East Hampton Town Trustees Urged to Sue: Want oil companies to pay for M.T.B.E. cleanup at 12 sites here

By Russell Drumm

A lawyer from New York City attended the Aug. 24 meeting of the East Hampton Town Trustees to encourage them to follow the lead of Southampton's trustees and East Hampton's municipal government in suing more than 70 manufacturers of petroleum products, their subsidiaries, and distributors in order to cover the cost of cleaning up toxic spills.

Marc Bern, a lawyer with the firm of Napoli, Kaiser, and Bern, told the board's nine members that because their 17th-century "charter" - the Dongan Patent - makes them owners of common land on behalf of the public, they have the right to seek part of "hundreds of millions of dollars" in damages from gas companies and use the money to remove the gasoline additive methyl tertiary butyl ether, or M.T.B.E., from 12 known spill sites in East Hampton Town.

At least one of the sites directly involves the common land and surface waters that the trustees oversee, the spill site next to Three Mile Harbor. "And then you have the incidental M.T.B.E. spills, which affect either the primary or secondary watershed of our surface waters," said Larry Penny, East Hampton's director of natural resources.

Referring to trustee jurisdiction, and noting that the Southold trustees consider groundwater part of their protectorate, he added that surface water and groundwater "are all part of the same system."

The suit that Mr. Bern proposed trustees have his firm file on their behalf argues that recovering spilled M.T.B.E. is necessary in order to protect the single-source aquifer that provides the South Fork with its drinking water. The Environmental Protection Agency designated the Long Island aquifer system as a "sole source" aquifer in 1978.

Mr. Bern said his firm had filed or would soon file individual suits on behalf of 15 individuals and municipalities. All the suits charge, in part, that petroleum manufacturers and distributors knew that M.T.B.E. would contaminate groundwater, that they knew that no adequate toxicity studies had been made of the chemical, and that they misled the E.P.A. about its hazards.

Someone would have to pay for the M.T.B.E. cleanups, Mr. Bern observed, and his firm was aiming to put the responsibility on the gasoline companies that added the compound to their products beginning in 1990 to comply with federal air-quality dictates.

M.T.B.E. oxygenates fuel. It increases octane and reduces exhaust emissions, but is believed to be a carcinogen. It is highly "water soluble," which means it binds to groundwater readily, and because of this it is difficult to recover. According to Ralph Schiano, the former director of the South Fork Groundwater Task Force, only 10 gallons of M.T.B.E. can contaminate 50 million gallons of water. As of January, gas producers were required to replace the compound with ethanol.

"It costs the trustees nothing. It's a win-win for the trustees," Mr. Bern said. He recommend that the board act quickly because of efforts in Congress to indemnify gasoline companies with what is being called "safe harbor" legislation prohibiting such lawsuits. John Courtney, an attorney for the trustees, told them he saw no reason to prevent Mr. Bern from proceeding.

East Hampton and Southampton Towns filed suit through Mr. Bern's firm two years ago. East Hampton's suit will be amended to include the trustees, assuming they agree to take part. A decision is expected at the trustees' meeting on Tuesday night.

So far, the E.P.A. has made $1 million available to New York State to clean up M.T.B.E. spills. Last year, the state attorney general's office recouped over $1 million from the ExxonMobil company to reimburse the State Department of Environmental Conservation for its cleanup of a gas spill at the Harbor Heights Service Station on Hampton Street in Sag Harbor. The spill was discovered in 1990.

Other lawsuits involving M.T.B.E. contamination have been filed by a group of water-well owners in 2000 and by the Suffolk County Legislature against gasoline manufacturers and distributors last year.

The State Department of Health has set the tolerable level of M.T.B.E. in drinking water at 10 parts per billion. The concentration of the chemical on the surface of the water table at five of East Hampton's spill sites ranges from 1,182 p.p.b. to 11,000 p.p.b.

The only public wells in the county to be closed because of M.T.B.E. contamination are on South Fulton and West Lake Drives in Montauk. The wells were closed three years ago.

The spills alleged in East Hampton Town's suit include one on Hampton and Liberty Streets in Sag Harbor and, in East Hampton, spills on Three Mile Harbor Road, Pantigo Road, and North Main Street, as well as Embassy Street in Montauk. Two others, although not listed as M.T.B.E. spills, "necessarily involved M.T.B.E.-laden gasoline" and are at the Getty Station at 2 Montauk Highway and at the Citgo Service Station at 150 North Highway, both in East Hampton.

According to the D.E.C., M.T.B.E. has been found in at least 126 public wells on Long Island. And more than 300 gasoline spills have been mapped in Suffolk County, as have 1,054 gasoline releases from underground storage tanks.

M.T.B.E. has also been linked to leaking home-heating-oil tanks. Heating oil can be contaminated with M.T.B.E. at refineries.