Engineer testifies as ExxonMobil begins defense in MTBE suit
CONCORD - Environmental engineer Barbara Mickelson wrote the 1980s memos that are central to the state's case against ExxonMobil in the MTBE groundwater contamination trial now entering its eighth week. Appearing in court Monday as the first witness for the defense, she told jurors she didn't think MTBE was a health hazard at the time and wasn't troubled by the company's subsequent decision to use it as an octane-enhancing additive.
Questioned by ExxonMobilattorney James Quinn, she said her April 19, 1985, memo was not intended as a blanket recommendation against MTBE, despite reservations about its environmental risks.
"When you learned later that MTBE was going to be used, did you think it was a mistake?" Quinn asked.
"No, I didn't think so," Mickelson said. "I believed then that MTBE would improve the characteristics of gasoline because you wouldn't have lead and you would reduce the presence of benzene. So I thought overall the MTBE was a positive thing."
Mickelson worked as an environmental engineer for Exxon from 1984 to 1987. In 1991, she started her own environmental consulting firm with a partner.
Her 1985 memo was cited frequently by the state's attorney, Jessica Quinn, during the prosecution portion of the trial to demonstrate that Exxon was warned about the dangers of MTBE by its own engineers as early as 1985, but proceeded to use the additive on a nationwide basis nonetheless.
The memo warned that MTBE is more soluble than other gasoline components, tastes and smells terrible, moves faster through groundwater and is expensive to clean up. "As a result, we recommend that from an environmental risk point of view, MTBE not be considered as an additive to Exxon gasoline on a blanket basis throughout the United States," she wrote.
The memo goes on to say that "on an area-by-area basis, the risks to the environment differ." Mickelson testified that some of the information in the memo later proved to be inaccurate. "The original analysis had some information I learned was incorrect, based on subsequent investigation of contamination," she said.
Questioned on conferences
Quinn maintained in his opening argument that the risks involved with MTBE were widely known, and that Exxon did not try to hide anything from federal or state environmental officials. He questioned Mickelson about numerous conferences she attend in the 1980s, and technical papers that were presented or subsequently published, describing the characteristics of MTBE she outlined in her 1985 memo.
Mickelson said she remembered both EPA and state regulators attending the conferences, and that Exxon was particularly interested in making sure they knew about the dangers of MTBE, because other companies were using it in the early 1980s, but Exxon was not.
"Did you specifically want the EPA to know about MTBE?" Quinn asked.
"Yes," she said. "We used MTBE as a fingerprint for other parties' gasoline, so we felt it was important that the EPA know about it."
Quinn also cited a 1986 letter from Mickelson to EPA official Diane Schott on the dangerous characteristics of the ether-based compound, and a 1986 study published by the Maine Department of Environmental Protection containing much of the same information.
New Hampshire banned MTBE in 2007, after filing suit against ExxonMobil and 21 other oil and gas companies in 2003. All but ExxonMobil have since settled with the state, which has collected approximately $136 million and is seeking an estimated $245 million from ExxonMobil, based on the company's share of the gasoline market in New Hampshire.
In Maryland last week, the state court of appeals reversed two jury verdicts against ExxonMobilin an MTBE pollution case stemming from a 2006 gasoline leak at an Exxon station in Jacksonville, Md. Two juries had awarded plaintiffs $1.65 billion in separate cases that alleged financial harm and property damage, but the appeals court ruled that Exxon hadn't made any fraudulent statements and the plaintiffs hadn't shown they were physically harmed by the leak.