N.H. to get $235 million-plus to fight gasoline additive MTBE, other pollutants

  • Map of MTBEs found in private drinking wells through 2006. Source: N.H. Department of Environmental Services Courtesy—

  • Associated Press

Monitor staff
Published: 5/16/2016 12:30:13 PM

A Supreme Court decision that will give New Hampshire a quarter of a billion dollars to fix and prevent water pollution due to the gasoline additive MTBE could help the growing struggle with other pollutants such as PFOA.

That’s one likely result from Monday’s decision by the U.S. Supreme Court not to consider ExxonMobil’s appeal of a 2013 jury verdict that the oil giant must pay New Hampshire $236 million plus interest to deal with widespread pollution of wells.

“In many ways, this is a watershed moment in New Hampshire environmental history,” said Thomas Burack, commissioner of New Hampshire Department of Environmental Services, which will handle the cleanup.

The decision ends a fight that began more than a decade ago, when the extent of water pollution by MTBE became known. The chemical, called methyl tertiary butyl ether, was used for years to boost octane in gasoline. New Hampshire banned its use in 2007 because of studies linking it to some types of cancer in people, but MTBE is long-lasting and is still found in groundwater throughout the state. A recent U.S. Geological Survey study of Southeastern New Hampshire found it in roughly 10 percent of wells that were randomly sampled.

New Hampshire was a leader in suing oil companies, seeking money to help tackle the problem. Almost two dozen companies settled before the issue went to trial, paying $90 million to the state, 10 percent of which went into the general fund and the rest to the state’s MTBE Remediation Bureau. Among the projects paid for by that fund are removing a number old underground gas storage tanks that are leaking or might leak, as well as a $3 million expansion of municipal water along Route 28 in Derry to a number of residential and commercial properties whose wells were contaminated.

But ExxonMobil wouldn’t settle with New Hampshire and took the case to court, leading to a 2013 verdict and then almost three years of appeals.

In the past year, MTBE has been knocked from the headlines by a couple of related pollutants known as PFOA, a chemical linked to the manufacture of Teflon, and PFOS, a chemical found in fire-fighting foam. And while the MTBE settlement has to be spent on that problem, at least initially, it seems likely that these efforts can help the newer problem.

Consider the tests needed to determine whether a given well is polluted by MTBE or PFOA.

“They are separate tests,” said Gary Lynn, administrator of the MTBE Remediation Bureau. “However, a lot of the costs and effort is the labor, to collect samples, ship them to labs and respond when results come in. We have created some efficiencies by combining both types of tests when going to a site. You have to fill up two different sample bottles and ship them to different labs, but travel time and labor is reduced.”

And such overlap is to be expected.

“Co-located or overlapping contamination is common to find; MTBE is so extensive,” Lynn said.

Similarly, remediation can be combined if it involves bypassing the polluted water.

“If you want to extend public water supplies, that’s a remedy applicable to all (pollution),” Burack said.

The U.S. Supreme Court decision not to accept the appeal means that the state will ask the New Hampshire Supreme Court to enforce the original ruling against ExxonMobil, said Senior Assistant Attorney General K. Allen Brooks.

The case will likely be sent back to Merrimack County Superior Court, where accumulated interest on the settlement will be calculated. The amount that New Hampshire receives will depend on that calculation as well as a reckoning of costs and attorneys’ fees, which will run into the millions of dollars.

The case has stretched on for many years, covering five attorneys general and four governors. The case and trial included more than 9 million pages, according to the state attorney general’s office.

Under a state law signed a few weeks ago by Gov. Maggie Hassan after it was passed with bipartisan support, 10 percent of the award will go to the general fund, while the rest – well over $200 million – will go to the New Hampshire Drinking Water and Groundwater Trust Fund. It will be administered by the MTBE Remediation Bureau, with oversight provided by an advisory committee, consisting of legislators, state staffers and private citizens, as outlined in the law.

“This decision upholds what we previously described as the most significant environmental victory in the history of the state,” Attorney General Joe Foster said.

(David Brooks can be reached at 369-3313, dbrooks@cmonitor.com or on Twitter @GraniteGeek.)




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