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NH: Exxon Mobil ignored warnings on gas additive

Lynne Tuohy, Associated Press

CONCORD, N.H. (AP) -- Jurors in New Hampshire's groundwater contamination case against Exxon Mobil were asked to decide whether the state is seeking a scapegoat or whether the company was protecting its profits, not the environment, by adding MTBE to its gasoline.

The marathon trial neared its end Monday with closing arguments.

Jessica Grant, an attorney arguing for the state, said internal Exxon Mobil memos dating back to 1984 warned of the ethical and environmental consequences of MTBE, an additive designed to reduce smog. The state wants jurors to hold Exxon Mobil liable to the tune of $240 million to monitor and clean up wells and public water systems contaminated by the chemical.

Lawyers for Exxon Mobil countered that MTBE — methyl tertiary butyl ether — was used to comply with federal Clean Air Act requirements. They also blame any lingering contamination on third parties not named in the state's decade-old lawsuit.

"What is the case really all about?" Exxon Mobile Corp. attorney James Quinn asked jurors. "It's about hind-sighting, scapegoating, second-guessing and muddling."

Jurors were expected to begin deliberations Tuesday after being instructed on the law. They'll be asked to determine whether MTBE, which was banned in New Hampshire in 2007, is a defective product and whether Exxon Mobil failed to warn its distributors and vendors about the characteristics and care needed in handling gasoline containing it. MTBE, experts on both sides agreed, travels farther and faster in groundwater and contaminates larger volumes of water than gasoline without the additive.

If jurors find Exxon Mobil is liable for damages, they must then determine the oil giant's market share of all gasoline sold in New Hampshire between 1988 and 2005. The state contends it was 30 percent; Exxon Mobil says it's closer to 6 percent.

Lawyers for Irving, Texas-based Exxon Mobil claim state environmental officials knew or should have known about the contaminating qualities of MTBE. The judge refused to allow them to use a picture of two ostriches with their heads in the sand as a graphic during closing arguments.

Exxon Mobil is the sole remaining defendant of the 26 the state sued in 2003. Citgo was a co-defendant when the trial began, but it began settlement negotiations with the state and withdrew from the trial. Citgo ultimately settled for $16 million — bringing the total the state has collected in MTBE settlement money to $136 million.

The trial began Jan. 14 and testimony ended March 27, making it the longest in state history. The verdict won't be the final word. Both sides have indicated they are laying the groundwork for an appeal.