Environmental
NOVEMBER 2003
MTBE Contamination:
Another Wave of Toxic Tort Litigation?
INTRODUCTION
WHAT IS MTBE?
Manufacturers and sellers of methyl tertiary butyl
ether (“MTBE”), a gasoline additive that has been
widely used for years, need to prepare to defend
against an onslaught of litigation related to, among
other things, alleged MTBE contamination of
drinking water. This onslaught of litigation has been
triggered by the potential passage by the United
States Congress of legislation that would limit or
eliminate liability for certain MTBE manufacturers
and sellers. In a race to beat the passage of such
legislation, a large number of local water districts
and communities allegedly affected by MTBE,
represented in some cases by well-known toxic tort
plaintiffs’ law firms, have filed suits against dozens
of chemical and petroleum companies, seeking
damages, injunctive relief and attorneys’ fees.
MTBE, an oxygenate, is a common and widely used
additive in gasoline that makes gasoline burn
cleaner, reducing air pollution. Gasoline containing
MTBE has been stored in underground storage tanks
(“USTs”) since the 1970s. MTBE was first used as
an octane-enhancing replacement for lead, primarily
in mid- and high-grade gasoline, at concentrations as
high as 7% (by volume). Currently, MTBE is
primarily used as a fuel oxygenate at higher
concentrations (11% to 15% by volume) as part of
the Federal Reformulated Gasoline and Wintertime
Oxyfuel programs.1 Thus, beginning in the early
1990s, EPA mandated that an oxygenate be used in
gasoline in regions not in compliance with federal
air quality standards and arguably approved MTBE
as a compliance option.
MTBE has been used for 25 years throughout the
United States. Because of its long and widespread
use, and because MTBE allegedly has contaminated
drinking water in hundreds, if not thousands, of
drinking water systems across the country, it appears
that, regardless of what happens with the pending
legislation in Congress, MTBE litigation is bound to
escalate.
1
MTBE CONTAMINATION
MTBE has been detected in groundwater and surface
water in many areas throughout the United States.
Studies have indicated concentrations of MTBE in
soil and groundwater at leaking underground
gasoline storage tank sites, and in some reservoirs
used for public water supply and recreational
boating.
EPA initiated the Oxyfuel and Reformulated Gasoline Programs in 1992 and 1995, respectively, to meet requirements of the
1990 Clean Air Act Amendments. These programs require a certain percentage of oxygenate, such as MTBE or ethanol, to be
added to gasoline that is sold or distributed in pollution-prone metropolitan areas. See Section 211(k), (m) of the Clean Air Act,
42 U.S.C. § 7545(k), (m).
Kirkpatrick & Lockhart LLP
The United States Geological Survey (“USGS”)
recently conducted a survey of the frequency of
detection, concentration and distribution of MTBE
and other ether gasoline oxygenates in drinking
water sources across the United States. According to
this survey, MTBE has been detected in water
systems in 36 states at concentrations ranging from
0.1 to 17,800 micrograms per liter. Generally, the
detected concentrations of MTBE were in the low
end of that range with the median of the detected
concentrations at less than 5.0 micrograms per liter.2
Despite recent press coverage concerning MTBE
contamination, the USGS has not found widespread,
high-concentration MTBE contamination in rivers,
reservoirs, and groundwater that are actively used as
the sources for community water systems.3
POTENTIAL LEGISLATION REGARDING MTBE
The United States Congress currently is considering
passage of an energy bill, which is still being revised
and debated in conference committee. The House
version includes an MTBE liability waiver, which
would give manufacturers of MTBE immunity from
defective product liability.4 The MTBE liability
waiver is limited and would not protect MTBE
producers in the event of spills or negligence;
however, many opponents of this provision argue
that other theories of liability, such as trespass,
nuisance, and negligence, would provide inadequate
remedies to potential plaintiffs.
The Senate version of the energy bill, on the other
hand, does not contain such a provision at this time,
although it is still under consideration.5 Forty-two
2
(42) Senators, predominantly Democrats, oppose
inclusion of an MTBE waiver and could block
energy legislation containing such a provision
through a successful filibuster. It is not clear,
however, whether they will attempt to do so.
RECENTLY-FILED MTBE LITIGATION
At times represented by well-known toxic tort
plaintiffs’ law firms, such as Baron & Budd, states,
municipalities and public water utilities recently
have filed numerous lawsuits in response to the
proposed legislation regarding MTBE. For example,
attorneys representing water districts and
communities allegedly affected by MTBE filed
seven lawsuits in New York on September 30, 2003.
The State of New Hampshire also filed a lawsuit on
September 30, 2003 against twenty-two (22) oil and
chemical companies for allegedly polluting the
state’s waters with MTBE. On the West Coast, the
City of Fresno filed an action on October 23, 2003
against manufacturers and sellers of MTBE alleging
damages to the city’s water supply. Numerous other
lawsuits regarding alleged MTBE contamination
have been filed nationwide. Plaintiffs appear to be
hurrying to file these lawsuits before Congress
enacts an energy bill that could potentially block
some MTBE-related litigation.
As the MTBE lawsuits escalate, so does the rhetoric
with which the allegations therein are being made.
For example, in a 68-page lawsuit filed in state court
in Massachusetts, municipalities and water supply
districts aver, among other things, that
manufacturers, designers, refiners, formulators,
Grady, S.J., 2003, National Survey of Methyl-tert Butyl Ether and Other Volatile Organic Compounds in Drinking Water Sources:
Results of the Random Survey, U.S. Geological Survey Open-File Report 02-4079 at
http://sd.water.usgs.gov/nawqa/vocns/nat_survey.html.
3
Statement, Robert M. Hirsch, Associate Director for Water – U.S. Geological Survey, before the United States House of
Representatives, Committee of Energy and Commerce, Subcommittee on Oversight and Investigations, Nov. 1, 2001 at
http://sd.water.usgs.gov/nawqa/vocns/USGS_MTBE_testimony.html.
4
See Section 17102 of U.S. House Bill 6 at http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HR00006:|/bss/d108query.html.
5
See U.S. Senate Bill 14 at http://thomas.loc.gov/cgi-bin/bdquery/z?d108:SN00014:|/bss/d108query.html.
KIRKPATRICK & LOCKHART LLP ENVIRONMENTAL ALERT
distributors, suppliers, sellers and/or marketers of
MTBE and/or gasoline containing MTBE
“unleashed an unprecedented assault on the water
supplied to the citizens of Massachusetts” and
conspired to conceal the actual threat of MTBE.6
Further, the plaintiffs aver that “[a]s the reality of
widespread MTBE groundwater contamination
started coming to light, Defendants ‘greenwashed’
the shameful facts.”7 Likewise, in a lawsuit filed in
state court in New Hampshire, the plaintiffs aver that
use of MTBE in gasoline “has created an
unprecedented threat to both the surface and
groundwaters of the state” and that “even at
extremely low levels, MTBE renders drinking water
putrid, foul, and unfit for purveying as drinking
water to the public.”8 This type of rhetoric reflects
the high emotions associated with this issue, and
supports the predictions of those who believe that
MTBE litigation may become another nationwide
wave of toxic tort litigation.
CONCLUSION
The House and Senate appear to remain divided over
the MTBE provision, and it is not clear whether
Congress will resolve this issue. Regardless of the
outcome of the pending legislation, more lawsuits
against MTBE manufacturers and sellers should be
expected due to the widespread MTBE
contamination of public drinking water supplies.
THOMAS J. SMITH
tsmith@kl.com
412.355.6758
TODD A. ROESSLER
troessler@kl.com
412.355.8279
6
Brimfield Housing Auth. v. Amerada Hess Corp., Mass.
Super. Ct., No. 03-4623, Sept. 30, 2003 at paragraphs 1 and
148.
7
Id. at paragraph 175.
8
State of New Hampshire v. Amerada Hess Corp., N.H. Super.
Ct., No. 03-C-550, Sept. 30, 2003 at paragraphs 3 and 82.
FOR MORE INFORMATION about this Alert or Kirkpatrick & Lockhart’s environmental
practice, please contact the authors or one of the K&L office contacts below. You may also
visit our website at www.kl.com.
Michael DeMarco
Robert Everett Wolin
R. Timothy Weston
Frederick J. Ufkes
Daniel A. Casey
William H. Hyatt, Jr.
Warren H. Colodner
Thomas J. Smith
Edward P. Sangster
Barry M. Hartman
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This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
NOVEMBER 2003
LLP. ALL RIGHTS RESERVED.
© 2003 KIRKPATRICK & LOCKHART
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