CONCORD, N.H. -- Jurors in New Hampshire’s groundwater contamination case against Exxon Mobil were asked to decide whether the state is seeking a scapegoat or the oil company was protecting its profits, not the environment, when it added MTBE to its gasoline.
The marathon trial neared its end Monday with closing arguments. Each side spent time bashing their opponents’ expert witnesses, accusing each other of exaggeration and painting different pictures of the extent of MTBE contamination in New Hampshire’s drinking water.
Attorney Jessica Grant for the state said Exxon Mobil should pay $236 million to offset the state’s cost to monitor and treat wells contaminated with MTBE. She said the oil giant ignored its own internal memos dating back to 1984 that raised ethical and environmental concerns about MTBE’s ability to contaminate faster and further than non-treated gasoline.
Lawyers for Exxon Mobil countered that the state is seeking big bucks from a company that experienced minimal spills at its own New Hampshire sites and cleaned those years ago. They argued that Exxon Mobil used MTBE to comply with federal Clean Air Act standards.
"This is a case about decisions made by the government over 40 years ago," said Exxon Mobil attorney James Quinn. "The government told Exxon Mobil to get the lead out and we did. They told us to use oxygenates and we did. ... What is the case really all about? It’s about hind-sighting, scapegoating, second-guessing and muddling."
Jurors are to begin deliberations Tuesday.
They will be asked to find whether Exxon Mobil was negligent in adding MTBE to its gasoline, whether the MTBE gasoline was unreasonably dangerous or harmful and whether the oil giant failed to warn about MTBE gasoline’s ability to contaminate groundwater to a far greater degree than gasoline without the additive. If they unanimously agree on any factor, they will move on to consider what damages, if any, Exxon Mobil should pay.
Lawyers for Exxon Mobil argue that more than 300 other non-named defendants -- from junk yard owners to small gas station owners -- are liable for much of the contamination.
The corporation is the sole remaining defendant of the 26 the state sued in 2003. Citgo was a co-defendant when the trial began, but went into settlement negotiations with the state and ultimately settled for $16 million. That brought the total the state has collected in MTBE settlement money to $136 million.
The trial began Jan. 14; Testimony ended March 27. And although the trial is the longest in New Hampshire history, the verdict won’t be the final word. Both sides have indicated they are laying the groundwork for an appeal.
Grant told jurors Exxon Mobil paid two of its witnesses $7 million just to "take shots" at the state’s key witness -- hydro-geologist Graham Fogg -- and neither of them tested a single well in New Hampshire.
"As you know, this is a products liability case about the 2.7 billion gallons of MTBE gasoline Exxon supplied and a case about their negligence in failing to pay attention to a study they did about not using MTBE," Grant said.
Grant said Exxon Mobil put MTBE in gasoline five years before the government mandate in 1990 that the company use one of seven oxygenators available, including ethanol. She argued Exxon’s decision to keep using MTBE -- even in the face of growing evidence of environmental liabilities -- was motivated by profit.
Grant told jurors New Hampshire has 600 known sites with MTBE contamination -- 228 of them considered high risk to drinking water.
In wrapping up his arguments, Exxon Mobil attorney David Lender accused the state of going to great lengths to "manufacture a huge number for this case" in terms of damages sought.
"If MTBE is really as big a problem as the state says, why is this trial the first time you’re hearing about it?" he asked.