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In re Methyl Tertiary Butyl Ether (&Quot;Mtbe&Quot;) Products Liability Litigation

United States District Court, S.D. New York

February 10, 2015

IN RE: METHYL TERTIARY BUTYL ETHER (

Robert J. Gordon, Esq., Robin L. Greenwald, Esq., William A. Walsh, Esq., Weitz & Luxenberg, P.C., New York, NY, Liaison Counsel for Plaintiffs.

Victor L. Cardenas, Jr., Esq., William J. Jackson, Esq., John D.S. Gilmour, Esq., Jackson Gilmour & Dobbs, P.C., Houston, TX, Counsel for the Commonwealth.

Peter J. Sacripanti, Esq., James A. Pardo, Esq., Lisa A. Gerson, Esq., McDermott Will & Emery LLP, New York, NY, Liaison Counsel for Defendants.

Juan A. Marques-Diaz, Esq., Jorge J. Garcia-Diaz, Esq., Alejandro J. Cepeda-Diaz, Esq., McConnell Valdes LLC, San Juan, PR, Counsel for Sol.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

This is a consolidated multi-district litigation ("MDL") relating to contamination - actual or threatened - of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the Commonwealth of Puerto Rico ("the Commonwealth") alleges that defendants' use and handling of MTBE has contaminated, or threatened to contaminate groundwater within its jurisdiction. Familiarity with the underlying facts is presumed for the purposes of this Order.

Currently before the court is a motion for partial summary judgment brought by defendant Sol Puerto Rico Limited ("Sol"), formerly known as The Shell Company (Puerto Rico) Limited, in connection with certain remedies sought by the Commonwealth for injunctive relief and costs related to the investigation and remediation of MTBE at Trial Site No. 3.[1] For the following reasons, the motion is DENIED.

II. BACKGROUND[2]

Before the Commonwealth filed this action, Sol, in preparation for a sale of its shares, had begun investigating possible MTBE presence at Trial Site No. 3.[3] Specifically, in 2006, Sol designed an Environmental Assessment Program ("EAP") to conduct environmental studies at various service stations it owned.[4] Trial Site No. 3 was one of the sites covered by the EAP.[5] On April 16, 2006, Puerto Rico's Environmental Quality Board ("EQB") approved Sol's EAP.[6]

The EAP was to be carried out in three phases. First, Sol would "more closely survey sites that presented high concentrations of hydrocarbons, and other gasoline constituents, including MTBE, to determine the extent of such concentrations, and report its findings to the EQB."[7] Second, Sol would "prepare and submit to the EQB a corrective action plan to perform remediation activities at such sites."[8] Third, Sol would begin remediation for any area found to be affected once the EQB approved the corrective action plan.[9]

To date, Sol has largely complied with the EAP, performing work pre-dating and post-dating the instant suit in connection with testing, sampling, and evaluating Trial Site No. 3.[10] However, much like this MDL, the EAP has been a slow and contested process.

Upon approving the EAP in April 2006, EQB requested that Sol submit generic sampling plans before conducting further sampling.[11] It took Sol more than two years to submit quality assurance plans for the generic site assessment work, which plans EQB approved in December 2008.[12]

Nearly two years later, Sol submitted to EQB an Environmental Assessment Work Plan for soil and groundwater investigations to be conducted specifically at Trial Site No. 3.[13] Another two years passed before Sol, on August 30, 2012, submitted to EQB the results of these investigations.[14] More than a year later, in November 2013, Sol submitted yet another Environmental Site Assessment Work Plan for ...


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