This case is not published in a printed volume and its disposition appears in a table in the reporter.
Kenneth A. Davis, J.
The Court tried the instant matter from May 23 until September 6, 2007.
POST TRIAL MOTIONS
Pending before this Court are two motions made by the Plaintiff at the close of the testimony. Plaintiff moved to strike the testimony of defendant's expert, Thomas Maguire, as lacking the requisite support in the scientific community. The Court finds that Maguire's testimony was supported by the facts and had a foundation in the scientific community. Accordingly, Plaintiff's motion to strike his testimony is denied. Plaintiff also moved for a directed verdict at the close of the defendant's case. That motion is also denied.
Plaintiff admits that its Plant 1 wells have never been contaminated by MTBE or any other gasoline constituent. Accordingly, Plaintiff's only alleged "present injury" is its claim that MTBE beneath Defendants' present and former service stations poses an "imminent" threat to the Plant 1 wells. Because this alleged "imminent" threat is the present injury for each of Plaintiff's causes of action, the Court directed that trial of this matter be conducted in phases with the first phase to determine whether, as a matter of law and fact, Plaintiff could meet its threshold burden of demonstrating that it had suffered a present injury in the form of a real, imminent and certainly impending threat.
The instant action was commenced by the Plainview Water District ("Water District") against Exxon/Mobil Corporation in June of 2001 by the filing of a summons and complaint. The complaint was amended in February of 2003 to add the Shell defendants and Cumberland Farms. The action seeks damages stemming from the alleged imminent and immediate threat to plaintiff's supply wells from Methyl Tertiary Butyl Ether (MTBE), a chemical added to gasoline in order to permit the gasoline to burn more efficiently and therefore render it less detrimental to the environment.
MTBE is a man-made additive. It is soluble in water, has the ability to travel, is difficult to remediate, does not readily break down and is a regulated substance under state environmental laws. See, generally, Private Well Owners Pay Price as MTBE Contamination Exposes the Lack of Groundwater Protection in Federal and New York Law, 18 Pace Envtl. L. Rev. 135. MTBE has been banned in New York State since January of 2004.MTBE moves quickly through soils, dissolves in groundwater and flows with the same velocity as the groundwater. MTBE is persistent and does not tend to break down with other groundwater contaminants. MTBE's solubility in water as a pure solvent ranges between 48,000,000 to 51,000,000 parts per billion. MTBE's effective solubility as a component of gasoline at 15 percent by volume in the groundwater at 50 degrees Fahrenheit is 7,000,000 to 7,500,000 parts per billion ("ppb"). The New York legislature established a Maximum Contaminant Level ("MCL") for MTBE at 10 ppb. The generally recognized minimum detection level for MTBE is 0.5 ppb. As little as 2,000 micrograms of MTBE will contaminate approximately 52,000 gallons of water to the level of the MCL.
The Plainview Water District is a special improvement district located on the Nassau/Suffolk County border. The Water District supplies water to approximately 32,000 residents of Nassau County located in Plainview, Woodbury, Syosset and Old Bethpage. The Water District also provides water to numerous commercial establishments, educational facilities, religious institutions, medical facilities and fire departments. The Water District operates six pumping Plants to provide the necessary water to its customers. The instant action involves the Water District's Plant 1. Plant 1 is located at the intersection of Plainview Road/Manetto Hill Road and Old Country Road in Nassau County, New York.
Public water on Long Island is obtained through the aquifer system. The three aquifers used for drinking water on Long Island are the Glacial Aquifer, the Magothy Aquifer and the Lloyd aquifer. The Federal Government has designated the aquifer system in Plainview as a "sole source" since it is the only source for potable water for the residents and businesses. The Water District has no alternative but to use the Magothy Aquifer from which to draw its water supply. In the Plainview area, the water table starts in the Magothy Aquifer. The depth of the water table in the Plainview area is at approximately 70-75 feet below ground surface. The Magothy Aquifer continues to a depth approximately 625 feet in the Plainview area.
At Plant 1, the plaintiff operates two supply wells (hereinafter referred to as well 1-1 and 1-2). Plaintiff's supply wells are screened in the middle part of the aquifer. Plainview water supply wells at Plant 1 are considered sensitive receptors, as they provide potable water to the residents of the Water District.
The deep recharge area corresponds to the highest level of the water table. The deep recharge area of the Magothy Aquifer roughly corresponds to the 5.4 mile corridor along the Long Island Expressway, just north of the Water District Plant 1. According to the site data and United States Geological Survey ("USGS") potentiometric surface maps, Plainview is located within the Magothy Aquifer's deep recharge area.
The two pumps at Plant 1 are permitted to pump at 1200 gpm. Well 1-1 pumps water through a 50 foot screen located at a depth of 440 to 490 feet. Well 1-2 pumps water through a 50 foot screen located at a depth of 444 to 494 feet. Also located at Plant 1 are three sentinel wells which were installed by plaintiff as an early warning system to detect a potential threat of contamination. Monitoring Well ("MW") 1 is screened at 83-93 feet below grade, M W- 2 is screened at 173-183 feet below grade and M W- 3 is screened at 206-216 feet below grade. The Water District recently replaced the pump at Well 1-2. Prior to this replacement, the pumps operated below the 1200 gpm capacity. During the course of the trial, plaintiff was forced to shut down Well 1-2 due to a detection of 1,1,1-Trichloroethane above the MCL. According to the testimony, some of the Water District's wells will be out of service either due to unrelated contamination problems or overhaul.
The defendants are corporations that owned, operated, franchised and/or supplied gasoline to service stations located at the subject locations.
The Mobil Station was operated on property owned by defendant Federated Associates at 1101 Old Country Road from 1954 until August of 1997. This station was located 450 feet from Well 1-2 and 800 feet from Well 1-1. The station used Underground Storage Tanks (UST) which leaked significant amounts of gasoline during the course of defendant's operation of the station. Exxon/Mobil has admitted that it owned the USTs that were present at the location.
The Shell Station located at 1099 Old Country Road also operated since 1954. The company ceased operations at the site in August of 2005. This station is located about 400 feet from Well 1-2 and about 800 feet from Well 1-1.The subject property was owned by the Shell Oil Company until it was transferred to defendant Motiva Enterprises, LLC in 1998. This station used USTs to store gasoline. There were gasoline leaks at this location during the operation of the station and Shell has admitted that it owned the USTs that were present at the location.
The Gulf station located at 1098 Old Country Road was operated by defendant Cumberland Farms ("CFI") from 1986 until the present. The station is approximately 200 feet from Well 1-2. This station uses USTs to store its gasoline and there were spill incidents also at this location. Cumberland Farms has admitted that it owned the USTs.
The New York State Department of Environmental Conservation (NYSDEC) is the lead agency with regard to investigation and remediation of contaminated sites throughout the State of New York. The NYSDEC has the authority to order various remedial measures to be taken and to monitor those sites to ensure that the proper "clean-up" methods are being adhered to. The NYSDEC enforces the State's MCL for contaminants. Additionally, the Nassau County Department of Health and Nassau County Fire Marshal's Office have jurisdiction with regard to the groundwater and USTs respectively.
Plaintiff presented the deposition testimony of Angela Pimental. At the time of her deposition, Ms. Pimental was a senior project manager for Cumberland Farms. Ms. Pimental's testimony was followed by the deposition testimony of Michael Lamarre. Lamarre is a civil engineer and was a major projects manager employed by Exxon Mobil Corporation.
Plaintiff next presented the deposition testimony of Marjorie Hong. At the time of her deposition, Hong was a staff project manager/senior environmental engineer for Shell since 2002.
Plaintiff also presented the deposition testimony of Robert Rule. Rule was hired in 1998 as a senior project manager for Shell Oil. As a senior project manager, Rule would manage retail sites in the groundwater proactive program. Rule managed these sites until Marjorie Hong became the new project manager in 2001. In particular, Rule managed the groundwater assessment program for the Plainview area for about 2-5 months until Ms. Hong fully transitioned into her position.
Additionally, plaintiff presented the deposition testimony of Steven Trifiletti, employed by Exxon/Mobil Corporation as a retail construction manager for approximately four years in the late 1980's and early 1990's. In the mid-1990's he was employed as an environmental engineer, handling groundwater, soil, and air issues at various sites. In approximately 2001 he became project manager for a global remediation program that was established by Exxon/Mobil.
Plaintiff's first witness to testify at trial was Gary Brown. Brown is an environmental consultant and president of RT Environmental Services. Brown stated that environmental engineers are retained to investigate sites and to determine whether contaminants are in the ground and whether cleanup is needed. He received a BS degree from Syracuse in 1973 in Environmental Engineering. He completed additional course work in data management, hydrology, and well management. Brown is a certified professional engineer in 20 states including New York, New Jersey, and Pennsylvania.
Testifying next for the plaintiff was Robert Holzmacher . Holzmacher is a consulting civil and environmental engineer and is licensed in New York. He obtained a bachelor of science in civil engineering in 1982 with an emphasis on geotechnical engineering from Renssalaer Polytechnical Institute. Holzmacher completed one year of graduate work at Renssalaer for geotechnical engineering with an emphasis on computer modeling and geostatistics. Holzmacher received a fellowship to Cornell University in the civil engineering department with an emphasis on computer modeling, numerical modeling, and physical modeling for hydraulic processes and hydrogeology. During this fellowship, he worked as a research assistant where he did modeling of hydraulic processes, including ground and surface water. Holzmacher is a member of the American Society of Civil Engineers, the American Water Works Association, Long Island Water Conference and the National and New York State Societies of Professional Engineers.
Plaintiff called Robert Lewis as a witness. He is a hydrogeologist, a groundwater scientist with Worley Parsons Komex in Golden Colorado. He stated that a groundwater scientist is an individual who studies groundwater flow and processes in underground reservoirs. His educational background includes a master's degree in hydrogeology, from Colorado School of Mines and a bachelor's of science from University of Colorado.
Paul Granger, Superintendent of the Plainview Water District since 1996 also testified. His educational background includes a bachelor of science in civil engineering from Polytechnic University and an associate's in applied science in civil engineering technology from Nassau Community College. He is a licensed professional engineer in the state of New York, holding a 1 B water Plant operator certification in New York.
Robert Humann testified that he is currently employed at the firm of Holzmacher, McLendon and Murell, PC. also known as H2M. Humann holds the positions of vice president and chief water resources engineer at the company. He is a licensed professional engineer in the states of New York and New Jersey. H2M has been a consultant at the Plainview Water District for over 40 years. He has worked on various projects with the Plainview Water District over the past 20 years he has been at H2M. These projects included water resource, water treatment, water supply, and water storage.
Defendants offered the testimony of Thomas F. Maguire, an expert hydrogeologist. Maguire has approximately 21 years experience investigating and remediating gasoline and MTBE contamination at sites in at least 25 states, including on Long Island.
In 1979, contamination beneath the Mobil station was discovered during upgrades of the station's underground storage tanks. There were other spill incidents in 1991 and 1993. MTBE was first discovered in August of 1997 when the soil was tested during the closure of the Mobil station. As part of the remediation, approximately 1,018 tons of impacted soil were excavated and removed from the site. Additionally, Exxon/Mobil has implemented several remedial and corrective action plans to investigate and remediate the property. These plans were approved by the New York State Department of Environmental Conservation. The plans have included the installation of 31 separate monitoring wells or well clusters, a soil vapor extraction ("SVE") system to treat soil contamination, and an air sparge system to treat groundwater. ...