Toxic leaks setting off new wave of lawsuits

Case in Harford County among scores nationwide

Gas additive MTBE in the water

July 01, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Just as it has seeped into private wells and water supplies across the country, the gasoline additive MTBE is beginning to saturate the court system.

Hundreds of lawsuits alleging contamination from methyl tertiary butyl ether - the toxic substance recently detected in the drinking water of some private wells in Harford County's Fallston area - have erupted nationwide in recent years. Many more are expected, as water contamination lawsuits are considered by many lawyers to be an expanding area of major litigation.

Yesterday, a Fallston-area couple filed a lawsuit in Harford County Circuit Court, claiming a nearby Exxon station contaminated their well water. The complaint seeks medical monitoring and unspecified damages from Exxon Mobil Corp.

Lawyer Marshall N. Perkins said the firm would likely seek class action status to cover other Fallston-area residents whose wells have been tainted. A corporate spokeswoman declined comment on the suit, but stressed that Exxon Mobil is working with government officials to determine the extent and sources of the problem, and is helping residents.

Last weekend, the Law Offices of Peter G. Angelos, which specializes in class action and complex litigation - and has succeeded in major asbestos and tobacco cases - took out a newspaper advertisement that invited residents from the Fallston area to contact them.

"We have been contacted, we have been retained, by people in the area," said Mary Koch, a lawyer at the Baltimore firm. She said a "fair number" of homeowners responded quickly.

And at least two Baltimore law firms are considering representing water suppliers and municipalities in Maryland, working with attorneys from other states who have succeeded in settlements in MTBE cases.

"We have identified potential trouble spots all over the state," said Nicole Schultheis, one of the Baltimore attorneys. "We have established relationships with a couple of water suppliers, none of which are willing to come forward at this time."

Lawsuits alleging MTBE contamination have been filed from California to Florida, some on behalf of individuals and others on behalf of public water suppliers and governments.

The stakes are high.

A contamination case brought by Santa Monica, Calif., recently resulted in a settlement expected to top $300 million, including a filtration system, said Scott Summy, one of the lawyers representing the city. A settlement in a case brought by South Lake Tahoe, Calif., topped $60 million.

Though other lawyers doubt MTBE is a lawsuit gold mine, Summy says the additive has the potential to rival asbestos in terms of the magnitude of cases it generates.

"I think it is becoming that size of an issue, sure. More and more people are beginning to realize the prospects of being contaminated," said Summy, who is representing more than 150 cities, water suppliers and the like in MTBE cases.

MTBE has been added to gasoline since the late 1970s to help it burn more efficiently. But it became widely used after the passage of amendments to the Clean Air Act in 1990.

MTBE dissolves readily in water. Going with the flow, it has seeped into water supplies around the country.

At low levels, it taints water with a turpentine-like taste and odor.

The U.S. Environmental Protection Agency classifies MTBE as a "potential human carcinogen at high doses" based on tests in which laboratory rats and mice inhaled it. There is little scientific evidence of health effects in humans, but officials say they do not think it poses a risk when consumed at the low levels generally found in drinking water, though studies are under way. Nevertheless, at least 17 states, including California and New York, have banned it.

How big MTBE litigation will be across the country remains to be seen. Its future depends partly on a major federal energy bill before Congress. Last year, the bill failed because it included a provision, sought by oil companies and MTBE manufacturers, to shield them from some substantial legal claims.

It would have barred product liability suits against them dating to Sept. 5, 2003.

The current energy bill, with the same provision, is stalled in the Senate.

Last year, word that that industry-backed provision would be added to the energy bill led to a stampede to courthouses.

The result is that many mammoth cases are in early stages and nobody knows how many more are the wings.

Deep pockets

Lawsuits against the likes of Exxon Mobil and Lyondell Chemical Co. are attractive to plaintiffs' lawyers because they dangle the prospect of a return from deep-pocketed corporate giants for the law firms that can afford an up-front investment.

"Because it is a large corporation, you figure they have money," said Lisa Fairfax, who teaches business law at the University of Maryland School of Law.

Many lawyers consider MTBE lawsuits on behalf of large water suppliers potentially more lucrative than representation of homeowners.

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