Opening forebodes long, contentious trial over fuel additive

By Lynne Tuohy

CONCORD, N.H. (AP) — Lawyers for the state of New Hampshire and petroleum giants ExxonMobil and Citgo mocked their opponents’ evidence and disparaged their witnesses for a second day Tuesday as they prepared jurors for a long, contentious trial over the gasoline additive MTBE.

The state is seeking more than $700 million to monitor drinking water wells and clean up high-risk sites where MTBE contaminated groundwater. The trial, which began Monday, is expected to last four months and involve hundreds of witnesses and thousands of exhibits.

Opening statements made it clear that jurors will be presented wildly divergent testimony and evidence about the two decades — ending in 2006 — when gasoline sold in the state contained MTBE.

They were shown excerpts of scientific studies and politicians’ letters, and given history lessons about how MTBE became the gas additive of choice and how the federal Clean Air Act evolved in response to mounting air pollution problems nationwide. They have heard about reformulated gas (RFG) and maximum contamination levels (MCLs), which are based on parts per billion (ppb).

“No question there are some very technical and complicated parts of this trial,” Judge Peter Fauver told jurors on Tuesday.

The state claims gasoline containing MTBE was a defective product and that the oil companies had a duty to warn state officials about its special properties and ability to contaminate groundwater in greater levels than traditional gasoline.

“The product wasn’t defective,” Citgo attorney Nathan Eimer told jurors. “It did exactly what it was supposed to do. It ran our cars. It cleaned the air. It eliminated smog.”

Attorney Jessica Grant said MTBE “travels farther, faster and is resistant to biodegradation.”

Lawyers for the oil companies say the state’s estimate that more than 40,000 wells in New Hampshire are contaminated is inflated and designed to generate big damages in the case.

“You’re going to see how incredible their assumptions are, how divorced from reality they are,” ExxonMobil lawyer David Lender told jurors.

Lender stressed that it is not a personal injury case: “There’s no evidence anyone’s ever gotten sick or gotten cancer from drinking water that has MTBE in it.”

New Hampshire banned the use of MTBE — methyl tertiary butyl ether — in 2007.

Eimer said Citgo initially opted to use ethanol as an additive to reduce lead content and oxygenate gasoline so it would burn cleaner — two mandates issued by the federal Environmental Protection Agency.

When Citgo couldn’t get the volume of ethanol it needed, and in the face of consumer anger that ethanol was damaging car engines, the company switched to MTBE in 1986, Eimer said.

Lawyers for the oil companies say the state is looking for a scapegoat. The state says it wants to hold oil companies responsible for their product.

The state court case is so complex that it is being held in federal court so it won’t monopolize a trial courtroom at Merrimack Superior Court for months. The lawsuit — filed in 2003 — is the first brought by a state over MTBE contamination to reach trial.

Lawyers for the state on Tuesday began questioning their first witness, hydrologist Graham Fogg.