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New Hampshire’s Cleanup Funds Are Lacking, ExxonMobil Jury Told

New Hampshire doesn’t have enough money to clean up spills of a gasoline additive that have contaminated the water supply, a state environmental official testified at a trial seeking damages from ExxonMobil Corp. for the pollution.

“These funds have never been adequate to do all the work that’s out there,” Michael Wimsatt, director of the Department of Environmental Service’s Waste Management Division, told jurors today in the state-court trial in Concord. “We have to decide which work is most important.”

It was the first time the jury heard about two petroleum clean-up funds that the judge had previously ruled couldn’t be mentioned in testimony. The funds have collected about $213 million through a gasoline import tax since their creation in 1988.

New Hampshire might be seeking more than $200 million from ExxonMobil, the last defendant on trial in the $816 million lawsuit filed in 2003. This is one of scores of cases since 2000 over the additive methyl tertiary butyl ether, or MTBE, against oil refiners, fuel distributors and chemical makers.

ExxonMobil lost a bid for a mistrial last week over its claim that a state witness’s remark in front of the jury violated Judge Peter Fauver’s previous order not to talk about the cleanup funds for contaminated sites. Fauver issued a ruling Feb. 8 that redefined what could be said about the funds and ordered the state to present Wimsatt, who serves on the disbursement board for the funds.

Defense Attorneys

On cross-examination, defense attorneys tried to show that MTBE remediation isn’t as expensive as environmental officials have suggested and that contamination incidents are declining.

“Can you tell the jury if any new sites were opened last year?” asked Bill Stack, an attorney for ExxonMobil.

“I don’t know that number,” Wimsatt replied. “There was certainly work that we did on these sites.”

Following Wimsatt’s testimony, hydrogeology expert Gary Beckett returned to the stand. He testified that 228 MTBE sites have been identified as needing additional screening, at a cost of $85,000 per site, and that 85 of those would require more extensive work.

ExxonMobil, based in Irving, Texas, has argued in court that it isn’t liable because it added MTBE to gasoline to comply with federal regulations, which pre-empt state law. Oil companies added MTBE to make gasoline burn more thoroughly in order to reduce air pollution, as required under the 1990 Clean Air Act.

Highly Soluble

MTBE is highly soluble in water and thus can be carried great distances from where it leaks. New Hampshire banned the additive as of January 2007.

The state is seeking monetary damages in part based on ExxonMobil’s market share of gasoline sales in New Hampshire during the period covered by the lawsuit.

ExxonMobil’s share was about 30 percent, the state said. Based on an estimated cost of $816 million to test for, monitor and clean up the groundwater, New Hampshire could be seeking about $245 million from the company.

The trial began on Jan. 14. New Hampshire’s lawyers have said they hope to conclude their case by Feb. 21. ExxonMobil would then begin presenting its case.

The case is New Hampshire v. Hess Corp., 03-C-0550, New Hampshire Superior Court, Merrimack County (Concord).

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