N.H. wins $236 million MtBE case vs. Exxon

CONCORD, N.H. - Attorney General Joseph A. Foster announced today that the New Hampshire Supreme Court affirmed the lower court decisions in the case of State v. Exxon, et al., which resulted in a $236 million verdict in favor of the State. The case involved widespread contamination by Exxon of the state's groundwater by the gasoline additive MtBE. The verdict comes after a decade of litigation by the Office of the Attorney General, with assistance from outside counsel and with invaluable technical contributions from the New Hampshire Department of Environmental Services ("NHDES"). The Court also determined that the State was entitled to prejudgment interest which will be tens of millions of dollars. This will be in addition to the $90 million that the State previously received in settlements from several other gasoline suppliers who settled with the State prior to trial. The Court further ruled that the verdict money would not be subject to a trust.

MTBE gives water an unpleasant taste at very low concentrations, and thus can render large quantities of groundwater non-potable. MTBE is often introduced into water-supply aquifers by leaking underground storage tanks at gasoline stations or by gasoline containing MtBE spilled onto the ground. The higher water solubility and persistence of MtBE cause it to travel faster and farther than many other components of gasoline when released into an aquifer.

It was used in the 1990s and later as an anti-knock ingredient that could oxygenate and raise the octane levels of gasoline. Its use began being phased out in May 2006.

The N.H. Department of Justice sued gasoline manufacturers in 2003, seeking damages for their role in statewide MtBE contamination.

The DES tested wells for MtBE in Londonderry, Pelham, Derry and Windham last year, and earlier this year began testing other communities in Southern New Hampshire.

MtBE, or methyl tertiary butyl ether, may cause stomach irritation and liver and kidney damage, according the DES. It's also considered it a possible human carcinogen.

In today's announcement it was noted that the New Hampshire litigation has spanned five attorneys general and four governors, included over nine million pages of discovery, and culminated in a three month trial. The State, through the Governor's Office and the Legislature will now begin the process of determining how to use this money to best benefit the people of New Hampshire.

Attorney General Joseph Foster stated: "This is the most significant environmental victory in the history of the State. This historic decision sends a clear message that New Hampshire will not permit polluters to endanger the health of its citizens and destroy its natural resources. The vigilance of the State's attorneys in bringing this suit as well as the State agency employees who spent thousands of hours providing testimony and responding to discovery, the leadership of the executive branch, and the support of the Legislature are all testaments to New Hampshire's determination to ensure that justice is done."

Thomas Burack, Commissioner of the NHDES, stated: "This is the result we had hoped for. It provides essential resources in recognition of the jury's findings that our state's groundwater and drinking water is contaminated with MtBE, that the contamination needs to be cleaned up, and that safe drinking water supplies need to be ensured. With this decision, New Hampshire is a vital step closer to cleaner groundwater and healthier drinking water."

MtBE presence has been widely detected in Maine as well with a 2005 study indicating 16 water supplies and 58,000 people affected.

The State of New Hampshire expects that Exxon will appeal the ruling to the U.S. Supreme Court.