United States v. Sunoco, Inc. (R&M)

United States v. Sunoco, Inc. (R&M)

Opinion

OPINION

RODRIGUEZ, Senior United States District Judge.

Presently before the Court are two motions by the Defendant: (1) A Petition for Review of the Plaintiffs' August 2006 Position Letter in which Plaintiffs reject Defendant's assertion of the force majeure defense, and (2) A Motion to Seal documents attached to Plaintiffs' briefs in response to Defendant's Petition for Review pursuant to Local Civil Rule 5.3(c). The Court has considered the submissions of the parties and for the reasons that follow finds that Defendant has waived the defense [*2]  of Force Majeure because it did not substantially comply with the notice provisions contained in the Consent Decree. Additionally, the Court denies without prejudice Defendant's motion to seal.

BACKGROUND AND PROCEDURAL HISTORY

Defendant Sunoco, Incorporated (hereinafter "Sunoco" or "Defendant") and Plaintiffs, the respective Environmental Protection Agencies of the United States of America and the State of New Jersey (hereinafter, the "Governments" or "Plaintiffs") are parties to a Consent Decree filed with this Court on December 2, 2003 ¹. Generally, the Consent Decree required the reduction of emissions from the Coastal Eagle Point Plant in Westville, New Jersey by June 30, 2005 (hereinafter, "the deadline"). Sunoco did not meet this deadline and has invoked two defenses which Sunoco submits excuses its noncompliance; P 86 Commercial Unavailability and P 150 Force Majeure. On August 9, 2006, this Court issued an Opinion ² finding that Sunoco was not entitled to relief under the Commercial Unavailability clause for its failure to meet the deadline. ³ [*4]  The Court further determined that Sunoco's claim of Force Majuere was not ripe for review, as Sunoco had not [*3]  invoked the dispute resolutions proceedings of the Consent Decree with respect to that defense. ⁴

On October 31, 2006, Sunoco filed the instant Petition for Review with the Court, asserting that the unavailability of a Flare Gas Recovery System (hereinafter "FGRS") of sufficient capacity created a force majeure situation barring the stipulated penalties imposed by the Governments. ⁵ On December 15, 2006, the Governments concurrently filed their response to Sunoco's Petition with a joint motion to conditionally seal the response. The Governments' response, which attached certain exhibits provided to the Governments by Sunoco under the auspices of confidential business information, was conditionally placed under seal, pursuant to L.Civ.R. 5.3(c), until Sunoco filed its own motion to seal. On January 9, 2007, Sunoco filed its motion to seal. Before deciding the merits of Sunoco's motion to seal, the Court will address the merits of Sunoco's Petition for Review.

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