The MTBE Story
What is MTBE?
MTBE is a chemical blended into gasoline by oil refiners. The oil companies started using MTBE in the early 1980s to boost octane in gasoline as the use of leaded gasoline was phased out. But in the 1990s, the use of MTBE skyrocketed after the 1990 Amendment to the Clean Air Act, which required the use of oxygenates in gasoline in certain areas of the country that did not meet air quality standards. Oil companies across the country decided to use MTBE. There were several alternatives, however. MTBE was never the only choice. The oil companies knew that adding MTBE to gasoline would cause environmental problems, but they chose it because it was cheap and readily available as a side-product of the refining process.
Why is MTBE a Problem?
There’s a widespread problem in this country of MTBE contamination. It takes very little contamination to cause a problem, and it’s expensive and difficult to clean up.
MTBE dissolves very easily in water, much more so than the other hazardous chemicals in gasoline: benzene, toluene, ethyl-benzene and xylene (BTEX). When MTBE comes in contact with water, it quickly dissolves and flows along with the water. And where the BTEX ingredients of gasoline will tend to stick to soil and stay put, MTBE doesn’t. It will flow right through the soil and search out water. This means that even a small spill of MTBE-containing gasoline can contaminate a nearby well. Because of its unique characteristics, MTBE contamination can be found wherever gasoline containing MTBE is stored.
To make matters worse, you can’t simply wait for MTBE to biodegrade into harmless substances. MTBE generally doesn’t biodegrade in the natural environment like the BTEX ingredients will. Instead of getting better over time, MTBE will just keep spreading, contaminating larger supplies of water.
And it’s not easy to clean up. Because it dissolves so completely in water, it is much harder and more expensive to get back out of groundwater than the BTEX chemicals. The oil companies’ own estimates say that adding MTBE to gasoline makes it five times more expensive to clean up.
But leaving even a little bit in the water can cause a problem for the people who drink it. It takes only a tiny bit of MTBE to give a bad taste and smell to the water. MTBE can make water smell and taste like turpentine. And just a few drops of MTBE are enough to contaminate an Olympic-size pool filled with purified water. That’s enough to make the water undrinkable, but taste and smell are not the only problem. The EPA says that MTBE causes cancer in animals and may cause cancer in humans, too.
The History of MTBE Litigation
In the late 1990s, continuing to fight the oil companies on behalf of a California environmental non-profit organization, Communities for a Better Environment, Scott Summy and his colleague Celeste Evangelisti uncovered internal oil company documents that showed that the oil companies knew in the early 1980s that MTBE dissolved easily and traveled quickly in groundwater, they knew leaking underground fuel tanks would release MTBE into the groundwater, and they knew it would be very difficult to clean MTBE out of the water supply.
In 2001, Scott Summy and Celeste Evangelisti received the “Attorneys of the Year” Award for Environmental Law from California Lawyer for their work on MTBE water contamination litigation.
Why Are Oil Companies Responsible?
The oil companies should pay for the mess we find ourselves in now. The oil companies knew what would happen, but they used MTBE anyway because it was cheaper and easier for them at the time.
Baron & Budd’s attorneys, on the forefront in investigating and pursuing cases against the oil companies for MTBE contamination, have learned through discovery that many of the oil companies knew full well by the early 1980s that MTBE was especially dangerous when it was released into the environment. They knew that it would take only a tiny amount of MTBE to contaminate an aquifer, and once the MTBE got into the groundwater, it would be difficult and expensive to get it back out. And they knew that MTBE would get into the environment if they put it in the gasoline because they knew that there were hundreds of thousands of leaking underground storage tanks across the country.
The oil companies knew that MTBE would escape from underground storage tanks and get into water supplies around gas stations, making it undrinkable. In fact, some of these oil companies were warned by their own environmental departments not to add MTBE to their gasoline for these very reasons. But they did it anyway. After all, MTBE was cheap and available.
Oil companies have tried to say that the government made them add MTBE to their gasoline. But that’s just not true. The Clean Air Act Amendments don’t require MTBE. There are other alternatives available, including ethanol. In fact, there is evidence that it was the oil companies who lobbied the government to require the use of oxygenates in the first place.
The EPA asked the oil companies whether they had any experience with MTBE contamination and whether MTBE posed a risk to the environment, but these companies wouldn’t tell the EPA about their vast experience with MTBE contamination. They told the EPA that MTBE did not pose any special threat to the environment — in fact, they promoted MTBE to the EPA as environmentally friendly. When researchers reported in the mid-1980s about the dangers of MTBE as a water contaminant, the oil companies formed an MTBE Committee to counter the bad press and assure the EPA that MTBE was not a risk to the environment.
The unfortunate result is a national MTBE contamination crisis — a crisis which some have estimated will cost at least $29 billion to clean up nationwide.
When you look at everything that the oil companies knew but wouldn’t tell the government, it is clear that they should take responsibility for this mess. In 2002, a South Tahoe jury looked at all the evidence and decided that (1) MTBE-containing gasoline is defective because the MTBE causes more harm than good and (2) it was wrong for the oil companies not to warn people about the danger of MTBE in gasoline. The jury even decided that several of the oil companies acted with malice in selling gasoline containing MTBE, making them far more blame-worthy than just being careless with the condition of our environment.
What about the gas station owners?
Under the law of products liability, when a product is defective, everyone in the “chain of distribution” from the manufacturer to the final retailer can be held responsible for that product.
We could have sued every mom and pop gas station that became a source of MTBE contamination.
We could have, but we didn’t.
Baron & Budd has taken the position that the oil companies are the ones who should be held responsible. They are the ones that decided to add MTBE to gasoline even though they knew the risk. They are the ones that told the government that everything would be okay and that actually promoted MTBE as environmentally-friendly.
On the other hand, mom and pop gas station owners had no control over what went into the gasoline that came to their station. They didn’t have the information and they didn’t have the control. While we could legally hold them responsible for the damage done, it didn’t feel right.
The National Settlement
Earlier this year, Baron & Budd negotiated a settlement with the bulk of the major oil companies that requires the oil companies to pay a substantial cash settlement to 153 public water providers in 17 states, as well as a number of private well owners. Under the settlement, the oil companies will also provide a well protection plan that will provide for cleanup of any MTBE contamination discovered in the next 30 years. The national settlement represents tremendous progress toward holding the oil companies responsible and getting communities the resources they need to clean up America’s public drinking water supplies.