Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SHELL OIL COMPANY, UNION OIL COMPANY OF CALIFORNIA, ATLANTIC RICHFIELD COMPANY, and TEXACO INC., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

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Case No. 06-CV-141 (Senior Judge Smith)

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Pursuant to RCFC 56(h)(1), Plaintiffs Shell Oil Company, Union Oil Company of California, Atlantic Richfield Company, and Texaco Inc. (collectively, the "Oil Companies") respectfully submit the following Proposed Findings of Uncontroverted Fact in Support of their Cross-Motion for Partial Summary Judgment as to Damages. 1. The Oil Companies' refineries "used substantial amounts of 98 percent sulfuric

acid as a catalyst to produce alkylate, a major component in avgas." Stipulations between the United States and the Oil Companies in United States v. Shell Oil Co., No. 91-0589 (RJK) (C.D. Cal.) ("Stipulation") ¶ 493, Pl. Damages SJ App. 36. 2. As the alkylate was produced, the concentration of the sulfuric acid would be

reduced, and when it "reached a concentration in the neighborhood of 87-90 percent in the alkylation unit, it no longer served its catalytic function and was replaced." Id.

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3.

To the extent possible, this "spent alkylation acid" was then "used in acid treating

units in the refinery, ... [resulting in] the production of acid sludge." Id. 4. These acid treating units used spent alkylation acid "in the acid treatment of avgas

base stocks to remove sulfur compounds and thus improve the quality of the stock." United States v. Shell Oil Co., 13 F. Supp. 2d 1018, 1024 (C.D. Cal. 1998), aff'd in part and rev'd in part on other grounds, 294 F.3d 1045 (9th Cir. 2002). 5. Some of the spent alkylation acid was used for "the acid treatment of certain

components before they entered the alkylation process [i.e., the process of producing alkylate which composed 25 to 40 percent of the avgas] in order to remove impurities and improve their quality." Id. 6. Some of the spent alkylation acid arising from the production of avgas was

reprocessed and reused in the production of other products such as motor gasoline and kerosene. Stipulation ¶ 496, Pl. Damages SJ App. 37. 7. "The acid sludge that resulted from acid treating these other petroleum fractions

[i.e., the other non-avgas products produced using spent alkylation acid arising from the production of avgas] was between 35% and 65% strength." Id. 8. "[T]he primary contaminant at the McColl Site is the sulfuric acid." Shell, 13 F.

Supp. 2d at 1026 9. The quantity of non-benzol sulfuric acid waste at the McColl Site ­ both the

spent alkylation acid and the acid sludge ­ was "the same (or slightly greater) ... irrespective of whether the Oil Companies had chosen to made secondary use of the acid for non-avgas products." Id.

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10.

There is no "persuasive evidence that the secondary use of the spent alkylation

acid substantially aggravated the waste cleanup problems at the McColl Site beyond what they would have been in the absence of that secondary use ...." Id. 11. "The [Oil] Companies had massive surpluses of spent alkylation acid that they

would not have had but for the avgas program." Id. 12. "100 percent of the non-benzol waste [i.e., both the spent alkylation acid and the

acid sludge] at the McColl Site is attributable to the avgas program." Id. 13. The parties have previously stipulated that "the Oil Companies' total claimed

response costs (excluding interest but including payments made by the Oil Companies to Plaintiffs) through October 31, 1998 consists of the sum of $64,219,514.46." Stipulation dated September 30, 1999 in United States, et al. v. Shell Oil Company, et al., No. CIV 91 0589 RJK (C.D. Cal.), Doc. No. 489, Pl. Damages SJ App. 46. 14. Of the response costs incurred by the Oil Companies prior to October 31, 1998,

$18 million was paid to the United States and California on or about December 12, 1994 in accordance with a Partial Consent Decree entered on that date. See Partial Consent Decree, Pl. Damages SJ App. 1. 15. The remainder of the response costs incurred by the Oil Companies prior to

October 31, 1998, was paid on or before November 1, 1997, when the Environmental Protection Agency concluded that "construction had been completed according to specifications and the remediation had been successfully implemented." Second Five-Year Review Report for McColl Superfund Site (Sept. 25, 2007) at 14, Pl. Damages SJ App. 50. 16. Through June 30, 2008, interest accrued on the $64,219,514.46 in response costs

incurred by the Oil Companies prior to October 31, 1998, calculated at 2.5 percent simple

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interest, totals $18,400,203.86. Interest continues to accrue at rate of $133,790.66 per month. See Summary of Interest Calculation on Pre-1998 Stipulated Costs, Pl. Damages SJ App. 58. 17. Beginning in November 2002, the Oil Companies have incurred operations and

maintenance expenses in connection with the work done by their contractor, C2REM, Inc. See Declaration of Edmund Bourke ("Bourke Decl.") ¶ 5, Pl. Damages SJ App. 53. 18. To date, the Oil Companies have paid C2REM invoices totaling $1,669,623.31.

Bourke Decl. ¶ 9 & Exhibit A, Pl. Damages SJ App. 53. 19. Interest accrued on the amounts the Oil Companies have paid to C2REM,

calculated at 2.5 percent simple interest, totals $120,986.81 through June 30, 2008. Bourke Decl. ¶ 11 & Exhibit A, Pl. Damages SJ App. 53. 20. In addition, the Oil Companies have paid at total of $118,800 to McAuley LCX

for surface maintenance and site security. Bourke Decl. ¶ 13 & Exhibit A, Pl. Damages SJ App. 53; see also Second Five-Year Review Report for McColl Superfund Site (Sept. 25, 2007) at 15, Pl. Damages SJ App. 51. 21. Interest accrued on the amounts the Oil Companies have paid to C2REM,

calculated at 2.5 percent simple interest, totals $7,635.21 through June 30, 2008. Bourke Decl. ¶ 14 & Exhibit A, Pl. Damages SJ App. 53. 22. The Oil Companies continue to incur monthly expenses for the work done by

C2REM, and interest continues to accrue on both past and current expenses. 23. In total, the Oil Companies have incurred $84,536,763.65 in total costs and

statutory interest through June 30, 2008.

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24.

The Oil Companies allocated these costs among themselves as follows: Shell Union Arco Texaco 58.58 percent 18.94 percent 18.94 percent 3.54 percent

See Bourke Decl. ¶ 16, Pl. Damages SJ App. 54. June 20, 2008 Respectfully Submitted,

s/ Michael W. Kirk Michael W. Kirk Counsel of Record COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220-9600 (202) 220-9601 (fax) Counsel for Plaintiffs Shell Oil Company, Union Oil Company of California, Atlantic Richfield Company, and Texaco Inc. Of Counsel: Michael Weitzner COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220-9600 (202) 220-9601 (fax)

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CERTIFICATE OF FILING I certify that on June 20, 2008, the attached document was filed electronically. I understand that service is complete upon filing and that parties may access this filing through the Court's ECF system.

s/Michael W. Kirk Michael W. Kirk Counsel of Record Cooper & Kirk, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600 (202) 220-9601 (fax)