Bethalto sues 33 gasoline giants over MTBE; Baron & Budd among legal team

Kelly Holleran Apr. 29, 2010, 5:20am




The village of Bethalto blames 33 gasoline companies for causing contamination of its drinking water through a chemical they use to reduce octane levels in their gasoline.

The village claims the defendant companies began to use a chemical called MTBE in their gasoline in 1979. MTBE, which is water-seeking, is a known animal carcinogen and possible human carcinogen that has infiltrated Bethalto's water supply, the complaint alleges.

Robin L. Greenwald of Weitz and Luxemberg in New York and Scott Summy and Carla Burke of Baron and Budd in Dallas will be representing Bethalto.

"Whenever gasoline with MTBE leaks, spills, or is otherwise released into the environment, the MTBE races through underground water reservoirs, spreading faster and farther than other chemical components contained in gasoline, reaching the water table, and soon contaminating wells that draw from the affected underground aquifers," the suit states.

Once it reaches the aquifers, MTBE can survive for decades because of its resistance to degradation, the complaint says. As a result, water that is contaminated with MTBE has a foul taste and odor that renders the water unusable and unfit for human consumption, Bethalto alleges.

"Research has shown that some people can detect the distressing turpentine-like taste or odor at concentrations in water as low as one part per billion or lower," the suit states.

And its water-seeking properties cause MTBE to travel miles to aquifers not anywhere near known gasoline leaks or spills, according to the complaint.

"The U.S.G.S. annually tests the groundwater not near any known gasoline leaks or spills, and now detects MTBE in over 20% of aquifers tested in places where high MTBE-content gasoline is used," the complaint says.

The complaint alleges that the defendant corporations, which include BP Amoco, Citgo and Exxon-- to name a few, were aware of the chemical's threat to underground water supplies, but have withheld crucial information from the public.

Bethalto wants the court to order injunctive and equitable relief including investigation, testing and monitoring, alternative water, well head treatment, well head protection program, early warning system to detect MTBE before it reaches a well, preventing the defendants from further releases of MTBE, compelling the defendants to remove the contaminates from soil and groundwater and other measures necessary to remedy the contamination.

In addition, it seeks compensatory damages including costs of the investigation, costs of testing and monitoring, costs of providing water from an alternate source, costs of installing and maintaining well head treatment, costs of installing and maintaining a well head protection program, costs of installing and maintaining an early detection program, damages to compensate it for loss of consumer confidence, interest and other relief the court deems just.

Other defendants are Ashland Inc., BP Products North America, Chevron Corporation, Chevron USA, Citgo Refining and Chemicals Company, ConocoPhillips Company, El Paso Merchant Energy-Petroleum Company, Equilon Enterprises, Flint Hills Resources, Gulf Oil Limited Partnership, Marathon Petroleum Company, Marathon Oil Company, Mobil Corporation, PDV Midwest Refining, The Premcor Refining Group, Shell Oil Company, Shell Oil Products Company, Shell Petroleum, Shell Trading Company, Sunoco, Texaco, TMR Company, Total Petrochemicals USA, Valero Energy Corporation, Valero Refining and Marketing Company, Valero Refining Company, Valero Refining Company Texas and Valero Marketing and Supply Company.

They allegedly became aware of MTBE's potential dangers in October 1980 when they learned of a serious incident of MTBE groundwater contamination in Rockaway, N.J. About 4,000 residents of Rockaway tasted MTBE in water supplied from a municipal well, the complaint says.

Bethalto claims a second serious incident came to light in April 1983 when spills or leaks that occurred at two different gas stations near Jacksonville, Md., tainted the domestic wells of local residents and stalled a planned housing project.

In East Patchogue, N.Y., spilled gasoline from underground storage tanks that had been dug up and removed in 1988 sent a plume of MTBE into Long Island's only source aquifer, according to the complaint.

"A decade after the spill in East Patchogue, government officials were still tracking the MTBE plume through the aquifer thousands of feet from the site," the suit states. "In December 1992, MTBE was again found in Liberty's water at concentrations approximately three times higher than the New York State Department of Health drinking water standard of 50 ppb."

When Peter Garrett and Marcel Moreau of the Maine Department of Environmental Protection drafted a report in 1986 on the effects of MTBE in 30 Maine wells, some of the defending companies put pressure on Garrett and Moreau to revise their negative findings and recommendations that MTBE be banned as an additive or at least be stored in double-contained facilities, the complaint says. And, even though the companies succeeding in having the report's language softened, the defendants publicly continued to discredit the report, Bethalto claims.

"Privately, however, Defendants were forced to acknowledge that the major findings of the Garrett Report were correct," the suit states. "For instance, while the oil companies, via the GTTF, authors of the Garrett Report, saying the paper 'had a general lack of technical data to support the rather strong policy statements,' behind closed doors, Defendants were admitting that the authors might in fact be correct. Arco Chemical, in communications to others within the oil industry, admitted that they had no data to refute the Garrett Report's conclusions."

The defendants allegedly formed various formal and informal task forces and committees to conceal the actual threat of the MTBE, according to the complaint.

In 1990, when Congress was preparing to address the nation's smog problem, the oil industry became concerned that Congress might consider requiring alternative non-petroleum based fuels and lobbied for the Reformulated Gasoline Program, which mandated the use of RFG containing at least two percent oxygen by weight in those areas of the country with the worst ozone or smog problems. Congress passed the amendment in 1990. In turn, gas companies are required to use an oxygenate, but the type of oxygenate is not specified, the complaint says.

"MTBE became Defendants' 'oxygenate of choice' because it was the most inexpensive oxygenate to produce and offered Defendants the highest profit margin of all the oxygenates available," the suit states. "Defendants could manufacture MTBE from their already valuable refinery by-products and were therefore not forced to purchase a different oxygenate, such as ethanol, from a third-party."

When the public began to learn of the dangers of MTBE in the early 1990s, the Oxygenated Fuels Association, a group started by the defendants, published a pamphlet disputing reports of the chemical's dangers.

"According to OFA's reasoning, when MTBE pollutes water it 'can serve as an early indicator of gasoline contamination in groundwater, triggering its cleanup and remediation, and limiting the probability of harm from the usual constituents of gasoline,'" the suit states. "This 'canary-in-the-mine' spin, repeated often by Defendants, rings false in light of the fact that MTBE is usually not merely the first, but also the worst or sometimes the only, contaminant imported to groundwater by gasoline. Moreover, MTBE contamination is most often judged to be too costly to clean up."

Even before becoming aware of its potential harm, the defendants should have at least performed toxicological tests on the chemical before including it into their products, according to the complaint. However, they attempted to convince the EPA that such tests were not needed, the complaint says.

In its seven-count complaint, Bethalto accuses the defendants of strict liability -- design defect or defective product, strict liability -- failure to warn, negligence, public nuisance, private nuisance, trespass and civil conspiracy.

It says the contamination of its water has posed a threat to Bethalto's groundwater, has contaminated the village's wells, has caused a requirement for testing of its waters, has required a remediation of MTBE groundwater contamination, has diminished consumer confidence in the use of its waters, has diminished its property value and has caused Bethalto to incur substantially increased expenses.

Madison County Circuit Court case number: 10-L-402.

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