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A decade later, massive civil case against oil companies ready to proceed

New Hampshire Union Leader

January 08. 2013 11:40PM

CONCORD - George W. Bush was in his first term, Facebook didn't exist and Barack Obama was still an Illinois state senator when the state of New Hampshire sued 22 oil and gas companies in late 2003, claiming their use of the gasoline additive MTBE caused groundwater contamination throughout the Granite State.

Then-Attorney General Peter Heed asked for a jury trial to determine if the companies should be required to pay for testing every public and private water supply, eliminate MTBE pollution where it is found, and monitor all water supplies for future contamination.

A decade later, the trial is about to get under way in Concord on Monday, but not in Superior Court as originally requested. The case has grown so large, involves so many attorneys, and is expected to take so much time, that it has been moved to Federal District Court in Concord, known as the Warren B. Rudman United States Courthouse.

"It's simply a matter of space," said William McGraw, chief clerk for Merrimack County Superior Court. "If we were to take a courtroom here and dedicate it to one single civil case for six months, we would not be able to get to the criminal cases, let alone the other civil cases."

The state of New Hampshire vs. Amerada Hess, et. al., will be tried as a Superior Court case; only the courtroom location has changed. The defendants attempted over the years to have the case transferred to a federal jurisdiction, but failed. They also tried to restrict their liability to contamination of public, but not private, water supplies. They lost that case as well.

Those two issues, along with countless motions and challenges, required rulings from the United States Court of Appeals in 2007 and the New Hampshire Supreme Court in 2011 before the stage was finally set for the Superior Court trial to begin.

All but two of the original 22 defendants (including Amerada Hess) either settled, had cases consolidated or dismissed, leaving ExxonMobil and Citgo to square off against the state of New Hampshire in a trial that could lead to a jury verdict as high as $770 million.

Awards already won

New Hampshire was one of several states that filed suit against gasoline suppliers, refiners and the manufacturers of MTBE in 2003. The additive was used in gasoline to boost octane levels and mitigate air pollution, but it was later discovered to pose significant health hazards as it leaked from underground storage tanks.

The state already has won judgments or settlements totaling $120 million, much of it coming in the latter part of 2012, as it became apparent the trial would take place.

Attorney General Michael Delaney announced settlements with Shell Oil and Sunoco in early November, totaling $35 million, but made no public announcements regarding subsequent settlements.

A right-to-know request from the New Hampshire Union Leader revealed that Irving Oil settled for $57 million on Nov. 19; Vitol for $2 million on Nov. 26; and ConocoPhillips for $10.5 million on Dec. 4.

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