MDE: Exxon can cut back on tests, end bottled water in Jacksonville

Posted: 6:55 pm Mon, March 1, 2010
By Danny Jacobs
Daily Record Legal Affairs Writer

Steve Tizard, a plaintiff in a prior suit against Exxon, walks past the bottled water in his Jacksonville garage last year.

ExxonMobil Corp. is no longer required to deliver bottled water to families in Jacksonville affected by its 2006 gasoline leak, and can test half as many drinking wells as part of remediation efforts, state regulators have ruled.

Theodore M. Flerlage Jr., lead lawyer for hundreds of Jacksonville plaintiffs still suing Exxon for damages stemming from the leak, has asked the Maryland Department of the Environment’s Oil Control Program to reconsider the decision it reached in early February.

Affected residents should have been notified of the proposed changes in advance and given the opportunity to discuss them with MDE “in an open public forum,” Flerlage wrote to the regulators last week.

Exxon had been delivering bottled water to 126 homes and businesses and testing approximately 250 drinking wells since the 25,000-plus gallon gasoline leak was discovered more than four years ago at a northern Baltimore County station.

In the letter and in an interview, Flerlage said Exxon and private testing still show high levels of groundwater contamination.

“This isn’t going away,” said Flerlage, of The Law Offices of Peter G. Angelos PC in Baltimore. “It’s getting worse and expanding.”

Exxon notified property owners affected by the change last month.

“As a result of our investigation, ExxonMobil does not believe that gasoline constituents above the MDE’s state action levels will be detected in the wells of these houses in the future,” Kevin M. Allexon, an Exxon spokesman, wrote in an e-mail in response to questions. “ExxonMobil will continue to work with MDE and under its guidance to make sure that the groundwater is safe to use and drink.”

Exxon reached a $4 million settlement with MDE in September 2008 related to the spill. The company has spent more than $41 million on the cleanup effort under the direction of MDE.

The department approved the remediation changes in response to Exxon proposals offered in January and posted on MDE’s Web site. A team of MDE toxicologists and geologists overseeing the Jacksonville site reviewed the proposals before a decision was made, said Herb Meade, program administrator for the Oil Control Program.

Meade said it was Exxon’s responsibility to notify residents of the changes and that MDE has received a dozen phone calls in response, most opposed to the end of the bottled-water delivery.

Residents ‘forewarned’

The department ruled water delivery was no longer needed because corrective measures were in place within the defined half-mile “contamination zone,” including filter systems maintained by Exxon.

MDE also agreed Exxon no longer had to test 130 wells twice a year where remediation systems have kept the water from approaching actionable levels of contamination.

The properties “have the benefit of being forewarned”  if contamination exceeds action levels, thanks to “a specifically-designed monitoring well network and continued monthly and quarterly sampling of select private supply wells within the study area,” MDE’s letter states.

The department increased the number of tests on a half-dozen drinking wells, while Exxon must maintain monthly and quarterly test schedules on the remaining properties, the department ruled. Exxon can ask MDE to reconsider the latter decision in six months.

Flerlage said some drinking wells both inside and outside the contamination zone contain between 10 and 10,000 times the allowable levels of gasoline additives benzene and methyl tertiary butyl ether, also known as MTBE, under state and federal guidelines. Benzene is a known carcinogen, while MTBE has been shown in some cases to cause cancer in animals.

“The sampling reduction is going to dramatically reduce the data available,” said Flerlage, adding the changes will reduce Exxon’s testing responsibilities by 70 percent.

$150M verdict on appeal

The remediation changes will not affect either of the Angelos firm’s trials, Flerlage added, the first of which is scheduled to start in the fall with approximately 450 individual plaintiffs and 150 plaintiff households.

Michael B. Snyder, one of the attorneys for 88 other households awarded $150 million last year for damages stemming from the spill, said the changes demonstrate Exxon’s “continuing pattern of putting the bottom line ahead of the public’s well-being.” Exxon is appealing the verdict.

Snyder, of Snyder & Snyder in Pikesville, said he has heard from clients who received the letters from Exxon.

“Our clients and all of the people in the community continue to be concerned about their health,” he said.

Published by Danny Jacobs of  The Maryland Daily Record on March 1, 2010.

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