In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
2948
LETTER addressed to Judge Shira A. Scheindlin from Victor Sher dated 9/5/09 re: Plaintiff City of NY would like to play selected portions of the September 12, 2000 deposition of Mr. George S. Dominguez during the week of trial starting on September 8. Document filed by City of NY.Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-03417-SAS(mro)
EXHIBIT 1
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
Dominguez, George (Vol. 01) - 09/12/2000 Dominguez 09.01.09 Trial Clip
GDO-002 99 SEGMENTS (RUNNING 01:12:10.097)
1 CLIP (RUNNING 01:12:10.097)
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Q. Could you state your full name for the record please, sir? A. Certainly. George, S, which is Steven, Dominguez. Q. Can you provide us a brief history of your educational background? A. Certainly. I attended the City College of New York, Fairleigh Dickinson University. Obtained a BS and an MBA from Kentucky Christian, and much later on a Ph.D. from Sheffield University in Sheffield England. Q. What did you obtain your Ph.D. in? A. Oh, environmental health sciences, which was a concentration in material safety data sheets and hazard communication.
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Q. If you could give us a brief description of your employment background? A. Certainly. I was employed briefly, as I mentioned earlier, as a medical technician. That was at Maimonides Hospital in Brooklyn, New York. Then I left them to join Ciba-Geigy Corporation in 1953. And I was employed at Ciba-Geigy until 1981. And I had various jobs therein. I left Ciba-Geigy in '81 to take on the presidency of Springborn Regulatory Services in Enfield, Connecticut. And that was from '81 to '84. Then I joined SOCMA, Synthetic Organic Chemical Manufacturers Association, in 1984. I was employed by them until approximately 1990. I say approximately because in the latter part of my work with them, I became a part-time employee as opposed to a full-time employee, and then eventually I was just a consultant to them. And on an hourly rated basis. So, it was a transitional period there, but I left them in 1990. And then I started and still maintain my own business. Q. What's the name of your own business? A. Regulatory Assistance page 1
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20 Corporation.
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Q. And then in 1953 you went to work for Ciba-Geigy? A. Yes. Q. What kind of company is that? A. Ciba-Geigy is a diversified chemical company. At the time I was employed by them we had four major divisions; an agricultural chemical division, a dyes and chemical division, a plastics and additives division, and a pharmaceutical division.
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Q. When you were with Ciba-Geigy, did you ever have an opportunity or a situation where you assisted that company in dealings with the EPA under TSCA, the Toxic Substances Control Act? A. Many times. Q. And in those instances, would that be related to the introduction of a chemical into the marketplace? A. Among other things. Yes.
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Q. What is TSCA? A. Toxic Substances Control Act enacted October 26th, 1976. Q. What does it provide? A. It provides for the regulation of the introduction of new chemicals as well as the control of existing chemicals through a series of specifics contained in the fundamental statute and subsequent regulations promulgated by EPA.
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Q. Okay. In mid 1980's did the EPA under TSCA have the authority to request health related information and environmental information from manufacturers of particular products? A. I think they did at that time.
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Q. Sir, based on your experience at Ciba-Geigy when you've testified that you dealt with the EPA under TSCA on hundreds of chemicals; correct? A. I beg your pardon. What did you say I did?
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Q. You dealt with the EPA or oversaw the communications with the EPA under TSCA for hundreds of chemicals; page 2
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MTBE - Phase 3
17 18 19 correct? A. Q. Yes. Correct?
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Q. Okay. Under Section 8, based on your understanding of TSCA, is there a provision that deals with supplementation of information? A. There are rules issued under Section 8 applicable to specific chemical substances. Those applicable rules require the submission of safety and health studies. And I believe there is a provision, I haven't visited that in a long time, to require the submission of any subsequently developed data, again, for those specific chemicals cited in the regulation. Q. Okay. Now, in 1984, you joined SOCMA; correct? A. Yes. Q. Tell me again what SOCMA is.
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A. Synthetic Organic Chemical Manufacturers Association. Q. Okay. What purpose does it serve? A. It was a trade association representing the interests of its membership in connection with a whole variety of activities.
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Q. What is the OFA? A. Well, the OFA, I assume it still is, I don't know, was the Oxygenated Fuels Association. Q. Do you know when the Oxygenated Fuels Association first began? A. I don't know precisely. It was probably 1982 or thereabouts. It was prior to my joining SOCMA. Q. What was the OFA's relationship with SOCMA back when you began employment at SOCMA? A. The easiest way to visualize SOCMA is as in a sense two separate businesses, if will you. The Synthetic Organic Chemical Manufacturer itself, per se, represented several, probably in the order of 100 chemical companies that belonged to the association. It was the
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was that SOCMA is a trade association on the one hand, but it was also a management organization providing infrastructural support and staff to what we refer to as special projects. BY MR. SUMMY: page 3
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MTBE - Phase 3
15 16 17 18 19 20 21 22 Q. Now, did SOCMA provide a trade association for hundreds of chemical manufacturers? A. Yes. Well, I don't know about hundreds. Circa 100. Q. Okay. Was OFA a special project of SOCMA? A. Yes.
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Q. Now in 1984, did you have any dealings with OFA? A. Yes. Q. Describe those. A. I was assigned by SOCMA to be a staff representative for OFA, provide staff support services to OFA. Q. And how would you do that? A. Convene meetings, provide minutes of meetings, make arrangements for any discussions that the members might wish to have with either our internal support staff or any external support, provide a newsletter for the association members, and assist in the recruitment of new members.
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Q. in 1984 were A. and users of
What type of companies back members of OFA? Producers of fuel oxygenates fuel oxygenates.
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Q. Back in 1984 when you joined SOCMA, were major oil and gas companies members of OFA? A. Some as members of OFA. Q. At some point in time while serving as a staff representative with the OFA, did the OFA become interested in a chemical by the name of MTBE, Methyl-Tertiary Butyl Ether? A. Yes, they did. Q. Do you recall approximately when that was? A. That would have been basically from the 1985/1986 period.
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Q. What is your first recollection of monitoring MTBE as a staff representative with OFA?
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A. I'm not sure I understand the question. What does monitoring mean in that context? Q. As a staff representative, keeping up with a topic of interest to your members.
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A.
Definitely from '84/'85 page 4
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
08 09 10 11 onwards because we were interested in all oxygenates. So perhaps I should clarify and say as a staff representative, we were interested in all oxygenates.
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Q. Back in 1984/1985 when you were a staff representative for OFA, do you recall when you first learned that MTBE was more soluble in ground water than let's say the BTEX chemicals, benzene, toluene, ethyl benzene, and xylene? A. I don't believe I ever learned that. I'm not sure that's scientifically true. Q. So your testimony is, is that as you sit here today, you don't recall ever knowing that MTBE was more soluble in ground water than the BTEX chemicals? A. No, I don't. Q. Do you recall any member of OFA ever informing you of that fact? A. No. I recall discussions about MTBE, but not differential solubility. Q. Back in the 1984/'85 time frame when you were a staff representative at OFA, do you recall learning that MTBE, when released to ground water, was more mobile and traveled faster than the BTEX chemicals? A. I recall that was stated by some individuals, agencies, whatever. I don't recall that being documented. Q. Sir, do you recall, as you sit here today, any member companies of OFA informing you of the fact that once MTBE was released into ground water, that it would travel faster and further than the BTEX chemicals of gasoline? A. No, I don't recall that. I recall, as indicated, discussions about MTBE and differential solubility, but not that specifically. No.
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Sir, as you sit here today, do you recall any of the member companies of OFA informing you that MTBE was much more resistant to biodegradation than let's say the BTEX chemicals? A. No, I don't recall any discussions about biodegradation per se.
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Q. Sir, do you recall a time back in the mid 1980's when the EPA designated MTBE under TSCA? A. Yes. I do. Q. What did it mean when the EPA placed that designation under TSCA on a chemical? page 5
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
19 20 21 22 23 24 00040:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 A. It meant that it was going to be considered by the agency for potential testing. Q. What type of testing? A. I don't think that was at that time specified. I think it was to be determined subsequently. Q. Sir, do you recall MTBE being designated by EPA under TSCA? A. Yes. Q. Do you recall approximately when that was? A. No. It would have been in the '80s, but I don't recall the precise date. Q. Okay. Do you recall at that time in the mid 1980's, after EPA designated MTBE under TSCA, that you were involved in the formation of what has become known as the MTBE Committee? A. Yes.
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Q. Sir, do you recall when you began representing the industry as the executive director of the MTBE Committee in communications with the EPA?
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THE WITNESS: Approximately 1986, I believe, was when the task force was created. I don't recall the exact date.
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Q. Whose idea was it to form the MTBE Committee to deal with the EPA on the TSCA issue? A. Members of OFA.
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Q. At some point in time, was there a decision made by someone to include you in communications with the EPA related to MTBE? A. Yes.
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Q. Okay. At the time that the OFA made the decision to oversee the representation of MTBE with the EPA, was the MTBE Committee formulated at that time? A. No. I think it was as a result of that. Q. Okay. Who at the OFA made the decision to oversee the communications with the EPA related MTBE? A. The OFA management committee, steering committee, whatever its proper term was at the time. Q. Would that have been comprised of members of the OFA? A. Yes. page 6
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
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Q. Do you recall who the members of the OFA were that made the decision for the OFA to oversee communications with the EPA related to MTBE? A. No, I do not recall all of them.
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yes.
Q. A.
Do you recall Exxon? Now that you mention them,
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Q. Well, if you take a look at Exhibit 2. A. Okay. Q. The title is Minutes for the Public Focus Meeting for MTBE December 17th, 1986; correct? A. Yes. Q. And if you take a look at about the third page, you'll see a sign-in sheet? A. Right. Q. And I believe if you look at the third name down, that is you; correct? A. Mm-hmm.
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So initially you began showing up at the meetings with the EPA in your capacity with OFA? A. Yes. Q. Okay. Now, if you take a look at the minutes and you take a look at the first paragraph on Deposition Exhibit Number 2, and if you look at
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Q. That one right there. And if you take a look at the last two sentences of the first paragraph, it begins "an additional concern?" A. Mm-hmm. Yes. Q. It says, An additional concern brought out by TRDB research was the contamination of ground water supplies by MTBE. There are over 700,000 underground storage tanks for petroleum products in the US and about 30 percent of these tanks leak. Do you see that entry? A. Yes. Q. Now, you were at this meeting of December 17th, 1986; correct? A. Yes. Q. And at this meeting, the EPA brought out an additional concern over MTBE's contamination of ground water; correct? A. Yes. page 7
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MTBE - Phase 3
04 05 06 07 08 09 10 11 12 Q. And if you look down at the last paragraph of that document, on the first page, it says, The industry representatives were encouraged to submit supplemental information and the mandatory 8(a) and 8(d) information for the Agency's course setting process. Do you see that? A. Yes.
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Q. Well, isn't it important that companies like ARCO Chemical Company, who do provide information to the EPA under TSCA, that that information be forthcoming and accurate?
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I would have such an expectation.
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Q. Have you had the opportunity to take a look at Deposition Exhibit Number 5? A. I have. Q. Deposition Exhibit Number 5 is a -- the first page is a letter dated January 9th, 1987, from ARCO Chemical Company, W. J. Kilmartin to Mr. J. A. Del Pup at Texaco. And it says, Dear John: As discussed, attached is the proposal that George Dominguez from OFA made. I've included the proposed agenda for the January 16, 1987, meeting. Do you see that? A. Yes.
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Q. And then attached to it, beginning with the second page, is a document entitled Proposal and Rationale for the Formation of an MTBE Group dated January 16th, 1986. Do you see that? A. Yes.
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Q. My question is, who drafted the proposal and rationale for the formation of an MTBE group? A. I did. Q. So you would have drafted the -- beginning with the second page of Deposition Exhibit Number 4, going all the way through the agenda. And I realize those may not be your handwritten notes on the agenda at the back of the exhibit, but would you have drafted the agenda as well? A. Yes.
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Q. Correct. I believe that on the second January 16th, 1986, it should read 1987; correct? page 8
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MTBE - Phase 3
23 24 00063:01 02 A. (Gesturing.) Q. Is that your understanding Mr. Dominguez? A. Yes.
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Q. What prompted you to prepare this document? A. The premise of initiating an MTBE task force necessitated inclusion of other companies that were not members of OFA.
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Q. After you prepared the document, what did you do with it? A. As far as I recall, we sent it to OFA member companies and others that we thought might be interested in joining an MTBE organization.
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Q. When we went off the record I was reading from the first paragraph of Deposition Exhibit Number 5 on the fourth page. It says, It is well recognized that MTBE is growing in importance. Its use in gasoline is becoming more widely accepted with a commensurate increase in the volume being used. And then you say, From the perspective of its existing market share as well as to provide for additional market development, the establishment of a discrete group that could represent MTBE interests is logical at this time. In fact, the logic of establishing an MTBE group in the very near future is further reinforced by some recent developments. And the first development you state is, The potential need for testing MTBE pursuant to potential EPA actions on health hazards of MTBE and gasoline containing MTBE. Do you see that? A. Yes. Q. And then if you look down at the third bullet point you have, Possible representation with the state of Maine regarding contention that MTBE is a ground water contaminate. Do you see that? A. Yes. Q. Sir, do you recall at the time that you wrote the -- this document that has a heading, The Need for Establishing an MTBE Task Force,that some regulators in the state of Maine had come out and documented a number of sites where MTBE had contaminated ground water in the state of Maine? A. I don't remember specific citations, but I, in principle, recall that. page 9
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MTBE - Phase 3
13 14 15 16 17 18 19 20 Q. If you take a look at down below there is a section called The Need for an MTBE Task Force. A. Mm-hmm. Q. And you basically document two recent issues of considerable importance to the future of MTBE. Do you see that?
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THE WITNESS: Yeah, right. BY MR. SUMMY: Q. And you state there had been two recent issues of considerable importance to the future of MTBE. A. Yes. Q. Do you see that? A. Yes. Q. And one of them is EPA's examination of MTBE under TSCA; correct? A. Yes. Q. There is also a section on fuel contamination. Do you see that? A. Yes. Q. You cite that as a reason to prepare or formulate an MTBE group; correct? A. Yes. Q. And then the last issue is the Maine ground water contaminant issue. Do you see that? A. Yes. Q. And you state that The state of Maine has established a maximum contaminant level of 50 parts per billion for MTBE. According to recent reports, concentrations of 690 parts per billion were found in drinking water. The Maine Department of Environmental Protection has issued a report on the hazards of MTBE as a ground water contaminant and has recommended that MTBE should be banned as a gasoline blending component or at a minimum stored in extra-secured tanks. Do you see that? A. Yes. Q. Why was the Maine ground water contaminant issue a development that you believe should lead to the formation of an MTBE group? A. I believe that it was part of enumerating concerns relative to MTBE. Q. What do you mean? A. I mean that in the context of forming an MTBE group, people are naturally interested in why should such an institution be formed. On that premise you enumerate areas of actual or potential concern. Q. And why was the Maine ground water contaminant issue a concern? A. Well, clearly it imposed a potential for disruption of MTBE use, whether it be in Maine or elsewhere. Q. After that you lay out the objective of an MTBE task force. Do you page 10
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11 12 13 14 15 16 17 18 19 20 21 22 23 24 00072:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00073:01 02 see that? A. Yes. Q. And you state some of the things that the MTBE Committee would do under your view of things; correct? A. Could do. Q. Okay. And then you list out specific activities that the task force could undertake; correct? A. Yes. Correct. Q. And among those would be to liaison with the EPA regarding the ITC listing of MTBE; correct? A. Correct. Q. And then on the next page you continue with the various activities the specific committee could undertake. And among those would be the development of environmental impact analysis. Do you see that? A. Yes. Q. Sir, do you know if anyone, including the MTBE Committee, ever developed an environmental impact analysis on MTBE? A. Not that I recall. Q. You also have down that one of the activities that the committee could do would be to represent MTBE interests in Maine; correct? A. Yes. Q. Also, after that would be to evaluate potential ground water contamination? A. Yes. Q. Develop market for MTBE? A. Yes. Q. And act as an informational resource for MTBE; correct? A. Yes.
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Q. Sir, have you had the opportunity to review Deposition Exhibit Number 6? A. Yes. Q. And it is a document on OFA letterhead entitled Oxygenated Fuels Association MTBE Technical Committee Meeting Minutes, dated Friday, January 23rd, 1987. The meeting having taken place in Washington, DC. Do you see that? A. Yes. Q. Now, what was the purpose of this meeting? A. That was essentially an organizational meeting in connection with forming an MTBE association.
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Q. Okay. And the minutes are dated January 23rd, 1987, but it appears that the meeting took place on Friday, January 16th, 1987; correct? And I'm looking at that in the first paragraph. page 11
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09 10 11 12 13 14 15 16 17 18 19 20 A. That is what it says. I can't account for the discrepancy. Q. And then it provides a list of those who were in attendance at the meeting; correct? And it's the first subheading. A. In the first page, yes. Q. Okay. And certainly you were present at this meeting? A. Yes. Q. Correct? A. Yes.
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Q. And what it describes there is Mr. Ed Guetens of ARCO began to explain the reasons behind establishing the group. Do you see that? A. Yes. Q. And if you go to the second page, page 2, in the first full paragraph, it says in this context, Mr. Guetens reviewed the information contained in the letter of invitation of the meeting, and in specific the paper prepared by Mr. Dominguez, executive director of OFA. Do you see that? A. Yes. Q. And there he's talking about your paper which we identified as part of Deposition Exhibit Number 5, which was entitled Proposal and Rationale for the Formation of an MTBE Group; correct? A. Yes. Q. And after that, Mr. Guetens then outlined numerous objectives that the organization might have. Do you see those? A. Yes. Q. Number 1 is represent MTBE interest to EPA regarding ITC action. Number 2, provide a form in which MTBE producers, importers and users could provide a basis for responding to environmental concerns that have been raised in a number of states regarding ground water contamination. Number 3 is prepare technical literature. And number 4, assist in market development by providing an organization which would be able to provide information to the government and public. Do you see that? A. Yes. Q. And the next paragraph Mr. Guetens summarizes. He says, in summary, he indicated that serious consideration should be given to the establishment of the group. Do you see that? A. Yes.
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Q. Sir, at this point in time, did you feel that it was important that page 12
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22 23 24 00081:01 02 03 04 05 such a group be established? A. Yes. Q. And why is that? A. I felt that in the same context that we needed representation for oxygenated fuels, it would be appropriate, given the importance of MTBE, to have an organization for MTBE.
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Q. Did you also feel it was important to establish a group because of the Maine, state of Maine ground water issue that had arisen? A. I believe all the points that we considered to be the justification for the group were enumerated in the rationale for the paper, I mean the rationale paper that we presented.
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Q. And the state of Maine ground water issue was certainly one of those points; correct? A. Yes, it was.
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Q. Now, if you look at page 3, there is a review of the ground water contamination issue. Do you see that? A. Yes. Q. And a Mr. James D. DeJovine with ARCO, it states, he reviewed the question of ground water contamination highlighting the study conducted in the state of Maine and distributed a copy of the paper entitled MTBE as a ground water Contaminant prepared by Dr. Peter Garrette, Marcel Moreau, and Jerry Lowry of the University of Maine. Do you see that? A. Yes. Q. Certainly the Maine ground water issue was one of the issues that was giving rise to the need to formulate the MTBE Committee; correct? A. Yes.
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Q. If you look at the next paragraph, it says, Mr. DeJovine indicated that other states such as North Carolina have also raised this question, and that while it was not a concern raised by the ITC in their recommendation to EPA, that EPA in their December 16th, 1986, focus meeting had indicated that they intended to address the environmental issue as well as the toxicological concerns raised by ITC in their review. Do you see that? A. Yes.
page 13
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Q. What I would like to ask you about is, what happened after this meeting? In other words, was a committee established? A. An MTBE Committee? Q. Yes. A. Yes.
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Q. Sir, have you had a chance to review Deposition Exhibit Number 7? A. Yes, I have. Q. Can you identify this document? A. MTBE Committee bylaws. Q. Sir, was this the bylaws of the MTBE Committee that was established? A. They are the proposed bylaws. I don't recall if they are exactly what was finally established. Q. Did the MTBE Committee after it was formed adopt bylaws? A. Yes, they did. Q. Do these appear to be a draft of those bylaws? A. Yes.
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15 16 17 18 19 20 21 22 23 24 00094:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00095:01 02
Q. Okay. Now, if you look at the bylaws, Deposition Exhibit Number 7, under paragraph 1.02, the objectives. Do you see that? A. Yes. Q. And the last sentence in that paragraph says, In particular, the Committee will: A. Address environmental, health and safety issues relating to MTBE by (i) collecting data from member companies and other sources and (ii) sponsoring programs to develop data unavailable from other sources. Next page, B. Address federal and state regulatory issues relating to MTBE by (i) providing technical data to appropriate regulatory agencies and legislative bodies and (ii) meeting with appropriate governmental officials to develop acceptable solutions. C. Assist in the formation of the task force to be named the MTBE Health Effects Testing Task Force specifically for the purpose of conducting and funding testing of MTBE required under a Toxic Substances Control Act ("TSCA") Section 4 Consent Order or Test Rule. D. Make available to interested parties and the general public technical and scientific information relating to the use of MTBE in fuel. And E. Provide a form for the exchange of information appropriate to the objectives stated herein above page 14
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03 04 05 06 07 08 09 between producers and users of MTBE. Do you see that? A. Yes. Q. Is it your recollection that the bylaws that were adopted had these goals in it as well? A. Yes.
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Q. Do you recall Exxon being a member of the MTBE Committee? A. Yes.
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Q. Do you recall Texaco being a member of the MTBE Committee? A. Yes. Q. Do you recall Texas Petrochemical being a member of the MTBE Committee? A. Yes.
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Q. Also attached to Deposition Exhibit Number 8 is a copy of the charter of the MTBE Committee. Do you see that? A. Yes. Q. To your recollection, is that a correct statement of the charter of the MTBE Committee?
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A. Yes. Q. In fact, does it appear to be very much the same as the objectives that are set forth in the bylaws, in Deposition Exhibit Number 7?
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A. Yes. Q. I think in the bylaws, C, the establishment of the Health Effects Testing Task Force is the only thing that's an addition thereto; correct? A. It would so appear.
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Q. Do you recall, sir, if the companies that were members of the committee, in fact, agreed to the charter of the committee and the objectives that are stated in the bylaws? A. That was the condition of membership. Q. In fact, the charter and the objectives were agreed upon by each member company; correct? A. Insofar as I know. Q. Do you know of any company that was a member who disagreed with the charter or the objectives of the MTBE Committee? A. No, I do not.
page 15
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Q. Now, to your understanding was the final bylaws signed by each of the member companies? A. I believe they were.
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06
Q.
Okay.
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Q. Sir, Deposition Exhibit Number 9 is entitled MTBE Health Effects Task Force Participation Agreement dated August, 1987. Do you see that? A. Yes.
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Q. Now, what does the -- how does the Health Effects Task Force differ from the MTBE Committee? A. The Health Effects Task Force had a specific purpose which was to undertake the testing that might be required of MTBE as a result of the EPA actions. Q. Okay. And did this agreement also take into account how the cost of such testing that the EPA may require, how that would be split up among the member companies? A. It did. Q. And in fact, that was based upon the amount of MTBE that you produced. Correct?
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05
A.
Yes.
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03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00112:01 02
Q. Sir, Deposition Exhibit Number 10 is a telephone account, or it's an account of a telephone conversation between Beth Anderson of EPA and yourself regarding MTBE dated February 2nd, 1987; correct? A. Yes. Q. And it says, George Dominguez of Oxygenated Fuels Association (they are methanol producers) has formed an MTBE coalition. He said their MTBE Committee involves manufacturers, importers, engineering and technology. I asked if he knew of any importers (I thought we were exporting) he said they didn't have any importers at this time. And it says Dominguez is requesting all 8(a) & 8(d) information be sent to his office and EPA. He is working with manufacturers to see the February 12th deadline is met. Their MTBE Committee has 3 task forces: 1) Health Effects - Steve Ridlon, ARCO, chair. 2) Exposure (includes ground page 16
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03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00113:01 02 water). 3) Economic impact. These task forces will review information and have their analysis ready by the end of February. Do you see that? A. Yes. Q. Now, at this date, February 1987, is it your understanding that the MTBE Committee had already been formed? A. It had been formed in principle. I'm not sure it had been formed in the legal sense of formed. Q. In other words, the agreements that we looked at which were Deposition Exhibit Numbers 7 and 9, those might not have been signed, but certainly there was an agreement to have a group that would communicate with the EPA; correct? A. Yes. Q. And you were going to be the primary person responsible for that communication; correct? A. Yes.
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Q. Sir, I have handed you what's been marked as Deposition Exhibit Number 11 which is a February 12th, 1987 letter from you to Dr. Beth Anderson; correct? A. Yes. Q. And the top of the left hand of the letter says MTBE Committee on it? A. Correct. Q. So did the MTBE Committee have its own letterhead? A. Eventually it did.
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Q. Okay. It says, Dear Dr. Anderson: As you know from our conversation last week, we have formed an MTBE Committee. In order to provide you with some additional information, I am pleased to attach a copy of the Committee's charter. Do you see that? A. Yes. Q. Attached to this document is a charter of the MTBE Committee; correct? A. Yes.
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Q. Okay. And the second paragraph of this letter says, As you can see, one of our objectives is to work cooperatively with appropriate government agencies and, in that context, I am pleased to confirm that we are preparing an integrated response on behalf of the MTBE Committee to the questions raised at your December 16th focus meeting on MTBE; correct? A. Yes. Q. And at that focus meeting page 17
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22 23 24 00117:01 the EPA had raised the issue of ground water contamination related to MTBE; correct? A. Yes.
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Sir, at the time that you were working with the MTBE Committee, do you recall what your title was? A. I think it was executive director. Q. Okay. What were your duties and responsibilities as executive director of the MTBE Committee? A. Arranging meetings, hosting the meetings at our offices or other locations, in concert with the chairman of the committee preparing agendas, preparing minutes of the meetings, arranging for meetings with third parties, EPA. Participating to the extent possible in those meetings.
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Receiving the information on production in relationship to calculation of funds. Q. Did you also assist the member companies in collating information that would be sent to the EPA by the MTBE Committee? A. Yes. We collected data that was submitted to us from the member companies and transmitted some of that data to EPA. Q. Now, the data that was collected by you, was all of that information provided to you, the MTBE Committee and yourself being the executive director by member companies? A. I'm not sure I understand the question. Q. Well, did you or the OFA independently prepare information to send to the EPA? A. No. Q. In other words, you had to rely on that information to come from your member companies; correct? A. Yes.
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And then if you take a look at the second page, Item D, it says, Item D requests more information on the presence and persistence of MTBE in ground water. Do you see that? A. Yes. Q. Do you recall that being one of the data gaps that was identified at the focus meeting that you attended? A. I recall ground water being one of the concerns raised. I don't recall the specific data gaps enumerated by EPA as such. Q. Okay. And if you look at page 18
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19 20 21 22 23 24 00124:01 02 03 page 3 of this exhibit, there is an attachment one, Roman Numeral III, data gaps? A. Yes. Q. And if you look down at D, it says, TRDB needs more information on the presence and persistence of MTBE in ground water. Do you see that? A. Yes.
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Q. At any time when you were executive director of the MTBE Committee, did any member company inform you of specific ground water problems they had encountered related to MTBE? A. The only references that I recall were to citations in the literature or papers, for example, the Garrette paper that was mentioned earlier. I don't recall any specific indications of individual companies such as cited here. Q. Do you recall any member company of the MTBE Committee specifically informing you of a particular problem that they may have had related to ground water contamination by the chemical MTBE at one of their service stations? A. No. Q. Do you recall any other gasoline company that may not have been a member of the MTBE Committee providing you any information related to their experience of ground water contamination with MTBE at particular sites? A. No. Q. Do you recall as part of your role as executive director of MTBE Committee inquiring into the area of ground water contamination with respect to your member companies? A. Yes, in the context of gathering data to be submitted in fulfillment of this data gap or in the context of the ITC requirement. Q. And how did you do that? A. We surveyed the members in terms of providing us as indicated in that telephone conversation that was summarized before with Beth Anderson. We requested the companies to provide us with data. Q. And did you contact each of the member companies to request that data? A. Not personally. If I recall, by mail. Q. Okay. And what do you recall receiving in return from the member companies by way of information related to ground water contamination? A. I just recall various studies that had been undertaken by the page 19
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MTBE - Phase 3
24 00127:01 02 03 04 05 06 companies which were in turn collated and submitted to the agency. Q. Do you recall any of the companies informing you of specific examples of ground water contamination by MTBE that they may have experienced at service stations?
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THE WITNESS: No, I don't recall. BY MR. SUMMY: Q. Do you recall any of the member companies informing you that they had conducted internal studies related to MTBE and had determined that MTBE was more soluble than other gasoline components and it did not biodegrade like other gasoline components?
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THE WITNESS: No. BY MR. SUMMY: Q. They did not provide you that information?
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03
THE WITNESS:
No.
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Q. Did any of the member companies inform you that they had been members of an MTBE task force associated with API, and that as a result of that membership, they had learned that at numerous service stations there had been releases of gasoline containing MTBE, and that MTBE migrated faster and further than other chemicals of gasoline? A. No, I don't recall that.
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Q. Did anyone at Exxon inform you in 1987 that they had learned from experiences in the early 1980 from a site in Thurmont, Maryland and another site in Jacksonville, Maryland that MTBE migrated faster and further than any other gasoline chemicals? A. No. Q. Did anyone at Exxon inform you that they had learned from their experiences in the early 1980's from releases from underground storage tanks that when the gasoline contained MTBE, it had a very low odor and taste threshold much more so than the BTEX chemicals? A. No, I don't recall. Q. Did anyone at Exxon inform you that they had learned from the early 1980's from their leaking underground storage tanks that MTBE cannot be removed from water by carbon absorption? A. No. page 20
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09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00135:01 02 03 04 05 06 07 08 Q. Did anyone at Exxon inform you that based on an internal analysis that they had done that they estimated that if MTBE were placed in the stream of commerce, that it would contaminate three times as many ground water wells in the country? A. No. Q. Did anyone at Exxon ever inform you that based on an internal analysis they had conducted that they estimated that if MTBE were introduced into gasoline, that their number of leaking underground storage tank incidents would double or triple? A. No. Q. Did anyone at Exxon inform you that they had conducted an internal analysis wherein an environmental committee recommended to the management of the company that MTBE not be placed in gasoline that would be delivered along the east coast? A. No.
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Q. Deposition Exhibit Number 13 is a letter with an attachment. The letter is from you, George Dominguez, executive director of the MTBE Committee to Dr. Beth Anderson with the EPA dated February 27th, 1987; correct? A. Yes. Q. And it says, As you know from our earlier conversations, the MTBE Committee has recently been formed and I am pleased to submit the attached statement on behalf of the Committee relative to the Federal Register announcement of the ITC's intention to designate MTBE for priority testing consideration under the Toxic Substances Control Act (51 Federal Register 41417, November 14th, 1986). The submission is also intended to be responsive to discussions held at the December 16th focus meeting. Do you see that? A. Yes. Q. Who prepared the attachment that has a title of Comments of the MTBE
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Committee on the Interagency Testing Committee's Recommendations Concerning Methyl Tertiary Butyl Ether.
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THE WITNESS: To the best of my recollection, that was prepared by the committee, that is the MTBE testing task force representatives. And then, I believe, it was finalized by counsel page 21
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06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00140:01 02 03 04 05 06 07 08 09 10 11 12 13 14 BY MR. SUMMY: Q. By legal counsel? A. Yes. Q. Now, when you say it was prepared by the MTBE Committee, how would that have occurred? A. They would have had a meeting and reviewed the various documents referred to in the appendices and drafted a summary conclusion predicated on that review. Q. Now, this particular document was intended to answer the -- or respond to the concerns that were brought out by the EPA in the December 16th focus meeting related to MTBE ground water contamination; correct? A. In part. Yes. Q. And is it your recollection that the members of the MTBE Committee had the opportunity to review this document and make any changes they saw fit prior to it being sent to the EPA? A. That is my recollection. Q. Did you draft any portions of the comments? A. I certainly drafted, as I recall, the cover letter, but I don't recall drafting the comments per se. No. Q. Now, if you look at the comments, I believe, Section II is entitled Occupational and Environmental Exposure.
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Q. And if you look at page 12, 13, and 14 of the comments.
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Q. Okay. There is a section called MTBE in ground water? A. Yes. Q. Do you see that? A. Yes. Q. Who would have drafted that section? A. I don't know specifically. Q. Would it have been members of the MTBE Committee? A. Oh, yes. It would have been a member of the -- either the committee or the task force. Yes. Q. Okay. And then on page 13, page 78, fax page up top, there's a section that goes from pages 13 to 14 that deals with Biodegradation/Persistence. Do you see that? A. Yes. Q. Who would have drafted that section of the paper? A. Same answer. It would have been a member of the task force. Q. Would you have had the expertise to draft those sections of the comments? page 22
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04 05 06 07 08 09 10 11 12 A. No. That's not my area of expertise. Q. Would you have expected members of the MTBE Committee in preparing this document to respond to the EPA's concerns to be forthcoming with information and as accurate as possible? A. That would certainly be my expectation.
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Q. After the comments that are listed in Deposition Exhibit Number 13 were finalized by the MTBE Committee, you would then take those comments, prepare this cover letter and send it on to the EPA? A. Yes. Q. Would the members of MTBE Committee also get a copy of what you sent to the EPA? A. Absolutely. Q. Now, after this document was sent to the EPA on February 27th, 1987, do you recall providing any other information that related to the ground water issue to the EPA? A. Not specifically, no. Q. Sir, based on your recollection as to the final consent agreement that was entered into by the member companies and the EPA, did the EPA require any environmental monitoring or testing of MTBE at manufacturing sites, terminals, or service station sites? A. Not that I recall.
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Q. Do you recall any occasions where any member of the committee objected to the content of a document being submitted to the EPA concerning MTBE? A. No, I do not. Q. So, as best you can recall, the industry was of one mind, at least concerning the documents that were submitted to the EPA?
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THE WITNESS: Well, it represented the conclusions of those who were members. Beyond that, I have none. BY MR. MILLER: Q. Those are the companies that you identified earlier in this deposition; is that correct? A. Those are the companies that I enumerated and were on the list that I was shown from those that I could not recall.
page 23
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Q. Sir, would the companies on this list on Exhibit 8 have been given the opportunity to attend the meeting and make any comments they wished? A. Yes. Q. And certainly several of them did attend and participate? A. Yes.
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Q. Was it your practice to circulate a copy of the document that was being considered for submission to the EPA before it was submitted to that group to get any comments, corrections, or additions from committee members that were interested in participating? A. Yes. Q. Was it also your practice to circulate the final document that was sent to the EPA in to each of those members? A. Yes. Q. And do you recall any occasions where someone who failed to attend a meeting received a final version of a document and said we need to submit a correction? A. No. I have no recollection of that occurring. Q. All right. And at the time these documents were prepared, is it fair to say Exxon was the committee, sir? A. Yes. Q. ARCO? A. Yes. Q. Texaco? A. Yes. Q. Shell?
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A. Yes. Q. And do you recall any of them objecting to the reports that were submitted to the EPA, any of the four companies I just mentioned? A. No.
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Q. Do you have Exhibit 12 before you? A. Yes. Q. And just so the record is clear, this is a submission to the EPA with a cover letter signed by Mr. Kilmartin; is that correct? A. Yes. Q. And he's from ARCO? A. Yes. Q. Was he an active participant in these committee meetings that we're talking about on behalf of his employer? A. I don't remember him being page 24
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09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00158:01 02 03 04 present at all the meetings. He was present at some. Q. Okay. The third page of the exhibit, if you could turn to that. A. Yes. Q. It has a list of data gaps? A. Yes. Q. Now, from your experience in working with the EPA over the years, could you explain what a data gap is? A. A data gap is information which the agency feels is necessary for them to assess the properties and characteristics of the substance in question. Q. This is a specific written request for information to fill a gap in the information available to the EPA; is that correct? A. Well, it can take that form.
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Q. Do you see the list of data gaps that's part of the exhibit? A. I do. Q. Do you see one of the items that concerns ground water? A. Yes. Q. Could you read it for the record and then I'm going to ask you a question about it, please? A. Certainly. It's Item D, TRDB needs more information on the presence and persistence of MTBE in ground water. Q. Now, is that consistent with your memory that when you interacted with representatives of the EPA on MTBE, they were asking for more information on ground water?
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THE WITNESS: Yes. BY MR. MILLER: Q. And did you attempt through contacts with committee members to obtain any information they had on that subject? A. Yes. Q. And is it your understanding that from their participation, members of the committee were aware that the EPA wanted information on that subject? A. Yes. Q. Do you recall at any point in time any representative of the EPA saying that they had enough information on the subject of MTBE in ground water and didn't want any more? A. No. Q. Is it fair to say that throughout the time that you worked with the EPA, they were still seeking any information that the committee had available to it concerning MTBE and its potential impacts on ground water? A. Yes. page 25
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18 19 20 21 22 23 24 00161:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00162:01 02 03 04 Q. Is it also fair to say that if you had received data showing that MTBE would adversely impact ground water, you would have known that it would be responsive to EPA request for information that you had received? A. Yes. Q. And you would have provided that information had it been given to you? A. I certainly would, on my own behalf. Q. And the only reason you didn't provide information of that type is that you didn't have it; is that correct? A. Yes. Q. Now, you were relying on members of the committee to furnish you with accurate information on that subject; is that correct? A. Yes. Q. I want to contrast two things. I'm going to call gasoline without MTBE conventional gasoline. Are you comfortable with that? A. Yes. Q. And I'm going to call gasoline with MTBE, MTBE gas. Okay? A. Clear. Q. Do you recall anyone who was a member of the committee advising you at any time that MTBE gasoline created more of a ground water contamination problem than conventional gasoline?
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08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00163:01 02 03 04 05 06 07 08 09 10 11 12
THE WITNESS: No, I don't have a recollection. BY MR. MILLER: Q. Okay. Let me show you Exhibit 2, which is dated December 17, 1986. A. Okay. Q. Just so the record is clear, could you identify the document, since we haven't mentioned it in a while? A. Minutes for the Public Focus Meeting for Methyl Tert-Butyl Ether (MTBE) dated December 17, 1986. Q. If you look at the bottom of the page of these minutes, it states -A. Yes? Q. "The industry representatives were encouraged to submit supplemental information and the mandatory 8(a) and 8(d) information for the Agency's course setting process." Do you see that? A. Yes. Q. Now, you're familiar with the Toxic Substances Control Act from your years of interaction with the EPA? A. Yes. Q. What does 8(a) and 8(d) refer to? page 26
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13 14 15 16 17 18 19 20 21 22 23 24 00164:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00165:01 02 A. They refer to Section 8 of the Toxic Substances Control Act. Q. And basically it's your understanding that provides the EPA with the legal authority to require companies that have a particular product that they're interested in to submit data? A. Yes. Q. Was it your understanding that the submissions that we've talked about in this deposition by the committee were in part submissions under the Toxic Substances Control Act? A. Yes. Q. And is it your understanding that any submissions about ground water would be included within that particular request for information I just quoted? A. Yes. Q. Now, if we turn to the persons who attended that meeting, do you see the sign-in sheet for the December 17, 1986, meeting? A. I do. Q. The first person listed as signing in was Mr. Art Lington of Exxon Corporation; correct? A. Yes. Q. The next person is Mr. James DeJovine of ARCO Chemical; correct? A. Yes. Q. And then you're the third person who signed, listing yourself as a representative of the Oxygenated Fuels Association? A. Yes. Q. So you were present? A. Yes.
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Q. Does this appear to be a sign-in sheet that you were asked to sign at the time the meeting occurred? A. Yes. Q. And do you have any reason to believe that anyone who signed in didn't attend? A. No. Q. And that would include the individuals we just went over; is that correct? A. Insofar as I know.
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Q. Do you recall that the task force in its communications with the EPA took the position that MTBE was not a persistent chemical in ground water? A. That's essentially the position. Yes.
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Q. Do you recall that it was the MTBE's committee's position that MTBE was not a serious threat to ground water page 27
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
17 18 19 20 21 22 23 24 00179:01 02 03 04 05 06 07 08 09 10 in the meetings with the EPA? A. Yes, in the context of its not constituting a health or environmental hazard. Q. All right. Now, we've previously gone over a document in the form that the EPA apparently received it. I want to return to that exhibit. And I want to mark what may be an earlier draft of at least part of the document as an exhibit. This document that I'm about to mark is entitled Statement of MTBE Committee Submitted to EPA, dated February 27th, 1987. It was produced to us by Exxon in this form. And it bears your signature at the end, or at least what appears to be your signature.
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Q. And just so the record is clear, I provided you with an A version of which exhibit? A. 13. Q. So you have before you Exhibit 13 and another exhibit marked 13a; is that correct? A. I do. Q. 13a is new. Can you tell me if it appears to bear your signature at the end? A. That is not my signature. It was signed on my behalf. It is not my signature. Q. Does it look like your secretary's version of your signature? A. Probably. Q. Okay. Does this appear to be an earlier version of the documents submitted to the EPA since your secretary signed it on your behalf and since the version submitted to the EPA appears to bear your signature, that is, Exhibit 13? A. Yes. Q. Now, in this Exhibit 13a, if you could turn to the conclusion. A. (Witness complies with request.) Q. It states, "The following discussion establishes -A. We're looking at 13 at this juncture? MR. THALER: No. 13a versus 13. THE WITNESS: Okay. MR. MILLER: Yes. BY MR. MILLER: Q. The following discussion establishes that there is no evidence that MTBE poses any significant risk of harm to health or the environment. Do you see that statement? A. I do. Q. And was that draft that we just went over prepared for the purpose of circulating it to members of the page 28
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
24 00182:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00183:01 02 03 04 05 06 07 08 09 10 11 12 13 committee? A. It was. Q. And it would have been sent to them; is that correct? A. Yes. Q. This particular version was produced by Exxon. Do you have any reason to believe they would not have received this draft version? A. No reason to believe. Q. All right. Now, if we go to the final version submitted to the EPA, Exhibit 13, it also has a conclusion? A. It does. Q. And does it contain that same quoted statement, that MTBE does not pose any significant risk of harm to the environment? A. It does. Q. So no one asked you to change that sentence; is that correct? A. Yes. Q. It goes on to state in the same paragraph, Sufficient data exists to reasonably determine or predict that manufacture, processing, distribution, use and disposal of MTBE will not have an adverse affect on health or the environment, and that testing is therefore not needed to develop such data. Do you see that quote in 13a, the draft? A. Yes. Q. And after you submitted it to members of the committee, did you make any change to that portion of the conclusion?
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A. It appears to read the same. No changes. Q. Okay. So the version you submitted to the EPA contained the same statement; correct? A. Yes. Q. In the conclusion you start out with, the following discussion establishes that there is no evidence, et cetera. Were you referring to the attachments? A. Yes. Q. And they were supplied by the committee? A. Yes. Q. Now, if we could turn to Exhibit 13b, please. This version --
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Q. This version has some of the attachments, apparently. Is that your understanding?
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13
A.
But this isn't the same page 29
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
14 15 16 17 18 19 20 21 22 23 24 00185:01 02 03 04 05 06 07 08 09 10 11 12 document. This is a transmittal of studies. It's not an earlier draft of 13 and 13a. Q. Okay. Let's just take it a step at a time then. Look at 13b, on the first page it's dated February 27, 1987; correct? A. Yes. Q. And at the bottom there's a signature. Is that your signature or is that your secretary's assistance? A. That is my secretary's assistance signature. Q. And does it appear therefore that this version of the document would have been generated by your office? A. Yes. Q. And then attached to it is entitled Comments of the MTBE on the Interagency Testing Committee's Recommendations Concerning MTBE dated February 27, 1987; correct? A. Yes.
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Q. What I'm trying to find out is if the attachments, the pages that follow the word comments of the MTBE Committee on the interagency testing committee's recommendations concerning MTBE within Exhibit 13b, whether or not the pages that follow that appear to have come from the committee. A. The answer to that is yes. Q. And if you could turn -you'll notice at the bottom of each page there's a numbering system. It begins with TX for Texaco because it was produced on their behalf. And then the number that I'm going to refer you to is page number 048941. Could you turn to that, please? A. (Witness complies with request.) Yes. Q. This document has two bullets or points that are made; correct? A. Yes. Q. And the second one states, MTBE/gasoline spill - excellent aerobic biodegradability? A. Yes. Q. Did that come from you, that statement or representation? A. No. Q. Is it your understanding it came from the committee? A. Yes. Q. Now, what does that mean, excellent aerobic biodegradability? A. It means, according to this statement, that MTBE degrades readily -Q. So it -A. -- under aerobic conditions. Q. Okay. So it wouldn't be a page 30
Case Clip(s) Detailed Report Tuesday, September 01, 2009, 8:18:52 PM
MTBE - Phase 3
21 22 23 24 00188:01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 00189:01 02 persistent chemical, it would be one that would break down? A. Yes. Q. And was it your understanding at the time that if a chemical was persistent, it would represent more of a threat to ground water than one that was readily biodegraded? A. Potentially. Q. Is it fair to say, sir, that the communications by the industry group that we've been calling the MTBE Committee, that you were the executive director of, in total assured the EPA that based on information available to industry, MTBE would not represent a significant threat to ground water? A. The reason I hesitate in that answer is I'm not sure what does industry mean again in that context. The members of the association? Q. Yes. A. Yes. Q. So, in terms of the total information that was provided through that committee, it was repr
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