By Rich Anderson
November 11, 2008

MTBE, (methyl-tertiary-butyl-ether), a gasoline additive developed in the 1970s to improve vehicle engine performance was used extensively in the 1980’s and also served as an example of how “oxygenates” could help reduce smog in American cities.

In 1990, Amendments to the Clean Air Act included a requirement that MTBE and MTBE-like additives be used in gasoline sold in cities with smog-related problems. Prior to the more recent growth in use of ethanol in gasoline, the major oil companies promoted MTBE as the additive of choice. As MTBE use proliferated across the country, information started surfacing that it was contaminating public drinking water supplies.

Public health officials and public water managers then realized that once it is in the drinking water, it has an offensive taste and odor. As a result, to date 25 states including California and New York (accounting for 40 percent of MTBE consumption) have banned use of MTBE. While MTBE use is either banned or declining, many communities are left with contaminated water supplies. There is an effective treatment process involving granular activated carbon (GAC), but it is expensive to apply. Thus, many cities have been left to deal with the contaminated water supply problem -an expensive proposition- on their own.

This situation is beginning to change dramatically. In May of this year, a lawsuit brought on behalf of 153 parties, including municipalities, water agencies and private water companies in 17 states resulted in a partial settlement. Some of the municipalities include: Riverside (CA); South Bend (IN); Camden (NJ) and Sioux City (IA). The law firm Baron and Budd, P.C., representing the affected water providers, brought the suit against several major US oil companies. As a result, many of the cities involved are able to obtain significant cost-recovery for clean-up operations.

Scott Summy, an attorney with Baron and Budd, P.C., explains that the novel approach taken in the lawsuit is to challenge the manufacturers of the offending chemical. It is often the case in environmental contamination incidents that the affected parties challenge the users or distributors of the chemical substance. In this case the distributors are the gasoline fueling stations that experience spills or have leaking underground storage tanks (LUSTs). However, the strategy employed in this case relied on evidence that the distributors were following standard procedures that met the manufacturer’s directions and guidelines. Based on depositions and discovery documents from many of America’s leading oil companies, it became clear that the manufacturer’s of MTBE had more than adequate information concerning the potential for ground water contamination, the magnitude of leaking underground storage tanks, and that they tried to hide or discredit information from government regulators, companies that transport or store gasoline containing MTBE, and the public.

“This landmark settlement marks a significant step toward protecting the long term viability of drinking water resources across the United States” said Summy, one of the nation’s most experienced water attorneys and Co-Lead Counsel for all Plaintiffs in the MDL. “Many of these public water providers were facing federal legislation that would grant immunity to the oil companies for MTBE product liability lawsuits at the time these cases were filed. I am proud to have represented the courageous and responsible water providers and municipal governments who took this step to protect their communities.”

The partial settlement requires several major oil companies to pay $422 million to the plaintiffs (water providers and communities). The communities can use this money for cost-recovery from water supply clean-up efforts. The settlement also requires the oil companies involved to pay their share of treatment costs for wells owned or operated by the plaintiffs that become contaminated with MTBE in the future and qualify for treatment over the next 30 years. The settlement does not protect the oil companies from any future legal challenges if new evidence of adverse public health impacts is determined in the future.

The settlement has been extremely important to local governments involved in the lawsuit. Over seven million people consume the water from the 3,385 public drinking water wells involved. The lawsuit was brought in federal court in New York state. A special federal court multi-district litigation (MDL) unit was established to hear MTBE cases nationwide. Communities that experience MTBE contamination of public water supplies may still seek financial relief for remediation cost-recovery.

MTBE has unique chemical properties - it is highly soluble in water, and it is very persistent and does not readily biodegrade in ground water. Only a few drops can contaminate an Olympic'size pool. Scientists are still investigating the potential for adverse human health impacts. MTBE is a known animal carcinogen according to the US EPA, and a possible (but not yet proven) human carcinogen.