Lawyers for Exxon Mobil begin case in round 2 of marathon groundwater contamination trial, Maryland high court overturns jury award in Exxon case, new trial ordered

Lawyers for Exxon Mobil begin case in round 2 of marathon groundwater contamination trial by Holly Ramer, The Associated Press, March 4, 2013, Global News
A former Exxon Mobile engineer testified Monday that environmental hazards surrounding the gasoline additive MTBE were widely discussed in water quality and oil industry circles in the mid-1980s, contradicting the state of New Hampshire’s allegations that the oil giant hid its concerns about the product. Barbara Mickelson was the first witness as lawyers for Exxon Mobile Corp. began presenting their defence against the state’s claim that it is owed hundreds of millions of dollars to clean up groundwater contamination caused by MTBE. Jurors had last week off after spending six weeks hearing the state’s case, and the defence is expected to take just as long presenting its side. New Hampshire filed its product liability lawsuit a decade ago against 26 oil companies and distributers, claiming that MTBE – methyl tertiary butyl ether – is a defective product because of its propensity to travel farther and faster and contaminate larger quantities of water than gasoline without additives. The state is seeking more than $700 million to test and monitor 250,000 private wells and clean up an estimated 5,600 contaminated sites, and so far has collected more than $120 million in settlement money.

Lawyers for Exxon Mobile, the only defendant that has settled with the state, argue that MTBE did exactly what it was supposed to do – replace lead in gasoline and cut smog in compliance with the 1990 Clean Air Act. They opened their case by attempting to cast doubt on state witnesses who claimed to be surprised by memos Mickelson wrote describing environmental concerns about MTBE. Former Department of Environmental Services Commissioner Robert Varney testified earlier that he was shocked Exxon Mobile did not share Mickelson’s findings with the state, but Mickelson said the information was widely available at the time. Mickelson, who worked for Exxon from 1984 to 1987, described national conferences she attended along with other oil industry representatives, academic researchers, and state and federal regulators at which papers were presented about the environmental risks posed by MTBE. Though Exxon wasn’t using MTBE at the time, other oil companies were, and they gave presentations about problems they had with gasoline leaks, she said. She also testified that she had discussed MTBE with Maryland officials and the federal Environmental Protection Agency. That was part of a joint investigation with Gulf Oil after gasoline containing MTBE leaked from a Gulf tank and mingled with non-MTBE gasoline from an Exxon tank at gas stations located next to each other. While other lawsuits have been brought by municipalities, water districts or individual well owners, New Hampshire is the only state to have reached the trial stage in a lawsuit over MTBE. Most cases filed in the past decade have ended in settlements. New York City in 2009 won a $106 million federal jury verdict against Exxon Mobil for MTBE contamination of city wells; that verdict has been appealed. [Emphasis added]

Maryland high court overturns jury award in Exxon case, new trial ordered by Jessica Gresko, The Associated Press, February 27, 2013, Global News
Maryland’s highest court has overturned jury verdicts that ordered Exxon Mobil Corp. to pay more than $1.5 billion in damages from a 2006 leak at a gasoline station that polluted a community’s drinking water. In two rulings issued Tuesday, the Court of Appeals of Maryland also ordered new trials in the cases related to the spill. In the larger of the two cases involving approximately 150 families and businesses, a jury in 2011 awarded $1 billion in punitive damages and $495 million in compensatory damages after a trial that lasted months. Seven judges sitting on the court overruled the punitive damages, saying they could only be awarded if the plaintiffs proved Exxon had intended to act wrongfully. The judges said that the Irving, Texas-based company could have done a better job communicating with residents during cleanup from the spill. But the court said plaintiffs didn’t show clear and convincing evidence that Exxon intended to mislead anyone or that they were harmed by relying on any statements the company made. In addition, the court overturned awards the jury handed out for emotional distress and awards related to property values. The court said some residents were awarded money for emotional distress but didn’t provide evidence their wells were contaminated. A few had contaminated wells but didn’t show any injury linked to contaminated water. Some residents were improperly awarded money based on the fear that their property values would decline. Others got awards even though wells on their property were not found to be contaminated. The court also overturned jury awards in a case that involved about 90 households. The jury had awarded approximately $150 million in damages in that case. Exxon said in a statement it was reviewing the court’s decision but that the company had “acted appropriately after the accident and the court has agreed.” “We have apologized to the Jacksonville community and we remain ready to compensate those who were truly damaged by this unfortunate accident. We will continue the cleanup,” the statement said. … Both cases stem from a leak at an Exxon station in the community of Jacksonville, a small, affluent community about 20 miles north of Baltimore. An Exxon contractor doing work at the station punctured a gasoline feed line and the leak was not properly repaired. That allowed more 26,000 gallons of fuel to pour into the ground over more than a month. Many residents in the area get their water from wells, and the spill led the state to order well monitoring in the area. [Emphasis added]

When Good Fuel Additives Go Bad – MTBE by Clara Broten in Nov-Dec-2009-Vol19-No5, Watershed Sentinel
MTBE dissolves easily in water and leakage from gasoline storage facilities is common. Since MTBE is a suspected carcinogen, its presence in ground water was worrying. … However, out of the 23 companies responding, only 3 regularly tested for MTBE in ground water 80% of the contamination discovered was reported by two of those companies. Other sites with MTBE contamination across Canada may be undiscovered due to lack of testing.

Unfortunately, the effects of MTBE on the environment have not been fully tested, and the US EPA has not set a ‘safe’ drinking water level. Most people can’t detect it by odor or taste at 20-to-40 ppb or less. Much of the testing on the effects of MTBE has been on inhaled MTBE, not ingested. Breathing large amounts for a short term can cause nervous system reactions varying from hyperactivity to convulsions in animals. Long term exposure to large amounts of MTBE in the air may cause kidney damage or cancer in animals. The EPA states that effects on humans of long or short term exposures are unknown. Health Canada says that existing studies are not suitable for creating a drinking water standard due to flaws in the test procedures. While there have been no human studies on ingestion of MTBE, high levels of MTBE in gasoline in the US have caused complaints of headaches, eye irritation, and cough.

In the United States during the early part of the decade, more and more states were banning the use of gasoline containing MTBE. As of 2007, 25 states had full or partial bans of MTBE, and some extend that ban to other oxygenates as well. In 2005 most American oil companies stated that they were going to stop using MTBE as of 2006. The bans of MTBE in the US have had an economic impact in Canada. In 1999, Methanex, a British Columbia producer of methanol (a raw component of MTBE) filed a suit under NAFTA as a result of the California ban. They lost the case in August 2005.  It’s interesting that in a similar NAFTA case by Ethyl Corporation against the Canadian government, Canada settled out of court and rescinded the ban on Ethyl’s product MMT, another fuel additive.

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Occurrence of MTBE in Heating Oil and Diesel Fuel in Connecticut by Gary A. Robbins, Brent J. Henebry, Timothy M. Cummins, Christopher R. Goad, Edward J. Gilbert Ground Water Monitoring and Remediation (impact factor: 0.95). 10/2000; 20(4):82 – 86. DOI:10.1111/j.1745-6592.2000.tb00292.x, Research Gate

ABSTRACT The objective of this study was to confirm if MTBE, which is not intentionally added to fuels other than gasoline, is a contaminant in heating oil and diesel fuel. The study entailed conducting a statewide sampling program of heating oil and diesel fuel in Connecticut. An analytical method was developed to conduct analyses of heating oil and diesel fuel for MTBE in the milligram per liter (mg/L) range. The method involved equilibrating product with water to extract MTBE followed by static head-space analysis on aliquots of the water. Analyses were conducted using a gas chromatograph with a MTBE specific column. The statewide sampling program confirmed the widespread occurrence of MTBE in heating oil and diesel fuel. MTBE was detected in all samples collected during our sampling program at concentrations ranging from 9.7 to 906 mg/L in heating oil (26 samples), and from 74 to 120 mg/L in diesel fuel (five samples). Based on these ranges. MTBE concentrations in ground water in the vicinity of heating oil and diesel fuel releases could exceed thousands of micrograms per liter. Our analysis would suggest that the levels of heating oil and diesel fuel contamination observed could result from the commingling of only a few parts gasoline with thousands of parts of these fuels. The extent to which MTBE occurs in heating oil and diesel fuel nationwide is not known, but our data suggests that it may be widespread.

Evidence for Contamination of Heating Oil and Diesel Fuel with MTBE by Gary A. Robbins and Brent J. Henebry, LUSTLine Bulletin 32 The presence of MTBE in fuel oil and diesel fuel is troubling, not only because it indicates  that potential sources of MTBE contamination are widespread, but also because it could well result in increased remediation costs for heating oil and diesel fuel releases and increased litigation between home owners, insurance companies, and oil companies.

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