MTBE Waiver Faces Senate Opposition

By J.R. Pegg

WASHINGTON, DC, October 14, 2003 (ENS) - Forty two U.S. senators have asked the energy conference committee not to include a liability waiver for manufacturers of the gasoline additive MTBE - methyl tertiary butyl ether - in the pending energy bill. The senators say Congress did not mandate the use of MTBE and manufacturers, who knew of the toxicity of the chemical, should be liable for clean up costs some estimate at more than $29 billion.

The additive - used since 1979 as an octane enhancer - has been used in larger concentrations since 1992 to reduce harmful emissions from gasoline.

It has helped reduce emissions, but MTBE is readily soluble in water and has been detected in ground and drinking water in every state in the nation. Once it gets into water, MTBE is difficult and expensive to remove.

Although the health risks of the suspected carcinogen have not been widely researched, low levels of MTBE can make drinking water supplies undrinkable due to its offensive odor and taste and the chemical is relatively persistent in ground water.

Critics say the liability exemption is unwarranted because oil and gas companies have known for years about the dangers of MTBE and did not take precautions to prevent spills and leaks.

MTBE has been used in many states to make gasoline burn more cleanly. (Photo courtesy U.S. Environmental Protection Agency)

The provision was included in the House version of the energy bill, but not the Senate version.

The 42 senators - all Democrats bar four Republicans and one Independent - write that Congress should "actually swiftly to discount its use and ensure that the polluters pay to clean up the mess to which they have knowingly contributed."

"There is no reason to shift the multibillion dollar clean up costs to communities and citizens who were and are innocent of blame," the senators wrote.

But supporters say the waiver would do nothing of the sort and argue the case that Congress did not mandate the use of MTBE is misleading.

"This waiver is aimed only at the product defect argument," says Frank Maisano, spokesman for the Oxygenated Fuels Association, a trade group that represents MTBE manufacturers.

The specific provision in the energy bill would protect MTBE manufacturers from legal cases based on the argument that the additive is a defective product - it would not protect them from lawsuits over negligent actions that could have allowed MTBE contamination of water supplies.

That is fair, Maisano told ENS, because MTBE is not a defective product and Congress asked the industry to add it to gasoline.

The 1990 Clean Air Act amendments called on areas in violation of federal smog standards to use gasoline with two percent oxygen in order to reduce harmful emissions. Ethanol - a corn based additive - and MTBE were the only options for gasoline refiners and communities to meet the standard, Maisano says, and the production and distribution infrastructure of ethanol was in no position to meet the demand.

The Congress had a "clear understanding that [MTBE] was going to be the additive of choice," he said.

Contrary to allegations, Maisano added, the industry informed Congress and the U.S. Environmental Protection Agency of concerns about potential water contamination from the additive.

It is spills and leaks of gasoline - not MTBE - that should be the concern of regulators and lawmakers, Maisano said.

Air pollution from traffic is an increasing problem in many cities around the United States and MTBE has helped reduce some emissions. (Photo by Ian Britton courtesy FreeFoto.com)

But critics stress that the defective product claim is the cornerstone of suits alleging negligence and the possibility that the liability waiver will pass has prompted a rush to the courts. Last week New Hampshire filed a lawsuit in state court against 22 oil companies for MTBE contamination; a week earlier, Sacramento County and 10 water utilities filed suit against major companies over potential MTBE contamination.

MTBE manufactures have settled two California lawsuits for some $300 million and court cases have revealed internal industry documents that indicate oil companies knew of the concerns about MTBE contamination of ground water as early as 1981.

California aims to have it phased out of its gasoline by the end of the year - Connecticut and New York are also pursuing bans.

The U.S. Conference of Mayors and Cities, two water utility associations and some 14 attorneys general have weighed in with opposition to the waiver.

And a coalition of 27 national public interest groups - including American Lung Association, Environmental Defense and the Natural Resources Defense Council - today followed suit, urging Congress to reject the energy bill if it contains the MTBE provision.

But Maisano is confident the liability waiver will survive. On paper, 42 senators are enough to block the bill, but whether any will reject the entire energy bill if it includes the provision is far from clear.

The procedural move that allowed the Senate to pass a bill and get to conference committed the Democrats to a single vote on the final bill.

Maisano says other measures - in particular new ethanol mandates and subsidies as well as provisions to upgrade the electrical grid - will in the end "outweigh "minor provisions like MTBE liability."