MTBE: tonic that's hard to swallow.
"It is probably the number-one threat to the nation's water supply," said Gerson Smoger, a Dallas attorney and former chair of ATLA's Section on Toxic, Environmental, and Pharmaceutical Torts. "Right now most of the litigation is related to property damage, contaminated aquifers, and contaminated wells."
The problem with methyl tertiary butyl ether (MTBE) is that small quantities of it--as little as three drops in an Olympic-sized swimming pool of drinking water --will render the water unfit for consumption. The turpentine-like taste and odor alone are said to be enough to make MTBE-contaminated water unappetizing, and at least one study conducted in Europe has shown that high levels of it can cause cancer in laboratory animals. The EPA characterizes it as a "potential human carcinogen."
In an interview on CBS's 60 Minutes program in January, Robert Perciasepe, assistant administrator of the EPA's Office of Air and Radiation, acknowledged that the agency has faltered in its duty to protect the public water supply. He said the EPA has never required local municipalities to test groundwater for the presence of MTBE even though the agency has known at least since 1987 that the substance was getting into drinking water and that it might make people sick.
Perciasepe said an EPA standard that would require groundwater testing for the contaminant is pending. In March, the Clinton administration announced a plan to ban the additive over the next three years.
The history of MTBE use in the United States is relatively short but rife with remarkable twists and missteps.
In 1979, oil companies began mixing it into gasoline to boost octane and replace lead. Its perceived value increased when the companies found that the compound --known as an oxygenate because it adds oxygen to fuel--arguably helps gasoline burn cleaner and, therefore, reduces ozone pollution and other toxins that are released into the air.
MTBE's darling status reached its zenith when Congress passed the Clean Air Act Amendments of 1990. The law mandated that oxygenates, such as MTBE and ethanol, be blended into fuel sold in the most polluted areas of the country, as designated by the EPA. Eager to improve air quality by using these oxygenates, increasing numbers of municipalities and states with less severe pollution problems voluntarily opted to use the reformulated gasoline.
This, according to Washington, D.C., plaintiff attorney Lewis Saul, is the story of how a "national disaster" came into being. Saul has filed class actions on behalf of property owners in Maine and New York and serves as class counsel in a North Carolina case. Other lawyers have filed suits in California and Connecticut and more are expected throughout the United States.
Saul said the EPA and various state governments knew enough about the basic facts of MTBE to send up warning flares to the public. But he said the real culprits are the oil companies, which "zealously promoted and marketed MTBE to protect their bottom lines." The compound is less expensive to make and transport than other oxygenates, Saul said.
MTBE's chemical properties, which critics contend any scientist would recognize as potentially dangerous to drinking water, are at the root of what makes it so threatening. Its water solubility--its ability to mix easily with and move rapidly in water--practically guarantees that once it hits the soil, it will invade the water table and, then, drinking water sources.
Saul said a gallon of gasoline contains more than a soda can full of pure MTBE. "So when you fill up your car and you spill a couple of drops like everybody does after they take the hose out of their automobile, multiply that times a thousand customers, times a hundred thousand gas stations per day, and those drops go into the ground and the rain comes down and mixes with it, and it's all over."
In one of Saul's lawsuits, a vehicle overturned in front of the plaintiff's rural home in Maine, spilling gasoline on the road. "Sure enough, a few weeks or months later, his [private water] well had MTBE in it. It had to be shut down, and they brought in public water," Saul said.
If droplets from a gas pump hose or a spill from a car accident can pose substantial hazards, then the danger created by a leaking underground storage tank becomes obvious, Saul said.
California, which has decided to phase out MTBE in gasoline by the end of 2002, has suffered several of the most serious and costly water contamination incidents in the nation. In recent years, water wells have been shut down in Santa Monica, and a $22 million settlement has been paid by the oil companies.
In South Lake Tahoe, attorney Vic Sher has filed suit against 12 gas stations, 12 oil companies, and MTBE manufacturers on behalf of that city, where MTBE showed up in water wells. Sher is basing the suit on common law theories of liability, including defective product, nuisance, and trespass.
"This is a highly complex and very difficult area of the law because you're dealing with a contaminant where you don't know how long you're going to be facing it, and you don't know the extent of the impact," Sher said. "If you're a private property owner, you don't know how long you're going to have it in your well. Therefore, you can't tell how much it's going to cost to remove it or what the impact on your property is going to be."
Sher added that any litigator taking on an MTBE contamination case should be aware of the financial costs involved, primarily because plaintiffs will have to rely heavily on expert testimony.
"You've got extraordinarily complex issues of hydrogeology, toxicology, and water transport, and then you've got the technical sides of remediation and treatment issues," Sher said. "These are cases that cost big bucks to prepare for trial. One of the things that's important for a practitioner to recognize when a case like this walks in the door is that this is not going to be a cookie-cutter, simple tort case. It will be hard fought."
Stamford, Connecticut, plaintiff attorneys Scott Garrett and Gina Von Oehsen couldn't agree more, but they remain hopeful that their case is a winner. They are seeking class certification for a cluster of Wilton, Connecticut, plaintiffs whose private water wells contain MTBE. Their suit targets Shell Oil Co. and a local gas station whose underground storage tanks have had documented leaks of contaminants, including MTBE, since 1990. They allege the defendants knew about and failed to stop the leaks and then withheld the information from the public.
"The real concern by the residents in our case is that Shell Oil Co. and the Connecticut Department of Environmental Protection had information about the likelihood and impact of MTBE in the groundwater long before they notified the residents," Garrett said. "Hundreds of citizens were using water with elevated levels of MTBE in it without having the option" of seeking another water source.
Garrett and Von Oehsen's suit is one of the few that seeks compensation for medical problems associated with MTBE contamination in addition to property damages. Because so little scientific information is available on the compound's health effects, proving these damages will be tough, say many litigators involved in these cases.
Saul said, "Do I see that people will be able to prove health effects from MTBE at some time? Having gone through the breast implant debacle, you can only hope. When you're talking about exposure to toxic chemicals with all the chemicals in the environment, they're always tough cases unless you have a specific single-substance exposure with a cluster of the same effects."
Saul, whose cases focus only on property damages, said the first line of attack is to get MTBE out of the stream of commerce. "Let's get the drinking water tested, then let's get the MTBE that's found out of the water. By rights, the oil companies should be required to pay for that. Then, let's see what medical researchers find to be the health effects."
Saul's lawsuits ask for three things: testing of wells where MTBE groundwater contamination has been found; remediation and treatment of the water supplies in those localities; and compensation for lost property values, replacement water, and other damages from the responsible oil companies and manufacturers.
Sher, who primarily represents public water suppliers, is also focusing on first getting MTBE out of the groundwater.
"Whatever the debate about the health effects might be," said Sher, "it tastes and smells foul in the water at extremely low levels. So whether you're a commercial supplier or a private user of water, that water's no longer potable if it's got very low levels of MTBE in it."
Plaintiff lawyers said that anyone who agrees to represent a resident or water supplier affected by MTBE can expect a few typical responses from defendant oil companies: The company officials are surprised by the extent of the problem, and Congress and the EPA essentially made them put the substance into the gasoline to meet the Clean Air Act requirements.
Neither of those claims is true, Saul said, noting the EPA's documented acknowledgment of groundwater hazards going back more than a decade and scientific studies presented to the American Petroleum Institute and others on MTBE's dangers as its usage increased.
Plaintiff lawyers dismiss as preposterous the government-made-us-do-it argument. The Clean Air Act Amendments do require that oxygenated fuel be blended into gasoline, but MTBE is only one of several oxygenates that would work. Ethanol--the most obvious alternative--is expensive to transport to areas outside the Midwest and costs more to produce than MTBE.
Saul said he suspects the oil companies can find good alternatives with little effort but that they are dragging their feet because of the cost- effectiveness of producing and transporting MTBE.
As increased awareness of MTBE's groundwater hazards has spread, some states have already banned the product from gasoline. The Clinton administration's proposal to phase it out nationwide would eliminate the need for state-by-state battles over the additive's perceived value, but congressional approval of that plan is required and, by no means, certain.
In the end, it may be a case of too little, too late, according to Sher.
"[A ban] might reduce future additions of MTBE to the planet, but it doesn't do anything for what has already gotten into the groundwater," Sher said. "It's difficult to understand what the real defense is here."
The Exchange at ATLA offers a "hot topic" information packet on MTBE. To order one at cost, contact Penny Kinnard by telephone at (800) 424-2725, ext. 445; by fax at (202) 337-0977; or by e-mail at email@example.com.
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|Date:||Apr 1, 2000|
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