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

Filing 4641

ANSWER to Complaint with JURY DEMAND., CROSSCLAIM against All Defendants. Document filed by Getty Properties Corp...(Dean, Susan)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
___________________________________________
In Re: Methyl Tertiary Butyl Ether (“MTBE”)
Products Liability Litigation
___________________________________________

Master File No.: 1:00-1898
MDL No. 1358

This document relates to:

JURY TRIAL DEMANDED

Commonwealth of Pennsylvania, etc. v. Exxon Mobil
Corporation, et al., No. 1:14-cv-06228-VSB
____________________________________________
DEFENDANT GETTY PROPERTIES CORP.’S SECOND AMENDED MASTER
ANSWER, CROSSCLAIMS AND AFFIRMATIVE DEFENSES
Pursuant to the Master Answer Agreement among the parties, and Case Management
Order No. 6, Defendant Getty Properties Corp. (incorrectly designated as “Getty Properties
Corporation”) hereby files this Second Amended Master Answer to Plaintiff Commonwealth of
Pennsylvania’s Second Amended Complaint in MDL 1358, for which an Answer is presently
required, as follows:
I.

ANSWER REGARDING SELECT ALLEGATIONS
A.

Basic Defendant Information

Getty Properties Corp. (hereafter “Getty Properties”) is a Delaware Corporation with its
principal place of business at 292 Madison Ave., 9th Floor, New York, NY 10017-6318. Since
February 1, 1997, Getty Properties has been in the business of owning and leasing (but not
operating) gas station and convenience store properties, and up until approximately 2014,
petroleum distribution terminals. Prior to February 1, 1997, Getty Properties was known as Getty
Petroleum Corp. (known before July 1985 as Power Test Corp.) and was in the business of
owning and leasing gas station and convenience store properties, as well as petroleum
distribution terminals and purchasing in bulk, and distributing to dealer/lessees for retail sale,

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motor fuels, including gasoline. Getty Properties never refined crude oil, owned refineries, or
manufactured gasoline. Getty Properties never manufactured pure or neat MTBE and never
blended gasoline with MTBE.
Effective February 1, 1997, Getty Properties transferred all assets and liabilities
pertaining to its petroleum marketing and distribution business to Getty Petroleum Marketing,
Inc. (“GPMI”), a separate, unaffiliated public company. This transaction included the transfer to
GPMI of the petroleum marketing business and its operations and all business and financial
records pertaining to the petroleum marketing and distribution business formerly conducted by
Getty Properties. Accordingly, as of 1997, GPMI took ownership and control of all
records/information/data pertaining to the blending, terminal storage, distribution and sale of
gasoline and other fuels. Getty Properties never manufactured MTBE or refined gasoline
containing MTBE. Further, neither Getty Properties nor any member of its subsidiaries and
affiliates, has bought, sold, marketed or distributed gasoline since January 31, 1997.
By way of further response, Getty Properties specifically denies the allegations in
paragraph 74 of the Second Amended Complaint that “GPMI was a wholly-owned subsidiary of
Getty Petroleum Corporation [sic], also known as Getty Realty Corporation [sic].” Getty
Properties Corp. (incorrectly identified as “Getty Properties Corporation”) specifically denies
that Defendant Getty Petroleum Marketing, Inc. was a wholly-owned subsidiary of Getty
Properties Corp. from 1997 to 2000. It is further specifically denied that Getty Properties Corp.
is a successor in liability to Lukoil North America’s or Getty Petroleum Marketing, Inc. It is
further specifically denied that the term “Getty” should be used in conjunction with Defendant
GPMI and Defendant Getty Properties Corp., as these two entities are and always have been
distinct, separate business entities. Further, Plaintiff’s allegations as to Getty Realty Corp.

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(incorrectly named by Plaintiff as Getty Realty Corporation”) are without merit as Getty Realty
Corp. is not a named defendant in this action.
B.

Sale or Distribution of Gasoline with MTBE or TBA to States in Question

Getty Properties admits that it, at certain times, purchased and distributed gasoline
containing MTBE (for one or more time periods prior to January 31, 1997) to the
Commonwealth of Pennsylvania.
C.

Allegations Regarding Production of MTBE or TBA

Getty Properties has never manufactured MTBE or TBA at any time.
D.

Allegations Regarding Properties and Behavior of MTBE

Getty Properties denies knowledge or information sufficient to form a belief regarding
the properties and behavior of MTBE except Getty Properties admits, upon information and
belief, that MTBE is an aliphatic ether that does not occur naturally. Getty Properties admits that
there are various methods for the production of MTBE, and that one method of production is
from methanol and isobutylene.
Getty Properties states that, upon information and belief, solubility and mobility are
relative properties and that while MTBE and other ethers may be more soluble and mobile in
water than certain gasoline components, such as the BTEX compounds, they are less soluble and
mobile in water than other components sometimes blended into gasoline, such as ethanol. Getty
Properties further states that MTBE’s behavior in the environment -- and its behavior relative to
BTEX -- is dependent on a variety of factors, including the nature or method of its release, the
geological setting, and environmental and microbial factors.

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Getty Properties states that, upon information and belief, while under certain conditions
MTBE may biodegrade less readily than some other components of gasoline, MTBE has been
found to naturally attenuate and biodegrade in numerous ways.
E.

Allegations Regarding Properties and Behavior of TBA

Getty Properties denies knowledge or information sufficient to form a belief regarding
the properties and behavior of TBA except it admits, upon information and belief, that TBA is
the product of the hydrolysis of isobutylene and that TBA can be an intermediate product of
MTBE biodegradation.
Getty Properties states that, upon information and belief, solubility and mobility are
relative properties and that TBA is more soluble and mobile in water than certain gasoline
components, such as the BTEX compounds. Getty Properties further states that TBA’s behavior
in the environment -- and its behavior relative to BTEX -- is dependent on a variety of factors,
including the nature or method of its release, the geological setting, and environmental and
microbial factors.
F.

Allegations Regarding Taste and Odor

Getty Properties denies knowledge or information sufficient to form a belief regarding
allegations concerning taste and odor thresholds. Getty Properties admits, upon information and
belief, that individuals vary in their ability to detect the taste and odor of MTBE in water and that
responsible federal and state regulatory agencies, including the Commonwealth of Pennsylvania,
have considered and in fact adopted standards fully protective of MTBE taste and odor concerns.
G.

Allegations Regarding Health Effects of MTBE

Getty Properties denies knowledge or information sufficient to form a belief regarding
health effects of MTBE. MTBE has been studied publicly by scientists and government agencies

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for more than 20 years, and plaintiff’s allegations of dire human health concerns from MTBE are
unsubstantiated. MTBE has never been reliably linked to cancer, and there is no consensus in the
scientific field that it is carcinogenic. Getty Properties states that, upon information and belief,
responsible federal and state regulatory agencies, including the Commonwealth of Pennsylvania,
have considered and adopted standards to properly address any alleged health concerns related to
MTBE.
H.

Allegations Regarding Storage and Handling of Gasoline

Upon information and belief, Getty Properties admits that, from time to time, despite best
efforts, gasoline is sometimes released into the environment from underground storage tanks and
other sources. Upon information and belief, the oil and gas companies have spent hundreds of
millions of dollars or more over the past 40 or more years to eliminate or reduce leaks, and to
improve leak detection. Getty Properties states that it believes that most adults understand that
gasoline should be handled carefully and should not be spilled or discharged into the
environment.
I.

Allegations Regarding Production and Use of MTBE as a Cheap and
Profitable Gasoline Additive

Getty Properties never refined crude oil, owned refineries, or manufactured gasoline.
Getty Properties never manufactured pure or neat MTBE and never blended gasoline with
MTBE. Further, neither Getty Properties nor any member of its subsidiaries and affiliates, has
bought, sold, marketed or distributed gasoline since January 31, 1997. At all relevant times, prior
to January 31, 1997, ethanol was Getty Properties’ oxygenate of choice and it promoted the sale
of gasoline blended with ethanol. In fact, Getty Properties sued the States of New Jersey and
New York to obtain waivers of the RFG requirements in order sell gasoline containing ethanol
during the summer months in order avoid the purchase and sale of gasoline containing MTBE.

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J.

Allegations Regarding Participation In Industry Associations or
Lobbying Activities

Getty Properties denies plaintiff’s claim that it somehow hid information about the
chemical properties of ethers from plaintiff, or from the U.S. Government. Getty Properties
denies that it had any agreement with any other defendant to withhold from plaintiff or
government regulators information concerning MTBE.
Getty Properties admits, upon information and belief, that prior to 1990, Congress was
preparing to take action to address the nation's smog problem. Getty Properties admits that
federal government agencies were aware of MTBE's chemical characteristics in 1986 or earlier,
and that the EPA held public meetings about MTBE in 1986. Getty Properties admits that it, like
the federal government, was aware of the Garrett and Moreau paper in or about 1986. Getty
Properties was not a member of the American Petroleum Institute or Oxygen Fuels Association.
Getty Properties admits that, upon information and belief, a Testing Consent Order was entered
with EPA in or about 1988 by various major oil companies.
In response to plaintiff’s allegation that Congress adopted the Reformulated Gasoline
(RFG) Program as part of the 1990 Amendments to the Clean Air Act “[a]s a result of
tremendous lobbying efforts by the industry, including Defendants,” Getty Properties states that,
upon information and belief, many major oil companies in fact actively resisted the RFG
Programs requirement of oxygen content levels.
K.

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

Getty Properties denies plaintiff’s allegations regarding the 1990 Clean Air Act
Amendments (“CAAA”), but admits, upon information and belief, that while the CAAA did not
literally require use of MTBE as a gasoline additive, in practical terms the CAAA did compel

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MTBE’s use. Upon information and belief, EPA and Congress knew that the oxygen
requirements of the Act could not and would not be met without MTBE’s use.
Getty Properties denies knowledge or information regarding what U.S. refiners did
regarding the use of octane enhancers such as ethanol and MTBE in response to the requirements
of the CAAA. Upon information and belief, in 1990, with the amendments to the Clean Air Act,
the federal government mandated an increase in the use of oxygenates (up to 2.7% oxygen
content) to meet ambient carbon monoxide air requirements in winter gasoline in many cities
(beginning in 1992). Upon information and belief, in 1995, various oxygenates were extended by
regulation to year-round use for severe, non-attainment ozone areas in the United States. Upon
information and belief, reformulated gasolines used since that time have sometimes contained
between 10% and 15% MTBE, or up to 10% ethanol, to meet government mandates on
oxygenate content.
Getty Properties denies that ethanol was available in sufficient supply to meet the
demand for oxygenated gasoline in the RFG and oxyfuel regions when the Amendments
requiring 2% oxygen content in year-round gasoline in areas using RFG became effective.
Getty Properties further states that several government agencies, including the
Commonwealth of Pennsylvania, have concluded that MTBE has contributed substantially to
reducing air pollution.
L.

Allegations Regarding MTBE-Related Actions Taken By State or Federal
Governmental Bodies

Upon information and belief, Getty Properties admits that in 2001, EPA provided
advance notice of its intent to initiate a rulemaking pursuant to TSCA to eliminate or limit the
use of MTBE as a fuel additive. Getty Properties admits that certain state legislatures or
regulatory bodies passed laws or adopted regulations to limit or eliminate the use of MTBE in

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gasoline, including the Commonwealth of Pennsylvania. The details of such laws are a matter of
public record and Getty Properties respectfully refers thereto.
M.

Allegations Regarding Plaintiff’s Claimed Inability To Identify Relevant
Sources of Gasoline Leaks Or Spills Affecting a Given Site

Getty Properties denies plaintiff’s allegations that plaintiff is unable to identify relevant
sources of gasoline leaks or spills. Gasoline leaks or spills, whether containing MTBE or not, are
frequently traceable to a specific source, limited to the immediate geographic area of the source,
and remediable. In the vast majority of leak or spill incidents, a responsible party can be and is
identified. Getty Properties denies that gasoline can never be traced from a contamination site to
its terminal or refinery source.
N.

Allegations Purporting To Quote or Summarize Documents

Numerous paragraphs in the Second Amended Complaint purport to quote from or
summarize documents, statutes and regulations. These written materials speak for themselves.
The documents, statutes and regulations referenced by plaintiff, which are not attached to the
Second Amended Complaint, are the best evidence of their content and Getty Properties
therefore denies plaintiff’s attempts to summarize or characterize the contents of these written
materials.
O.

Allegations Regarding Defendants Unrelated To Getty Properties Corp.

Getty Properties is without knowledge or information sufficient to form a belief as to the
truth of the matters averred in the Second Amended Complaint regarding the specific statements,
acts or omissions of defendants unrelated to Getty Properties.
P.

Response to Particular Claims and Counts

Counts III and V of the Second Amended Complaint were dismissed by Court Opinion
and Orders dated July 2, 2015 and August 2, 2021 and therefore no response is required as to

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these now dismissed claims. To the extent plaintiff avers that either or both of these causes of
action are alive, Getty Properties denies all allegations contained in Counts III and V.
Counts VI and VII of the Second Amended Complaint were dismissed by Court Opinion
and Order dated August 2, 2021; Counts VI and VII are/were directed to defendants other than
Getty Properties and therefore to the extent any or all claims within these Counts are still alive
no response is required by Getty Properties Corp.
Defendant Getty Properties Corp. was dismissed as an “Insurance Defendant” as defined
in paragraph 123 of the Second Amended Complaint and Counts VIII and IX as to Getty
Properties were dismissed pursuant to a Notice of Voluntary Dismissal filed by plaintiff and
approved by the Court on January 8, 2016. Therefore no response to Counts VIII and IX is
required.
As to the remaining causes of action asserted in Counts I, II and IV, purporting to state
particular common law or statutory claims, Getty Properties incorporates each paragraph of this
Second Amended Master Answer as if fully restated therein and denies it is liable for any claims
asserted in the Second Amended Complaint.
Q.

Allegations Regarding Claimed Injuries or Damages

Getty Properties is without knowledge or information sufficient to form a belief as to the
truth of the matters averred in the Second Amended Complaint regarding specific incidents of
alleged contamination. Getty Properties believes publicly available documents will demonstrate
that many or most of the wells at issue have not been impacted by MTBE, or have been impacted
only at levels well below state action standards for MTBE.
With regard to alleged damages, the allegations require no further answer. To the extent
that further answer is deemed necessary, Getty Properties admits that plaintiff seeks the relief set

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forth in the Second Amended Complaint, but denies that plaintiff is entitled to punitive damages
or any other damages or relief.
II.

CROSSCLAIMS FOR COMMON LAW CONTRIBUTION AND/OR
INDEMNITY PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 13(g)
DIRECTED TO ALL CO-DEFENDANTS
1.

Getty Properties incorporates by reference the preceding paragraphs of this

Second Amended Master Answer as though the same were fully set forth at length herein.
2.

The losses and damages as alleged in Plaintiff’s Second Amended Complaint,

which same are specifically denied, were not caused by the conduct of Getty Properties and
if Plaintiff suffered any alleged losses and/or damages as alleged, said losses and/or
damages were caused by the negligence, carelessness and/or liability producing conduct of
Co-Defendants, who are each solely liable to Plaintiff or jointly and/or severally liable to
Plaintiff or liable over to Getty Properties.
3.

If Plaintiff is entitled to recovery as set forth in Plaintiff’s Second Amended

Complaint, which losses and/or damages are specifically denied, Co-Defendants in this
action are each solely liable for Plaintiff’s alleged damages, or jointly and severally liable to
Plaintiff for any alleged losses and/or damages, for which Getty Properties may be found
liable in the form of contribution or indemnity, with same being denied.
4.

If Plaintiff recovers any verdict against Getty Properties, and/or should Getty

Properties be held responsible for contribution and/or indemnity, with same being denied,
Getty Properties demands judgment in the amount of the verdict or full indemnity and
contribution according to the law against Co-Defendants.
WHEREFORE, Defendant Getty Properties Corp. respectfully demands that judgment
be entered in its favor and that Co-Defendants each be found solely liable to Plaintiff, jointly

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and severally liable with Getty Properties Corp. and/or liable over to Getty Properties Corp.
for indemnification, defense and/or contribution for the causes of action as set forth in
Plaintiff’s Second Amended Complaint. Getty Properties Corp. hereby demands judgment in
its favor and against Plaintiff and all other Defendants on all claims and crossclaims.
III.

RESERVATION OF RIGHT TO AMEND
Getty Properties reserves the right to amend this Second Amended Master Answer.

IV.

AFFIRMATIVE DEFENSES
For its separate defenses to the Second Amended Complaint, Getty Properties states as

follows:
1.

Plaintiff’s claims are barred in whole or in part by the doctrine of federal

preemption.
2.

At all relevant times, Getty Properties’ actions and the products it sold, supplied

or distributed, complied with and were undertaken pursuant to applicable federal, state, and local
laws, rules, regulations and specifications.
3.

Plaintiff’s claims are barred in whole or in part because federal, state and/or local

authorities and agencies have mandated, directed, approved and/or ratified the alleged actions or
omissions of Getty Properties.
4.

All acts and conduct of Getty Properties, as alleged in the Second Amended

Complaint, conformed to and were pursuant to statutes, government regulations and industry
standards, and were based upon the state of knowledge existing at all material times alleged in
the Second Amended Complaint.
5.

The relief sought by plaintiff is, in whole or in part, within the particular expertise

of and is being addressed by federal and state governments, and their relevant agencies, and thus

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this Court should decline to exercise jurisdiction over this matter pursuant to the doctrine of
primary jurisdiction.
6.

Plaintiff has failed to exhaust its administrative remedies.

7.

Plaintiff has a plain, common, adequate and speedy remedy at law. The equitable

causes of action alleged in the Second Amended Complaint are thus barred.
8.

Plaintiff is barred from seeking strict liability for design defect as any attempt to

reexamine the mandatory cost-benefit analysis delegated to and performed by the EPA pursuant
to its obligations under the Clean Air Act (CAA) would be impermissible given that Congress,
through Section 211 of the CAA, authorized the EPA, and not the courts, to perform the costbenefit analysis.
9.

If it is determined that plaintiff or anyone on whose behalf plaintiff is allegedly

suing, was injured, as set forth in the Second Amended Complaint, which Getty Properties
denies, Getty Properties alleges that such hardship is outweighed by the convenience and public
service rendered by Getty Properties’ actions.
10.

Each purported cause of action asserted in the Second Amended Complaint is

barred under 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, to specifically permit the use of MTBE as a gasoline oxygenate, and in
view of known limitations as to the availability of alternative gasoline oxygenates, in effect,
mandated the use of MTBE as a gasoline oxygenate.

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11.

To the extent that plaintiff has received or may receive the requested relief from a

governmental agency, Getty Properties asserts its entitlement to an appropriate setoff or
reduction of any judgment against it.
12.

The appropriate forum for plaintiff’s claims is an administrative agency, and

therefore all proceedings before this Court should be stayed pending administrative resolution of
the issues.
13.

The claims set forth in the Second Amended Complaint fail, in whole or in part,

based on the doctrine of election of remedies.
14.

Each purported cause of action asserted in the Second Amended Complaint as

applied to Getty Properties is barred because the relief sought therein would pose unreasonable
barriers and substantial burdens on interstate and/or international commerce in violation of the
Commerce Clause of the United States Constitution and/or the North American Free Trade
Agreement.
15.

The Second Amended Complaint fails to state a claim upon which relief may be

granted and should, therefore, be dismissed pursuant Fed. R. Civ. P. 12(b)(6).
16.

Because plaintiff has not suffered any cognizable harm and has not incurred any

present damages, there is no current case or controversy and thus, plaintiff’s claims are not ripe
for adjudication.
17.

Plaintiff suffered no losses or injuries that were proximately caused by Getty

Properties.
18.

Getty Properties’ conduct was not the cause in fact of any injuries alleged by

plaintiff.

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19.

Plaintiff has failed to state a cause of action for nuisance because it has neither

alleged nor suffered any particularized injury.
20.

The Second Amended Complaint fails to state a claim in strict product liability for

defective design and/or failure to warn as to Getty Properties for which relief may be granted.
21.

Plaintiff is not entitled to recover attorneys’ fees as an element of relief.

22.

Plaintiff has failed to properly present any claim for attorneys’ fees and may not

recover such as a damages.
23.

The Second Amended Complaint fails to state a claim in negligence against Getty

Properties for which relief may be granted.
24.

Because plaintiff has sued multiple parties, under multiple causes of action, with

divisible damages, the claim for attorneys’ fees must be proportioned between same.
25.

The claims set forth in the Second Amended Complaint are barred, in whole or in

part, by the mootness doctrine.
26.

The Second Amended Complaint and each purported cause of action are barred,

in whole or in part, by the defense of laches. Plaintiff’s unreasonable and inexcusable delay in
filing this action caused substantial prejudice to Getty Properties.
27.

The Second Amended Complaint and each purported cause of action contained

therein are barred by the applicable provisions of the pertinent statutes of limitations.
28.

The Second Amended Complaint and each purported cause of action contained

therein are barred by the applicable provisions of the pertinent statutes of repose.
29.

Plaintiff is estopped by its own conduct from asserting any of the purported

claims alleged against Getty Properties in the Second Amended Complaint.

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30.

Plaintiff has not investigated the cause of the alleged harm or attempted to

identify the actual responsible party or parties.
31.

Plaintiff cannot establish the required predicates for each of its theories of

collective liability, and therefore their defendant-identification burden remains. In the event that
the defendant-identification burden were shifted in the future, Getty Properties denies that it
contributed to the contamination at issue.
32.

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

33.

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

asserts against Getty Properties.
34.

Getty Properties is entitled to total or partial indemnity from those individuals or

entities who are responsible for plaintiff’s injuries or damages, if any, in an amount in direct
proportion to their relative culpability.
35.

Plaintiff lacks the capacity to sue.

36.

Plaintiff lacks standing to sue.

37.

Plaintiff’s claims are barred because Getty Properties’ conduct caused no physical

impact to plaintiff’s property.
38.

There is a defect or misjoinder of parties, in that plaintiff has failed to join

indispensable or necessary parties.
39.

Plaintiff has failed to name the party or parties responsible for the alleged harm.

40.

The claims set forth in the Second Amended Complaint fail, in whole or in part,

because of the failure to identify which defendant, if any, proximately caused the alleged harm.
41.

Plaintiff’s claimed injuries were caused in whole or in part by others, whose

actions were not controlled by or related to Getty Properties. Such actions are the superseding,

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supervening and/or intervening cause of plaintiff’s injuries and therefore plaintiff may not
recover from Getty Properties as a matter of law.
42.

Plaintiff’s claims must be dismissed because it has failed to identify the particular

defendant that is responsible for the harms alleged by plaintiff.
43.

At no time did Getty Properties exercise control over the persons or entities

responsible for actual or threatened releases of MTBE, if any, alleged in the Second Amended
Complaint. At all times, Getty Properties acted with due care with respect to any petroleum
products used and took reasonable precautions against foreseeable acts or omissions of any such
third parties and any foreseeable consequences.
44.

Getty Properties did not own, control or release any of the petroleum products that

are alleged to have caused or threatened contamination of plaintiff’s land, waters and/or wells.
45.

Any gasoline product sold, supplied and/or distributed for resale by Getty

Properties was properly designed, formulated, prepared and otherwise not defective in any
respect.
46.

To the extent required, Getty Properties provided proper warnings, information,

and instructions relating to gasoline products it sold, supplied or distributed pursuant to generally
recognized and prevailing standards in existence at the time.
47.

Getty Properties never manufactured or sold MTBE.

48.

Getty Properties never refined or blended gasoline with MTBE.

49.

Plaintiff has failed to allege that Getty Properties’ alleged failure to provide an

adequate warning proximately caused its injuries.
50.

Any gasoline product containing MTBE sold, supplied or distributed for resale by

Getty Properties was not unreasonably dangerous when it was sold, supplied or distributed.

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51.

Plaintiff’s claims against Getty Properties are barred by the bulk supplier doctrine.

52

Getty Properties sold, supplied and/or distributed gasoline products to

knowledgeable and sophisticated purchasers, and any injury alleged by plaintiff was caused by
such purchasers’ failure to observe known standards of care.
53.

Any injury, damage or loss sustained by the plaintiff was proximately caused by

and/or contributed to by its own negligence, carelessness, and/or omissions.
54.

Plaintiff’s claims are barred pursuant to the learned intermediary doctrine. If any

damages or injuries alleged in the Second Amended Complaint occurred because of leaks in the
gasoline storage tanks and associated piping, Getty Properties is not liable for those damages
and/or injuries because the gasoline storage tanks and associated piping, when manufactured and
distributed, conformed to the then current state of scientific and industrial knowledge, and the
tanks and associated piping were used for their intended purpose.
56.

Plaintiff’s public nuisance claims should be dismissed because there were no acts

or omissions by or on behalf of Getty Properties constituting an intentional, unreasonable
interference with the plaintiff’s interest in the use and enjoyment of its property.
57.

Plaintiff’s public nuisance claims must be dismissed because plaintiff has failed to

allege “special damages,” an absolute prerequisite to the assertion of a public nuisance claim.
58.

Getty Properties alleges that it owed no duty of care to plaintiff in connection with

the matters alleged in the Second Amended Complaint.
59.

The Second Amended Complaint fails to plead the elements of negligence claims

with sufficient clarity, specificity, and particularity.
60.

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

by the First Amendment to the United States Constitution.

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61.

The Second Amended Complaint and each cause of action contained therein are

barred based on Getty Properties valid exercise of the right of petition to the federal government,
state government(s), and/or their respective deliberative bodies and agencies.
62.

Plaintiff’s claims are barred, in whole or in part, based on plaintiff’s actual or

constructive notice of reported spills or releases, if any, from publicly available records.
63.

There is no legal relationship upon which any duty could possibly be owed by

Getty Properties to plaintiff, and therefore, plaintiff’s causes of action fail as a matter of law.
64.

The injuries and damages, if any, alleged by plaintiff are caused in whole or in

part to the presence of compounds other than MTBE (e.g., the BTEX compounds). Under
plaintiff’s own legal theories, Getty Properties is not liable for damages caused by compounds
other than MTBE. In the event liability is assessed against Getty Properties, such liability must
be reduced where, and to the extent that, other compounds - about which plaintiff does not
complain - contributed to the alleged injury.
65.

Getty Properties is not liable for contamination where chemical compounds other

than MTBE exceed state action levels or standards, requiring cleanup or regardless of the
presence of MTBE (particularly, but not exclusively, where MTBE is present below state action
levels or standards).
66.

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

subject matter of this action was not reasonably foreseeable.
67.

If it is determined that plaintiff or anyone on whose behalf plaintiff is allegedly

suing, was injured, as set forth in the Second Amended Complaint, which Getty Properties
denies, Getty Properties alleges that any award of damages shall be reduced in proportion to the
percentage of fault attributable to the plaintiff.

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68.

If it is determined that plaintiff or anyone on whose behalf plaintiff is allegedly

suing, was injured, as set forth in the Second Amended Complaint, which Getty Properties
denies, Getty Properties alleges that any award of damages shall be reduced in proportion to the
percentage of fault attributable to third parties (including but not limited to persons or entities
responsible for gasoline leaks or spills).
69.

The injuries alleged in the Second Amended Complaint, if any, may be

reasonably apportioned among the defendants, as each defendants’ alleged acts and omissions is
divisible and distinct.
70.

Plaintiff has unreasonably failed to mitigate its damages, if any.

71.

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

Getty Properties asserts its entitlement to an appropriate credit or reduction of any judgment(s)
against it.
72.

Plaintiff’s claims for punitive damages violate the provisions of the U.S.

Constitution, including but not limited to those provisions requiring due process of law and
prohibiting excessive fines.
73.

Plaintiff’s Second Amended Complaint fails to state a claim for punitive damages.

74.

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

and collateral estoppel.
75.

The Second Amended Complaint and each purported cause of action are barred

by the applicable provisions of the pertinent statutes of limitations, including but not limited to,
42 Pa. Cons. Stat. Ann. §5524.
76.

Getty Properties’ conduct did not meet the minimum requirements of culpability

with respect to each material element of the alleged offenses of public nuisance, and negligence

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in order to be found liable according to the applicable provision of 18 Pa. Cons. Stat. Ann. §302,
and, therefore, plaintiff’s claims on these counts should be dismissed.
77.

Plaintiff’s claims for public nuisance are barred because at all relevant times,

neither Getty Properties nor the gasoline products it sold, supplied and/or distributed violated any
orders or regulations adopted by the Pennsylvania Department of Environmental Resources. 35
Pa. Cons. Stat. Ann. § 691.503.
78.

Getty Properties is relieved of liability as to some or all of plaintiff’s claims

asserted in the Second Amended Complaint pursuant to the provisions set forth in
Pennsylvania’s Land Recycling and Environmental Remediation Standards Act, 35 P.S.
§§6026.101, et seq. (Act 2) and all related regulations.
79.

Any and all claims asserted by Plaintiff regarding the sale, supply or distribution

of gasoline product after 1997 fail as to Getty Properties as Getty Properties did not sell, supply
or distribute gasoline product after January 31, 1997.
80.

Plaintiff lacks standing and/or the capacity to assert the causes of action and relief

sought as set forth in the Second Amended Complaint.
81.

Plaintiff does not have standing to bring one or more of the purported causes of

action, including in its parens patriae and/or trustee capacity.
82.

One or more of Plaintiff’s claims is not ripe, including its claim for future

damages.
83.

Getty Properties denies that MTBE and gasoline containing MTBE constitute

defective products and/or that MTBE and gasoline containing MTBE were negligently stored,
sold, supplied, distributed or handled by it. Even if Plaintiff could prove that MTBE and gasoline
containing MTBE are defective products, or that MTBE and gasoline containing MTBE were

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negligently stored, sold, supplied, distributed or handled by it, Plaintiff cannot recover damages
against Getty Properties because Plaintiff is/was contributorily negligent.
84.

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

in Section 402A of the Restatement (Second) of Torts and its comments, including to the extent
that Plaintiff was not a user or consumer of the product at issue, and that Getty Properties did not
manufacture gasoline containing MTBE or sell any product that was unreasonably dangerous
beyond the contemplation of the ordinary consumer.
85.

Any storage of gasoline containing MTBE in the State was not abnormally

dangerous and was an appropriate activity for the place where it was stored.
86.

Plaintiff’s claim for design defect fails because Getty Properties did not

manufacture MTBE, did not refine gasoline and did not blend or add MTBE to gasoline.
87.

Plaintiff’s claim for design defect fails because gasoline containing MTBE

worked as intended.
88.

The injuries and damages, if any, alleged by Plaintiff are caused in whole or in

part by the presence of compounds other than MTBE. Under Plaintiff’s own legal theories,
Getty Properties is not liable for damages caused by compounds other than MTBE. In the event
liability is assessed against Getty Properties, such liability must be reduced where, and to the
extent that, other compounds - about which Plaintiff does not complain - contributed to the
alleged injury.
89.

Getty Properties is not liable for contamination where chemical compounds other

than MTBE exceed state action levels or standards and require cleanup, regardless of the
presence of MTBE.

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90.

Plaintiff’s claims are barred, in whole or in part, to the extent that Plaintiff seeks

to impose liability and/or penalties on Getty Properties retroactively, or for conduct that was not
actionable at the time it occurred.
91.

Getty Properties is entitled to total or partial indemnity from those individuals or

entities who are responsible for Plaintiff’s injuries or damages, if any, in an amount in direct
proportion to their relative culpability.
92.

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

93.

Getty Properties affirmatively claims, by way of recoupment or offset, the

monetary or economic benefit that Getty Properties alleges Plaintiff obtained by the use of RFG
gasoline, including but not limited to the air quality benefits obtained by Plaintiff and its
residents.
94.

The Constitution of the Commonwealth of Pennsylvania does not support

Plaintiff’s allegations or causes of action asserted in the Second Amended Complaint.
95.

Plaintiff does not have authority to sue for civil penalties or civil recovery under

Pennsylvania’s environmental laws and regulations.
96.

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

because Plaintiff does not own or have a trusteeship interest in the property and/or natural
resources allegedly impacted.
97.

Plaintiff’s statutory claims fail to the extent premised on manufacture, supply or

distribution of gasoline containing MTBE, because the statutory scheme is intended to apply to
underground storage tank facility owners or operators, or others who directly caused a discharge.
98.

Getty Properties cannot be liable for MTBE detected in soil and/or groundwater

below applicable federal and/or state regulatory levels.

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99.

Plaintiff is not entitled to punitive or exemplary damages on any cause of action

or ground alleged in the Second Amended Complaint. Any award of punitive or exemplary
damages would violate the due process and/or equal protection clauses of the Commonwealth of
Pennsylvania’s and United States Constitutions.
100.

The Second Amended Complaint is barred, in whole or in part, by the doctrine of

equitable estoppel.
101.

Getty Properties incorporates by reference any appropriate affirmative defense,

whether general or specific, asserted by other defendants in this MTBE MDL 1358.
102.

As allowed by the Federal Rules of Civil Procedure, and specifically Rule 15,

Getty Properties reserves the right to move for leave to further amend or supplement this Second
Amended Master Answer and Affirmative Defenses to assert any further defense that may
become evident during the course of discovery or other proceedings in this case.
103.

The pleading of the affirmative defenses asserted above shall not be construed as

an undertaking by Getty Properties of any burden that would otherwise be the responsibility of
plaintiff.
WHEREFORE, Defendant Getty Properties Corp. denies that Plaintiff is entitled to any
such relief as set forth in Plaintiff’s Second Amended Complaint. Defendant Getty Properties
Corp. respectfully requests that the Court enter judgment in its favor and that all of Plaintiff’s
claims and causes of action asserted against Getty Properties Corp. be dismissed with prejudice
and grant such other and further relief as the Court deems just and proper.

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RAWLE & HENDERSON LLP

By: ________________________________
John C. McMeekin II, Esquire
Susan M. Dean, Esquire
The Widener Building
One South Penn Square
Philadelphia, PA 19107
Phone: [phone] (Phone)
Fax: [phone] (Fax)
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for Defendants
Getty Properties Corp.

Dated: October 1, 2021

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24

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
___________________________________________
In Re: Methyl Tertiary Butyl Ether (“MTBE”)
Products Liability Litigation
___________________________________________

Master File No.: 1:00-1898
MDL No. 1358

This document relates to:

JURY TRIAL DEMANDED

Commonwealth of Pennsylvania, etc. v. Exxon Mobil
Corporation, et al., No. 1:14-cv-06228-VSB
____________________________________________

I, Susan M. Dean, hereby certify that on October 1, 2021, a true and correct copy of
Defendant Getty Properties Corp.’s Second Amended Master Answer, Cross Claims and
Affirmative Defenses, in the above captioned proceeding, we served upon all counsel of record
via LexisNexis File & Serve.
RAWLE & HENDERSON LLP

By: ________________________________
Susan M. Dean, Esquire
The Widener Building
One South Penn Square
Philadelphia, PA 19107
Phone: [phone] (Phone)
Fax: [phone] (Fax)
E-mail: [e-mail]

Attorneys for Defendant
Getty Properties Corp.
Dated: October 1, 2021

15248873-1