, Plaintiffs have not
and may never incur any injury or damage with respect to said site(s). Further, upon
information and belief, no harmful levels of MTBE have been detected in the public water
supplies and much of if not all of the alleged detections of MTBE that forms the basis of
Plaintiffs’ claims do not present a real or imminent threat of harm, as required in order to
present a justiciable controversy in a court of law. Additionally, to the extent Plaintiffs
seeks to “extrapolate” injury without actual proof of such injury, their claims as to injuries
that have not yet and may never take place are not ripe.
36.

Plaintiffs’ claims are barred in whole or in part because the CITGO entities

31

owed no duty of care to Plaintiffs in connection with the matters alleged in the complaints.
37.

Plaintiffs’ claims fail because any risks associated with MTBE gasoline

could have been avoided through the exercise of reasonable care by third parties when
handling, storing or using the product or better enforcement of the applicable underground
storage tank regulations.
38.

Plaintiffs’ claims are barred in whole or in part because there is no legal

relationship upon which any duty could possibly be owed by the CITGO entities to
Plaintiffs, and therefore, Plaintiffs’ causes of action fail as a matter of law.
39.

Plaintiffs’ negligence claims fail because the alleged injuries, if any, are

too remote from the CITGO entities’ alleged misconduct.
40.

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

protected by the First Amendment to the United States Constitution. To the extent
Plaintiffs’ claims are based on the CITGO entities’ communications with federal or state
governments, including their agencies, about issues associated with MTBE, the First
Amendment protects this speech. The imposition of liability or damages based on these
communications would impermissibly restrict the CITGO entities’ rights.
41.

Plaintiffs’ claims are barred in whole or in part to the extent the injuries and

damages, if any, alleged by Plaintiffs are caused in whole or in part by the presence of
substances other than MTBE or TBA (e.g., the BTEX compounds). Under Plaintiffs’ own
legal theories, the CITGO entities are not liable for injuries or damages caused by
substances other than MTBE or TBA. In the event liability is assessed against the CITGO
entities, such liability must be reduced where, and to the extent that, other substances –
about which Plaintiffs do not complain – contributed to the alleged injury.

32

42.

Plaintiffs’ claims are barred in whole or in part because any injury, damage

or loss sustained by the Plaintiffs in connection with the subject matter of these actions
were not reasonably foreseeable. MTBE was added to gasoline in full compliance with the
Federal Clean Air Act and with the EPA’s approval. The CITGO entities reasonably
believed that the EPA - the agency delegated with authority over fuel additives and
environmental protection - determined that the environmental and public health benefits of
using MTBE in gasoline outweighed any potential environmental harms.
43.

Plaintiffs’ claims for joint and several liability fail because their injuries, if

any, may be reasonably apportioned among the Defendants, because the alleged acts and
omissions of the Defendants, including the CITGO entities, are divisible and distinct.
Therefore, no Defendant is jointly and severally liable to Plaintiffs.
44.

Plaintiffs’ claims are barred to the extent they failed to mitigate their

damages, if any. Plaintiffs were fully aware of the relevant facts about MTBE, of which
they now complain, and adopted various programs they knew would lead to increased use
of MTBE. Notwithstanding this knowledge, Plaintiffs failed to take specific and timely
action to address the same, including, but not limited to, failing to implement their own
MTBE action plan, failing to adopt adequate and effective regulatory controls and/or
failing to enforce existing laws and regulations.
45.

Plaintiffs’ claims are barred in whole or in part to the extent they released,

settled, entered into an accord and satisfaction with respect to, or otherwise compromised
their claims.
46.

Plaintiffs lack 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

33

claimants who received the USTIF funds. Plaintiffs also lack standing to bring suit for
alleged damages incurred by their residents, citizens, or consumers, including claims for
injury or testing at private wells and claims under the Unfair Trade Practices and Consumer
Protection Law.
47.

Plaintiffs’ claims for punitive damages are barred and violate the Due

Process Clauses of the United States Constitution and certain state and commonwealth
constitutions to the extent: (a) the law governing punitive damages provides inadequate
procedural protections against arbitrary, excessive or erroneous awards; (b) the CITGO
entities lacked adequate notice either of the type of conduct that could warrant an award of
punitive damages or of the amount such damages could be awarded; (c) any award of
punitive damages bear a close relationship to appropriate civil fines or penalties established
by the legislature or administrative agencies; (d) there is impermissible discrimination
against corporate defendants, such as the CITGO entities, that are organized under the laws
of other states and that maintain their principal places of business in other states; (e) any
claim is based on conduct by the CITGO entities that occurred outside the relevant state or
commonwealth; (f) the state or commonwealth permits introduction of evidence of the
CITGO entities’ financial condition with respect to the quantum of punitive damages; (g)
the CITGO entities’ conduct that allegedly warrants punitive damages is unrelated to the
Plaintiffs’ alleged harm; and (h) the law governing punitive damages does not require that
the jury be instructed upon, and make specific findings of fact with respect to: (1) each of
the five reprehensibility factors set out in State Farm Mutual Automobile Insurance Co. v.
Campbell, 538 U.S. 408, 419 (2003); (2) the constitutional factors that govern the
permissible ratio of punitive damages to compensatory damages; (3) the comparable civil

34

fine that could be imposed on the Defendants for the conduct in question.; (4) the direct
relationship between the CITGO entities’ conduct and the specific injury allegedly suffered
by the Plaintiffs; and, (5) the exclusion of all items of compensatory damage from the
quantum of punitive damages.
48.

Plaintiffs’ claims for punitive damages are barred by the Excess Fines

Clause of the United States Constitution and similar clauses of the relevant state and
commonwealth constitutions.
49.

Plaintiffs’ claims for punitive damages fail because the CITGO entities did

not engage in any conduct that was reckless, willful, wanton, malicious, outrageous,
oppressive or that otherwise could support such a claim. The CITGO entities acted in
accordance with all applicable laws and regulations.
50.

Plaintiffs’ claims are barred to the extent they failed to show any actual

damages with reasonable certainty and precision, and their claims are substantially
speculative and conjectural.
51.

Plaintiffs’ claims for natural resource damages are barred to the extent

Plaintiffs do not own or have a trusteeship interest in the property and/or natural resources
allegedly impacted.
52.

Plaintiffs’ claims are barred to the extent the Plaintiffs are not users or

consumers of gasoline containing MTBE and no injury alleged is the result of using or
consuming gasoline containing MTBE.
53.

If there was a less dangerous alternate design, without admitting that there

was and without assuming the burden of proof on this issue, the CITGO entities did not
and could not have known of such an alternate design at the time.

35

54.

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.
55.

Plaintiffs’ claims fail because there was not a safer alternative that was

available in sufficient supply at the relevant time to meet the need and demand for the
product.
56.

Plaintiffs’ claims relating to the Material Safety Data Sheets fail in whole

or in part to the extent the information contained therein is governed by federal
requirements or to the extent federal agencies have exclusive jurisdiction to pursue claims
relating to information contained in an MSDS.
57.

Plaintiffs’ claims are barred in whole or in part because Plaintiffs did not

reasonably rely on any representation, disclaimer, warning, or other act or omission of the
CITGO entities.
58.

Plaintiffs’ claims are barred to the extent Plaintiffs seek any relief

inconsistent with the applicable state, commonwealth or federal regulatory scheme for
addressing releases.
59.

The CITGO entities are entitled to total or partial indemnity from the

Responsible Parties for the Plaintiffs alleged injuries or damages, if any, in an amount in
direct proportion to their relative culpability.
60.

Plaintiffs’ claims are barred by the principles of due process and separation

of powers, as the judiciary’s retroactive imposition of tort liability for use of MTBE
conflicts with the actions and decisions of both the United States’ and the legislative and
executive branches of state government – including, but not limited to, approval for the use

36

of MTBE in gasoline; creation of the RFG Program; approval for the use of MTBE in
reformulated gasoline; decisions to opt-in and/or remain in the RFG Program; decisions to
not ban the use of MTBE; decisions to implement any ban of MTBE at a later period of
time; and the creation and implementation of state and commonwealth legislative and
regulatory schemes for addressing the release of gasoline and funding for same.
61.

Plaintiffs’ claims fail to the extent any attempted application of a collective

liability theory, including but not limited to market share liability, is inappropriate and
violates principles of due process, because: (a) not all gasoline contains or contained
MTBE and not all gasoline is fungible; (b) market share cannot reliably predict MTBE’s
impact on the environment; (c) the identification of the parties that caused Plaintiffs’
alleged injuries is possible; (d) the extended time period covered in the complaints denies
the CITGO entities the ability to present an adequate defense; and (e) it will amount to the
retroactive imposition of liability.
62.

Plaintiffs’ claims fail to the extent using statistical evidence to prove injury

and/or damages denies the CITGO entities the ability to present an adequate defense.
63.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of unjust

enrichment. Plaintiffs will be impermissibly enriched by recovering costs from the CITGO
entities where a state, commonwealth or federal authorized fund already exists to address
response actions pertaining to the release of gasoline containing MTBE or where the
Responsible Parties have paid or are paying for such remediation or restoration.
64.

The CITGO entities assert, and thereby preserve, any and all objections to

personal jurisdiction in any case in which personal jurisdiction over any one or more
CITGO entities is lacking, improper, contrary to law or otherwise objectionable.

37

65.

The CITGO entities reserve the right to assert additional defenses that may

be pertinent to Plaintiffs’ claims when the precise nature of such claims are ascertained
through discovery and based on facts developed as this litigation progresses.
66.

The CITGO entities incorporate by reference any affirmative defense

asserted or raised by the other Defendants in MDL 1358, regardless of whether that defense
is a general or specific defense to a claim or complaint. The CITGO entities further
incorporate by reference any affirmative defense listed in the Affirmative and Separate
Defenses Applicable to Particular States and Commonwealths section below, to the extent
such defenses are also applicable generally.
V.

AFFIRMATIVE AND SEPARATE DEFENSES APPLICABLE
PARTICULAR STATES AND COMMONWEALTHS 5

TO

By asserting these affirmative and separate defenses applicable to particular states
and commonwealths, the CITGO entities do not assume the burden of proving any facts,
issues, or elements of a cause of action that they would not otherwise bear. Furthermore,
all of these affirmative and separate defenses are asserted and pled in the alternative and
do not constitute an admission of liability or an admission that Plaintiffs are entitled to any
relief whatsoever. The CITGO entities incorporate any affirmative defense, whether
general or specific to a specific state or commonwealth, alleged by other Defendants in
MDL 1358 as though fully set forth herein. The CITGO entities further incorporate by
reference any affirmative defense listed in a state or commonwealth section, below, to the

5

The CITGO entities incorporate by reference the Responses and Objections of CITGO and CRCC to
Plaintiff’s Eighth Set of Special Interrogatories, dated January 7, 2021, as though set forth in these affirmative
and separate defenses, a copy of which will be made available to the Court upon request.

38

extent also applicable generally.
For their separate affirmative and separate defenses applicable to the particular
states and commonwealths, the CITGO entities state as follows:
CALIFORNIA
1.

The complaints and each purported cause of action are barred by the

applicable provisions of the pertinent statutes of limitations, including but not limited to,
California Code of Civil Procedure §§ 337, 337.1, 337.2, 337.15, 338, 340, 340.8 and 343.
2.

California Civil Code §§ 1431.1 through 1431.5, commonly known as

“Proposition 51,” provide that the liability of each defendant for non-economic damages,
if any, shall be several only and shall not be joint, and the CITGO entities therefore assert
that each defendant may be held liable only for the amount of non-economic damages, if
any, allocated to that defendant in direct proportion to its percentage of fault, if any.
3.

The CITGO entities allege that their liability, if any, for non-economic loss

be pro-rated according to the provisions of California Civil Code § 1431.2.
4.

The complaints and each purported cause of action are barred because

plaintiffs and/or their predecessors-in-interest and assignors are guilty of unclean hands
due to, among other things, taking actions that have increased and/or prolonged the
contamination, if any, of the aquifer with MTBE and/or other contaminants.
5.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of unjust

enrichment.
6.

As to each cause of action in the complaints, the CITGO entities allege that

the release of MTBE and/or hazardous substances, if any, and the damages resulting
therefrom, if any, were caused by an act of God.
7.

The complaints and each purported cause of action are barred because they
39

are ambiguous and uncertain.
8.

Plaintiffs did not reasonably rely on any representation, disclaimer,

warning, or other act or omission of the CITGO entities.
9.

The CITGO entities had no duty to warn plaintiff or third-parties about the

potential dangers, if any, of the product or products manufactured, packaged, labeled, used,
applied and/or removed by said third parties.
10.

The CITGO entities 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.
11.

Any express or implied warranties alleged by plaintiffs to have been made

by the CITGO entities, if made at all, were expressly disclaimed and excluded by product
labels, pursuant to the laws of the State of California, which provided that the CITGO
entities made no warranties, express or implied, concerning the products or the use of said
products that extended beyond the description on the label, and that all statements made
concerning said products applied only when used as directed.
12.

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.
13.

If there was a less dangerous alternate design, without admitting that there

was and without assuming the burden of proof on this issue, the CITGO entities did not
and could not have known of such an alternate design at the time.
14.

If there was a less dangerous alternate design, without admitting that there

40

was and without assuming the burden of proof on this issue, such an alternate design was
not feasible at the time.
15.

Plaintiff and/or others modified, altered, or changed the CITGO entities’

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.
16.

If the CITGO entities 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 CITGO entities and in a manner not reasonably foreseeable
by the CITGO entities 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 complaint,
and by reason thereof, plaintiffs are barred from recovering some or all of any damages
suffered.
17.

The CITGO entities 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.
18.

The CITGO entities allege that to the extent plaintiffs are claiming damages

for the cost of remediation due to plaintiffs’ alleged compliance with primary or secondary
drinking water standard or other regulations enacted by the State of California 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.
19.

The complaints and each purported cause of action are barred, in whole or

41

in part, by federal and state law, 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.
20.

The CITGO entities allege that the maximum contaminant level or other

drinking water standard, to the extent they form the bases of plaintiffs’ claims against the
CITGO entities, were arbitrarily and unreasonably enacted without due process and,
therefore, cannot be enforced against the CITGO entities.
21.

The complaints and each purported cause of action are barred because

plaintiffs do not own or have abandoned, lost, waived, given up, or otherwise failed to
perfect any rights, including but not limited to use rights related to any water that is the
subject of the complaints. Plaintiffs’ claims are also barred because under California law,
the water that is the subject of the complaints is the property of the State of California, not
of plaintiffs.
22.

The complaints 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 defendants or third-parties.
23.

The complaints and each purported cause of action are barred to the extent

that plaintiffs have assigned rights and claims for certain damages and other relief, if any,
to the CITGO entities, other defendants or third parties.
24.

If plaintiffs sustained any injury under the circumstances alleged in the

complaints or in any other respect, their recovery against the CITGO entities, if any, is
barred because the alleged conduct and conditions resulted from a necessity.

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25.

Plaintiffs’ claims for trespass are barred because the CITGO entities are

immune to liability for plaintiffs’ damages, if any, caused by earth movement.
26.

Plaintiffs’ claims are barred, in whole or in part, as the result of their own

knowing or negligent conduct that caused or contributed to MTBE and/or TBA
contamination giving rise to these claims.
27.

The complaints and each purported cause of action are barred because

plaintiffs do not own or have abandoned, lost, waived, given up, or otherwise failed to
perfect any rights, including but to limited to use rights related to any water that is the
subject of the complaints. Plaintiffs’ claims are also barred because under California law,
the water that is the subject of the complaints is the property of the State of California, not
of plaintiffs.
PENNSYLVANIA
1.

The Second Amended Complaint (the “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 the
Commonwealth 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

43

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 CITGO entities’ 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 the
Commonwealth 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.
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 CITGO entities. 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. CITGO 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,

44

even if CITGO 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, CITGO 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 CITGO entities, 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 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. CITGO 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. CITGO 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. CITGO relied on the EPA and Congressional
approval of MTBE as an acceptable gasoline additive and on the Commonwealth’s failure
to ban MTBE. CITGO’s analysis of market factors and reliance on the EPA’s and the

45

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, CITGO’s
warnings about gasoline containing MTBE were consistent with prevailing standards at the
time. CITGO, 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 the Commonwealth 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 pursuant to the doctrines of primary
jurisdiction and separation of powers. The relief the Commonwealth 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 the Commonwealth failed to exhaust its administrative remedies.
The Commonwealth 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.

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7.

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

the doctrine of primary assumption of risk in that the general public, by and through its
elected 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 authorize the use of MTBE as a gasoline
oxygenate. The Commonwealth was fully aware of the relevant facts about MTBE, of
which it now complains, prior to adopting various programs it knew would lead to an
increased use of MTBE in Pennsylvania.

Notwithstanding this knowledge, the

Commonwealth failed to take specific and timely action to address the same, including, but
not limited to, failing to implement its own MTBE Action Plan, and failing to adopt
adequate and effective regulatory controls and/or failing to enforce existing laws and
regulations. The Commonwealth also routinely authorized the Responsible Parties to cease
remediation of gasoline release sites even though MTBE remained present in soil and/or
groundwater.
8.

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

whole or in part to the extent the Commonwealth 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 CITGO entities 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.
9.

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

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whole or in part because the appropriate forum for the Commonwealth’s claims is an
administrative agency, and therefore all proceedings before this Court should be stayed
pending administrative resolution of the issues. The relief the Commonwealth 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.
10.

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

whole or in part by the doctrine of laches. The Commonwealth was aware of the alleged
facts which it asserts gives rise to its claims for decades before filing its complaint. The
Commonwealth has been aware of the potential for USTs to leak since at least 1984 and
has been aware of MTBE at remediation sites across Pennsylvania since at least 1995, but
waited until 2014 to file its lawsuit. Further, the Commonwealth was contemplating filing
this lawsuit at least as early as November 2004, but waited an additional ten years before
asserting its alleged claims. The Commonwealth’s unreasonable and inexcusable delay in
filing its lawsuit caused substantial prejudice to the CITGO entities. In addition, due to the
Commonwealth’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 the doctrine of laches.
11.

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

whole or in part by the applicable provisions of the pertinent statutes of limitations,
including but not limited to 42 Pa. Cons. Stat. Ann. § 5524. The Commonwealth has been
aware of the potential for USTs to leak since at least 1984. The Commonwealth has been

48

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. The Commonwealth 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 the Commonwealth’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.
12.

The Commonwealth is estopped by its conduct from asserting any of the

purported claims against the CITGO entities. The Commonwealth has been aware of the
characteristics of MTBE about which it now complains for decades and has taken positions
as a litigant that are inconsistent with its positions and conduct as a regulator on which the
regulated community relied. For example, as a regulator, the Commonwealth has not
developed any stricter MTBE standards since they were established in 1997, does not
require Public Water Systems to routinely test for MTBE and allows private well owners
to make the decision of whether to address the presence of MTBE in their private wells.
Based on these and other actions, the Commonwealth is estopped from asserting its claims
against the CITGO entities. Further, having opted certain counties in Pennsylvania into
the RFG Program, the Commonwealth is estopped from complaining about the sale or RFG
containing MTBE there, especially where the Commonwealth then considered but failed
to ban MTBE and where CITGO properly relied on the Commonwealth’s decision to allow
the use of MTBE in Pennsylvania to comply with the federal oxygenate requirements.

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13.

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

whole or in part by the doctrine of waiver. 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 Pennsylvania since at least 1985 and identified MTBE as a
contaminant present at remediation sites across Pennsylvania since at least 1995. The
Commonwealth specifically required MTBE testing at remediation sites addressing
gasoline releases since at least August 1, 1996. The Commonwealth intentionally delayed
filing suit with full knowledge of all of the facts upon which it bases its claims and has
taken positions as a litigant that are inconsistent with its positions and conduct as a
regulator on which the regulated community relied. The Commonwealth opted a number
of counties into the RFG Program (at a time when it understood MTBE’s properties and
that MTBE was the oxygenate of choice). The Commonwealth also never included MTBE
on its list of substances that Public Water Systems must routinely test for, nor does it
require routine monitoring for MTBE in either its public water supplies or its private
drinking wells. The Commonwealth also authorized the closure of remediation sites where
MTBE was still present in the groundwater, including at levels both above and below the
Commonwealth’s remediation and drinking water standards and it has issued Act 2 closure
letters at many sites for which it now seeks additional investigation and remediation.
14.

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 the
Commonwealth failed to join indispensable or necessary parties. The Commonwealth
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

50

stations in Pennsylvania that are independently owned and not operated by major oil
companies; numerous jobbers operating in Pennsylvania; numerous rack 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.
15.

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

whole or in part, based on the Commonwealth’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. The Commonwealth had
access to those records and reports. The Commonwealth’s claims are also barred, in whole
or in part, to the extent the Commonwealth had constructive notice of spills and releases
from any source.
16.

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

the extent the Commonwealth failed to mitigate its damages, if any. Fully aware of the
relevant facts about MTBE, of which it now complains, the Commonwealth adopted
various programs it knew would lead to increased use of MTBE in Pennsylvania.
Notwithstanding this knowledge, the Commonwealth failed to take specific and timely
action to address the same, including, but not limited to, failing to implement its own
MTBE Action Plan, failing to adopt adequate and effective regulatory controls and/or
failing to enforce existing laws and regulations.
17.

The Commonwealth’s claims for natural resource damages are barred, in

51

whole or in part, because the Commonwealth 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. The Commonwealth has not asserted a claim against
CITGO under that statute.
18.

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

any attempt to impose liability on the CITGO entities without specific proof of injury,
causation or damages would improperly relieve the Commonwealth of its burden of proof,
prevent the CITGO entities from asserting certain individualized defenses and exculpating
themselves at specific sites, and violate the CITGO entities’ due process rights under the
United States and Pennsylvania Constitutions.
19.

The Commonwealth’s negligence claim fails because Pennsylvania does

not recognize negligent failure to test as a cause of action.
20.

Should the CITGO entities be found liable, which liability is specifically

denied, any such liability is several, rather than joint, and should be apportioned, as they
did not act with joint tortfeasors in committing a wrong or separately to cause a single,
indivisible injury, and/or joint and several liability otherwise is inapplicable pursuant to 42
Pa. Cons. Stat. § 7102.

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21.

The Commonwealth lacks authority to bring common-law parens patriae

claims absent specific statutory authorization. Any funds awarded to the Commonwealth
must be placed into a trust to ensure such monies are used to address MTBE impact, if any,
in the Commonwealth.
22.

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

whole or in part because the Commonwealth 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 – background levels, a statewide health standard, or
a site-specific standard. At certain sites, PADEP approved cleanup based upon sitespecific standards that exceeded the statewide health standard. The Commonwealth 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.

CRCC did not conduct business in the Commonwealth or sell products for

use and distribution within the Commonwealth.
2.

Plaintiffs may not pursue their claim unless they first exhaust the financial

assurance instruments put in place by underground storage owners and operators pursuant
to the Puerto Rico Environmental Quality Board’s (“EQB”) applicable Regulation for the
Control of Underground Storage Tanks, Part IX.
3.

Plaintiffs may not pursue their claim unless they first exhaust the funds

available in the petroleum cleanup fund established by the EQB to pay for cleanup or

53

restoration of groundwater caused by petroleum releases from USTs and/or to compensate
for injuries to third parties.
4.

Plaintiffs may not file any claim unless they first exhaust the funds available

under the Leaking Underground Storage Tank (“LUST”) Trust Fund for investigation and
cleanup of areas alleged impacted.
5.

The Commonwealth’s authority is limited by those powers conferred by the

Constitution of the Commonwealth, the legislature in the laws of Puerto Rico, and the
Congress of the United States of America in federal legislation.
6.

The EQB is acting outside the bounds of its authority, which is limited by

powers delegated to it through applicable legislation.
7.

The Commonwealth is not exempted from meeting the same burden of

proof as any other plaintiff in an action for damages, in accordance with Article 1802 of
the Puerto Rico Civil Code.
8.

Future costs are not authorized by P.R. Laws Ann. tit. 32, § 2761.

9.

The Commonwealth’s complaint fails to plead the elements of a negligence

claim under Article 1802 of the Puerto Rico Civil Code with sufficient clarity, specificity,
and particularity, including the alleged damages sustained by the Commonwealth, the
alleged acts or omissions of the CITGO entities, and the causal nexus.
10.

The Environmental Public Policy Act (“EPPA”), P.R. Laws Ann. tit. 12, §

8001 et seq., displaced any common law parens patriae or public trustee authority that would
allow the Commonwealth to file for environmental-injury damages as well as the common law
and general statutory causes of action. (The Commonwealth also refers to the EPPA as the
“Public Policy Environmental Act.”).

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11.

The CITGO entities are not liable under the EPPA because they have

followed and complied with any applicable dispositions and regulations promulgated under
the EPPA.
12.

The CITGO entities are not liable under the EPPA because their actions

have not, in any manner, contributed or created any damage or degradation to any of the
Commonwealth’s natural resources.
13.

The CITGO entities are not liable under the EPPA because releases, if any,

were caused by an act or omission of a third party, and the CITGO entities exercised due
care and took precautions against foreseeable acts of a third party.
14.

The CITGO entities are not liable under the EPPA because they were not

directly or indirectly responsible for discharge of any matter capable of impacting or
leading to the impact of waters in such a manner as to place them outside the minimum
standards of purity established by the Secretary of Health.
15.

Plaintiffs lack standing to bring a citizen suit under the EPPA.

16.

The Commonwealth lacks standing to bring a suit for alleged violations to

the Water Pollution Control Act (“WPCA”), P.R. Laws Ann. tit. 24, § 591 et seq.
17.

MTBE is not considered an “other” pollutant as defined in the WPCA, P.R.

Laws Ann. tit. 24, § 591(h).
18.

The CITGO entities are not liable under the WPCA because the

prohibitions, as well as the definitions contained in the WPCA, are unconstitutionally
vague.
19.

MTBE is not considered a “Pollutant” by the applicable Puerto Rico Water

Quality Standards Regulation.

55

20.

The CITGO entities are not liable because MTBE is not regulated or limited

under the applicable Puerto Rico Water Quality Standards Regulation.
21.

The CITGO entities are not liable under the applicable Puerto Rico Water

Quality Standards Regulation because releases, if any, were caused by an act or omission
of a third party and the CITGO entities exercised due care and took precautions against
foreseeable acts of a third party.
22.

MTBE is not considered a “Regulated Substance” as defined in the

Commonwealth’s applicable Underground Storage Tank Regulations or other applicable
regulations, and retroactive application of later-adopted regulations is unconstitutional.
23.

The CITGO entities are not liable under the applicable Underground

Storage Tank Regulations because MTBE was not regulated or limited under such
regulations, and retroactive application of later-adopted regulations is unconstitutional.
24.

The CITGO entities are not liable under the applicable Underground

Storage Tank Regulations because those regulations apply only to owners and operators of
underground storage tank systems.
25.

The Commonwealth has failed to state a claim for relief under the applicable

Underground Storage Tank Regulations.
26.

The CITGO entities are not liable for alleged violations of the Water Quality

Standards Regulation and Underground Storage Tank Regulations because releases, if any,
were caused by an act of God.
27.

The Commonwealth’s claim must be decreased by the proportion of harm

for which the Commonwealth is liable due to its concurrent imprudence.

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28.

The Commonwealth’s award, if any, must be reduced in proportion to the

damages for which third parties are liable due to their concurrent imprudence.
29.

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

applicable provisions of the pertinent statutes of limitations or prescription period,
including but not limited to Article 1868 of the Puerto Rico Civil Code, P.R. Laws Ann.
tit. 31, § 5298, and Article 1802, P.R. Laws Ann. tit. 31, § 5141.
30.

The Commonwealth’s request that the court order the CITGO entities to

remediate impacted water, if any, to pre-injury conditions is unrealistic to the extent that
the costs would make such remediation impracticable.
31.

The Commonwealth cannot recover for the risks inherent to unintended uses

of defendants’ products.
32.

The CITGO entities are not liable for any alleged public nuisance because

the Commonwealth, through its acts and omissions, impliedly consented to and had
knowledge of all activities and conditions alleged in the complaint.
33.

The Court should deny the Commonwealth’s request for a permanent

injunction, because it is a drastic measure, and the Court should first provide the CITGO
entities with a reasonable time to eliminate or lessen the nuisance, if any, caused by MTBE.
34.

The Commonwealth does not have standing to bring a public nuisance

action for the actions alleged in the complaint.
35.

No public nuisance exists because no act or omission by or on behalf of any

of the CITGO entities caused or will cause injury to health or offense to the senses, or is a
nuisance to the well being of any neighborhood, or to a large number of persons as required
by P.R. Laws Ann. tit. 32, § 2761.

57

36.

Plaintiffs’ public nuisance claim fails because they have not alleged, and

cannot show, any “special damages” under Puerto Rico law.
37.

No public nuisance exists because plaintiffs, or anyone on whose behalf

plaintiffs are allegedly suing, have not suffered a physical, health-related or economic
harm.
38.

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.
39.

Plaintiffs may not recover damages on their nuisance claim because they do

not own any injured property.
40.

Plaintiffs have no authority or standing to recover damages on behalf of

private individuals through parens patriae capacity or otherwise.
41.

The damages sought by the Commonwealth are punitive in nature, and

punitive or exemplary damages are not recoverable under Puerto Rico law.
42.

Gasoline containing MTBE did not fail to perform as safely as an ordinary

consumer would expect when used in an intended or reasonably foreseeable manner.
43.

Gasoline containing MTBE does not embody excessive preventable danger.

44.

There was no feasible, safer design for octane enhancers and oxygenates at

the time CITGO used MTBE in gasoline.
45.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of in pari

delicto.

58

46.

Plaintiffs’ claim for unjust enrichment or disgorgement of profits fails

because Puerto Rico authority does not permit the Plaintiffs to pursue either as a separate
cause of action or remedy. See Case Management Order #118, filed April 24, 2015.
47.

Plaintiffs’ unjust enrichment claim fails because the remedies they are

seeking are punitive, not compensatory, and bear no relation to any environmental injuries
alleged by Plaintiffs.
48.

Trespass is not an acknowledged cause of action under the Puerto Rico Civil

Code or as an equitable cause of action for acts or omissions occurring within the
jurisdiction of Puerto Rico.
49.

Plaintiffs’ trespass claim fails because they lack exclusive possession or

ownership of the land or groundwater allegedly trespassed.
50.

Plaintiffs have not established a trespass action because they have not

established a particular injury.
51.

Plaintiffs have not established the CITGO entities’ intent to trespass on land

they allegedly owned.
52.

Plaintiffs’ claims fail for lack of causation to the extent they cannot trace

any CITGO entity’s gasoline to a release or a release site.
53.

Plaintiffs’ claims fail because they cannot show a causal nexus between any

injury suffered and the manufacture, supply, or distribution of MTBE or gasoline with
MTBE by any CITGO entity.

59

54.

Plaintiffs’ claims fail to the extent the CITGO entities did not manufacture,

supply, or distribute MTBE or gasoline with MTBE; did not broker transactions between
sellers and buyers of MTBE or gasoline with MTBE; or did not own, operate or control
service stations dispensing gasoline with MTBE or gasoline storage systems in Puerto
Rico.
55.

The Plaintiffs’ claims fail to the extent that the CITGO entities sold their

products to knowledgeable and sophisticated purchasers, and thus they had no duty to warn
of risks about which the purchasers already were aware or should have been aware.
56.

The benefits of gasoline manufactured by the CITGO entities outweighed

any risks that may have accompanied the product.
57.

The Plaintiffs’ design defect claims fail because defendants could not have

produced gasoline in sufficient quantities without using MTBE.
58.

Plaintiffs cannot show that the design of gasoline with MTBE fell below the

appropriate standard of care.
59.

The Plaintiffs’ warnings claims fail because it was not more likely than not

that any failure to provide adequate warnings was a substantial factor in bringing about any
injuries.
60.

The CITGO entities are not liable to the extent they manufactured, supplied,

distributed, or imported shipments of gasoline containing concentrations of MTBE at or
below a de minimis threshold level.
61.

The CITGO entities are not liable to the extent there is no MTBE impact in

any aquifer that serves as a supply of drinking water.
WHEREFORE, CITGO Petroleum Corporation, CITGO Refining and Chemicals

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Company L.P., CITGO International Puerto Rico Company, and CITGO International, Inc.
request entry of judgment dismissing each of the complaints with prejudice, and awarding
them their costs and attorneys’ fees, and such other relief as the Court may deem just and
proper.
Dated: October 1, 2021

Respectfully submitted,
CITGO PETROLEUM CORPORATION, CITGO
REFINING AND CHEMICALS COMPANY L.P.,
CITGO INTERNATIONAL PUERTO RICO
COMPANY, AND CITGO INTERNATIONAL,
INC.

By:

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/s/ Pamela R. Hanebutt
Nathan P. Eimer ([e-mail])
(New York Bar No. 1976067)
Pamela R. Hanebutt
([e-mail])
Lisa S. Meyer ([e-mail])
EIMER STAHL LLP
224 S. Michigan Ave., Suite 1100
Chicago, IL 60604
Ph. 312-660-7600
Fax [phone]

CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on this 1st day of October, 2021,
a copy of the TENTH AMENDED MASTER ANSWER, AFFIRMATIVE AND SEPARATE
DEFENSES OF DEFENDANTS CITGO PETROLEUM CORPORATION, CITGO REFINING
AND CHEMICALS COMPANY, L.P., CITGO INTERNATIONAL PUERTO RICO COMPANY,
AND CITGO INTERNATIONAL, INC. was served upon all parties of record via LexisNexis
File and Serve.

/s/ Susan Razzano