Attorneys vying for venue in Shell, Exxon groundwater class action

Steve Korris Nov. 22, 2005, 10:11am

Christine Moody

Aaron Zigler

Oil companies tricked Congress into passing dangerous amendments to the Clean Air Act 15 years ago, according to attorney Christine Moody of the Korein Tillery firm.

Moody claims in a proposed class action suit that Shell Oil, Exxon and Mobil persuaded Congress to adopt a new recipe for gasoline although the oil companies knew an ingredient would contaminate groundwater.

The oil companies “demonstrated their willingness to use any means to place their economic interest above the health, property and well-being of the people of the United States,” Moody wrote in a Sept. 28 complaint.

Shell Oil and Exxon Mobil responded that the plaintiffs sought to replace national water quality standards with standards of their own devising.

For the moment the case rests at U.S. District Court in East St. Louis, but neither side wants it to remain there.

Korein Tillery has moved to remand to Madison County, where Moody filed it.

Shell Oil and Exxon Mobil have moved for transfer to a federal court in New York.

Moody sued the oil companies in the form of a fifth amended complaint to a four-year-old Madison County suit. She withdrew the plaintiffs and introduced new ones.

Shell Oil and Exxon Mobil immediately removed the case to federal court. They argued that new plaintiffs made a new case, requiring federal jurisdiction under the Class Action Fairness Act that Congress passed in February.

The case concerns methyl tertiary butyl ether, which the defendants produce at their refineries. Adding it to gasoline reduces pollution from automobile exhaust.

Moody wrote in her complaint that, “Unlike oil, which does not mix with water, MTBE mixes so well with water that it spreads its toxic plumes faster and farther than other chemical components contained in gasoline.”

When it contaminates groundwater, she wrote, “…its foul taste and odor may render the water virtually unusable and unfit for human consumption.”

Moody claims no personal injury to the plaintiffs. She seeks damages for reduced value of properties, and she wants defendants to pay to clean up the properties.

She also wants the defendants to pay for bottled water, temporary filter systems and permanent hookups to public and private water systems.

In the original suit, Edwardsville residents Frances Misukonis, Frank Provaznik and Dolores Provaznik named dozens of defendants. They proposed to represent everyone who owned property within 3,000 feet of an underground gasoline storage tank.

At its peak, the case involved a proposed national class action against 55 defendants.

This year, the plaintiffs settled claims against all defendants but Shell Oil and Exxon Mobil.

The settlement shrank the proposed class to owners of properties near Shell Oil and Exxon Mobil storage tanks. Misukonis and the Provazniks did not belong to that class.

Moody amended the complaint, replacing the original plaintiffs with Howard Graham and Rhea McMannis. Moody identified Graham as a St. Clair County resident and McMannis as a Madison County resident.

Moody proposed a plaintiff class for Illinois only.

The complaint listed Korein Tillery and the firm of Baron and Budd, in Dallas, as attorneys for the plaintiffs.

Shell Oil and Exxon Mobil filed notice of removal to federal court through their attorneys, John Galvin of St. Louis for Shell Oil and Robert Wagner of St. Louis for Exxon Mobil.

Galvin and Wagner wrote that McMannis was a proposed class representative in another MTBE case, England vs. Atlantic Richfield. They wrote that the defendants removed that case to federal court, which dismissed McMannis for lack of standing.

The attorneys wrote that neither Graham nor McMannis claimed that MTBE contaminated their private wells.

Galvin and Wagner argued for removal not only under the new class action law but also under the newer Energy Policy Act, which specifically authorizes removal of MTBE actions.

They also argued that Shell Oil and Exxon Mobil acted at the direction of Congress and the EPA when they blended MTBE into gasoline.

The Clean Air Act amendments of 1990 required certain amounts of oxygen in gasoline. And, Congress and EPA understood that refiners would meet the goal by adding MTBE, they wrote.

Congress required EPA to balance the need to reduce air pollution against other environmental impacts, they wrote.

After removing the case, Exxon Mobil requested a transfer to U.S. District Judge Shira Scheindlin in New York State.

The federal Judicial Panel on Multidistrict Litigation has assigned Scheindlin to about 80 cases, consolidated as “In Re Methyl Tertiary Butyl Ether Litigation.”

Plaintiff attorney Aaron Zigler of Korein Tillery then moved to remand. “Defendant’s counsel removed this litigation from its proper forum without any basis in the law,” he wrote.

He called removal “abuse of judicial process and utter disregard for the law of this Circuit.” He also called it vexatious.

On Nov. 21, Shell Oil and Exxon Mobil filed a joint memorandum in opposition to plaintiffs' motion to remand, claiming their "sole" argument is weak.

Plaintiffs are relying on the suit's originally-named defendants' decision not to remove in 2001, defendants argued.

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