State's MTBE contamination suit vs. oil and chemical companies survives motion to dismiss.


Byline: Eric T. Berkman

The state could bring suit seeking to hold accountable several dozen oil and chemical companies for contaminating Rhode Island waters with the hazardous gasoline additive methyl tertiary butyl ether, otherwise known as MTBE, a U.S. District Court judge has decided.

The defendant companies argued that the suit should be dismissed because the state could not definitively apportion the harm caused by a fungible substance between the alleged polluters, and thus it was impossible for the state to adequately plead causation.

Judge William E. Smith disagreed.

"[T]he relevant holdings of the state's supreme court suggest that to shield tortfeasors from liability because they had the foresight (or luck) to pollute without demarcation would be contrary to Rhode Island law and policy," Smith wrote in denying in part the defendants' motion to dismiss.

Accordingly, he said, the state should be held "to the traditional burdens on every element of its tort claims except for that of apportioning harm.The latter will be Defendants to bear, if the State does its part. The Court leaves for another day a decision on what happens if Defendants are unable to find a reasonable basis upon which to divvy damages."

Smith did, however, dismiss a claim by the state brought under the public trust doctrine, finding that the doctrine does not as of yet include groundwater.

Neil F.X. Kelly of the Attorney General's Office represented the state. John A. Tarantino of Providence, one of the lead attorneys for the defendants, declined to comment.

The 36-page decision is State of Rhode Island v. Atlantic Richfield Company, et al., Lawyers Weekly No. 52-111-18. The full text of the ruling can be found here.

Water contamination

Oil companies began adding small amounts of MTBE, a synthetic fuel additive that increases gasoline's oxygen content, to gasoline in the late 1970s.

In the 1990s, after Congress required as a smog-reduction measure a higher oxygen content for gasoline sold in certain markets, oil companies began using bigger amounts of MTBE because it was the least expensive oxygenate to manufacture and thus the most profitable.

In the 2000s, evidence emerged that MTBE had a highly negative effect on the environment. In fact, it turned out to be the most hazardous component of the gasoline to which it was added, since it was more water soluble and thus resisted biodegradation better than other gasoline components.

MTBE was also recognized as a...

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