Marrero Hernandez v. Esso Standard Oil Co., No. 03-1485 (GAG).

Citation597 F.Supp.2d 272
Decision Date10 February 2009
Docket NumberNo. 03-1485 (GAG).
PartiesCarmen Elizabeth MARRERO HERNANDEZ, et al., Plaintiffs, v. ESSO STANDARD OIL CO. (PUERTO RICO), et al., Defendants.
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Jose A. Hernandez-Mayoral, Hernandez Mayoral Law Office, Manuel San-Juan-De Martino, Manuel San Juan Law Office, Juan H. Saavedra-Castro, Juan H. Saavedra Castro Law Office, Orlando Cabrera-Rodriguez, Rafael E. Ganda-Rolon, San Juan, PR, for Plaintiffs.

John F. Nevares, John F. Nevares & Assoc. PSC, San Juan, PR, PHV Lawrence

P. Riff, PVH Jason Levin, Steptoe & Johnson LLP CA, Los Angeles, CA, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

Plaintiffs, past and present property owners and residents of La Vega Ward, Barranquitas, Puerto Rico, bring this action against Esso Standard Oil Co. (Puerto Rico) ("Esso") and others alleging violations of state and federal environmental laws. Esso has moved for summary judgment as to plaintiffs' federal claims under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. ("CWA"), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq ("CERCLA"). For the reasons stated herein, the court DENIES Esso's motion for summary judgment (Docket No. 905).

I. Standard of Review

Summary Judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue is genuine if `it may reasonably be resolved in favor of either party' at trial, and material if it `possess[es] the capacity to sway the outcome of the litigation under the applicable law'." Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original) (citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S.Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).

II. Relevant Material Facts and Procedural Background

Consistent with the summary judgment standard, the court states the facts in the light most favorable to plaintiffs. See Iverson, 452 F.3d at 98. Additionally, in accordance with Local Rule 56, the court credits only facts properly supported by accurate record citations. See D.P.R. L.Civ.R 56(e). The court has disregarded all argument, conclusory allegations, speculation, and improbable inferences disguised as facts. See Forestier Fradera, 440 F.3d at 21; Medina-Muñoz v. R.J. Reynolds Tabacco Co., 896 F.2d 5, 8 (1st Cir.1990).

Esso owned and operated a service station in La Vega for over fifty years, from the facility's construction in the 1940s until it ceased its operations in 1998. During the station's operation, Esso installed four underground storage tanks ("USTs") to store and dispense gasoline and diesel fuel. Esso owned these USTs together with the piping thereto and supplied gasoline, diesel, and other products to the operators of the station. For sometime before December 1991 the USTs had been releasing their contents into the facility's soil and groundwater. Other releases occurred over time associated with the operation of the service station. The substances released included gasoline with BTEX components, diesel fuel, batteries, oil filters, and used oil. The releases to the environment caused contamination of the groundwater and soils within the footprint of the former station site and some of the contamination has migrated beyond that footprint.

Co-defendant Carlos Rodríguez ("Rodríguez"), lessee of Esso's USTs and operator of the station up to the time it ceased operations, complained on several occassions of product loss from the station. In 1991, Esso replaced the three USTs at the station, which, when removed, revealed signs of corrosion and perforations. Field screening results indicated the presence of aromatic hydrocarbons in the subsoil and in the excavated soil from the tank pits. According to the Puerto Rico Environmental Quality Board ("EQB") in 1989 the station was placed on the Leaking Underground Storage Tanks list ("LUST list"). Esso installed a monitoring well for the groundwater below the station to detect discharges from its USTs. The EQB reports that in April 1990 a broken diesel line was reported at the station and a month later the monitoring wells evinced the presence of hydrocarbons. Additional monitoring wells were installed at the station, which over the course of eighteen months, from May 1990 to November 1991, showed the presence of free petroleum products in the subsoil and groundwater. The gasoline had seeped through the soil, formed a plume in the groundwater and spread. According to the EQB, Esso never preformed the necessary tests to verify the integrity of the USTs, it never quantified the amount of product spilled, nor did it determine the vertical and horizontal extensions of the contamination. When in 1994 the EQB required Esso to submit technical reports as part of the Underground Storage Tank Control Program ("USTCP") describing the station's situation subsequent to the 1990 leak, Esso personnel complied, but indicating that only 1.6 gallons of free product had been recovered in 1991. After the USTCP studied the reports submitted by Esso, the EQB issued an order requiring Esso to carry out studies to determine the vertical and horizontal extent of the free or dissolved product in the affected area, in order to assess the magnitude of the leak and contamination. The EQB reports that Esso again failed to adequately comply with the order.

Rodríguez continued to operate the station with the new tank system until 1998, when the Puerto Rico authorities ordered the station closed due to detected hydrocarbon odors. Between August 1998 and October 1999, the EQB issued three orders directing Esso to test the fuel storage system. These investigations revealed BTEX concentrations in various soil samples that ranged from 0.32 to 77.5 mg/kg; TPH (gasoline range) concentrations ranging from 24 to 5,200 mg/kg; and total lead results from non-detectable to 31.6 mg/kg. On-site contamination was detected in soil samples at depths just below the groundwater table, while off-site results showed detectable levels of petroleum hydrocarbons in some areas, primarily at the regional water table depth. Esso was ordered to characterize the plume, conduct geophysical tests, create a barrier between the station and the adjacent Piñonas River, and to submit a remediation plan for the contamination.

On May 21, 2001 the EQB issued a show cause order proposing a $76 million fine against Esso for its failure to notify the EQB upon initial discovery of the fuel leakage and its failure to timely investigate and remedy the harm. The EQB also required Esso to submit a corrective action or remediation plan. In September of 2002, the EQB initiated hearings on the proposed penalty and, after contentious debates and allegations of severe bias, Esso filed suit in federal court seeking a preliminary injunction to prevent the EQB from imposing the fine, on the ground that the proceedings were so plagued by conflict and bias that they violated Esso's due process rights. See Esso Standard Oil Co. v. Cotto, 389 F.3d 212 (1st Cir.2004). The case was dismissed, on jurisdictional grounds. However, after exhausting interlocutory relief through the Puerto Rico courts, Esso filed a renewed motion for preliminary injunction in the district court, which was granted. Esso Standard Oil Co. v. López-Freytes, Case No. 03-2319 (D.P.R. Mar. 11, 2005). The order required the EQB to immediately suspend all administrative hearings and proceedings against Esso related to the penalty provision of the order to show cause. It also enjoined the EQB from conducting hearings pursuant to the order, from issuing any judgments or resolutions, final or interlocutory, in the La Vega matter, and from instituting, conducting and/or prosecuting any administrative penalty proceedings against Esso based on or arising from those facts. The injunction became permanent in November 2006. Esso Standard Oil Co. v. López Freytes, 467 F.Supp.2d 156 (D.P.R.2006) (order granting summary judgment and permanent injunction), aff'd, 522 F.3d 136 (1st Cir.2008).

On April 18, 2006, Esso began drilling holes in the ground of the former service station at La Vega as part of its remediation activities. As a consequence, gasoline odors escaped from the site and several plaintiffs, including children, had to visit regional medical centers and hospitals for the treatment of dizzyness,...

To continue reading

Request your trial
9 cases
  • Adkins v. Vim Recycling Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 3, 2011
    ...not entirely a settled matter, most courts have held that RCRA actions are exclusively federal”); Marrero Hernandez v. Esso Standard Oil Co., 597 F.Supp.2d 272, 282 (D.P.R.2009) K–7 Enters., L.P. v. Jester, 562 F.Supp.2d 819, 827 (E.D.Tex.2007); White & Brewer Trucking, Inc. v. Donley, 952 ......
  • Chico Serv. Station Inc. v. Sol P.R. Ltd.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 26, 2011
    ...cited in Chico's complaint are substantively identical to EPA regulations. 18. See, e.g., Marrero Hernandez v. Esso Standard Oil Co., 597 F.Supp.2d 272, 280 (D.P.R.2009); Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 67 F.Supp.2d 302, 306–07 (S.D.N.Y.1999); Gilroy Canning Co. v. Cal. C......
  • Ass'n CONCERNED OVER Res. v. Tenn. ALUMINUM PROCESSORS INC., 1:10-00084
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 11, 2011
    ...citing City of Mountain Park Georgia v. Lakeside at Ansley, LLC, 560 F.Supp.2d 1288 (N.D.Ga.2008); Hernandez v. Esso Standard Oil Co.. 597 F.Supp.2d 272, 286 (D.P.R.2009); Umatilla Waterquality Protective Ass'n v. Smith Frozen Foods, Inc., 962 F.Supp. 1312,1322 (D.Or.1997)). And, several co......
  • San Francisco Herring Ass'n v. Pac. Gas & Elec. Co.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 26, 2015
    ...endangerment to human health and the environment....” Id. ¶ 169 (emphasis added); see also Marrero Hernandez v. Esso Standard Oil Co. (Puerto Rico), 597 F.Supp.2d 272, 286 (D.P.R.2009) (“the court concludes as reasonable plaintiffs' argument that the failure [ ] to take remedial measures sh......
  • Request a trial to view additional results
1 books & journal articles
  • Patching a Persistent Problem: PFAS and RCRA's Citizen Suit Provision
    • United States
    • Environmental Law Reporter No. 50-11, November 2020
    • November 1, 2020
    ...of 0.40 ppb for PFOA in drinking water, based on new data and a “more advanced 130. Marrero Hernandez v. Esso Standard Oil Co. (P.R.), 597 F. Supp. 2d 272, 287 (D.P.R. 2009); Maine People’s All. , 471 F.3d at 279. 131. U.S. EPA, Basic Information on PFAS , supra note 28; Agency for Toxic Su......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT