Like Oil and Water

As Congress Considers Legal Immunity for Oil Companies More Communities Go To Court Over MTBE Pollution

Tuesday, April 5, 2005

Like Oil and Water

As Congress Considers Legal Immunity for Oil Companies More Communities Go To Court Over MTBE Pollution

Two years ago, support for Tom DeLay's MTBE liability shield for oil and chemical companies stalled when documents surfaced showing the companies had, contrary to their claims, aggressively lobbied for MTBE's adoption as a gasoline additive. The memos and other correspondence showed that oil companies knew the toxic chemical would pollute drinking water, and that they — not the government — had pushed for its adoption anyway.

Now, as Congress takes up the energy bill again, DeLay and his deputy, Joe Barton, are pushing their colleagues once more to shield big oil companies from legal accountability, but they face a much more difficult task this time. Dozens of communities now know that their groundwater is polluted with MTBE, and many have taken the oil companies to court to force the companies to pay to clean up the mess their pollution has made of people's drinking water. Two communities, South Lake Tahoe and Santa Monica, California, have already obtained clean-up relief through high profile lawsuits.

A new analysis by the EWG Action Fund finds that detections of MTBE are rising sharply across the country, with contamination now found in 1,861 water systems in 29 states, serving more than 45 million Americans, up from 1,500 systems two years ago. More significantly for the fate of the waiver, MTBE has been found in more than 650 water systems in the districts of 97 House members who voted for the energy bill and the waiver. Twenty seven (27) of these members represent communities that are suing MTBE makers for tainting their water supplies — lawsuits that will be thrown out if the liability waiver becomes law. The other 85 do not yet represent communities in litigation, but voted to protect oil companies from future lawsuits by communities they represent.

 

26 House Members Who Voted in 2003 To Protect Oil Companies From MTBE Lawsuits, Represent Communities That Have Subsequently Sued Those Companies Over MTBE-Contaminated Drinking Water

  Member Number of
Systems in
litigation
Systems in litigation
1 Wally Herger (CA-2) 1 California Water Service Company
2 John T. Doolittle (CA-4) 7 California-American Water Company (Sacramento County)
City of Roseville
Quincy Community Services District
Sacramento County Water Agency
San Juan Water District
The People of the State of California
California Water Service Company
3 Richard W. Pombo (CA-11) 1 California Water Service Company
4 Dennis A. Cardoza (CA-18) 1 California Water Service Company
5 Devin Nunes (CA-21) 1 California Water Service Company
6 William M. Thomas (CA-22) 1 California Water Service Company
7 Elton Gallegly (CA-24) 1 California Water Service Company
8 Howard P. "Buck" McKeon (CA-25) 1 California Water Service Company
9 Gary G. Miller (CA-42) 1 Orange County Water District
10 Ken Calvert (CA-44) 2 City of Riverside
Orange County Water District
11 Christopher Cox (CA-48) 1 Orange County Water District
12 Rob Simmons (CT-2) 4 Columbia Board of Education
Horace Porter School
Town of East Hampton
American Distilling and Mfg. Co. Inc.
13 Nancy L. Johnson (CT-5) 1 United Water Connecticut, Inc.
14 Jeff Miller (FL-1) 1 Escambia County Utilities Authority
15 Steve King (IA-5) 3 City of Galva
City of Ida Grove
City of Sioux City
16 Jerry F. Costello (IL-12) 2 Village of East Alton (Individual Action)
Village of East Alton (Class Action)
17 Peter J. Visclosky (IN-1) 1 North Newton School
18 Chris Chocola (IN-2) 2 Town of Mishawaka
Southbend
19 Jerry Moran (KS-1) 1 Dodge City
20 Todd Tiahrt (KS-4) 3 Bel Aire
Chisholm Creek Utility Authority
Park City, City of
21 Rodney Alexander (LA-5) 2 City of Marksville
City of Rayville
22 Scott Garrett (NJ-5) 3 New Jersey American Water Company, Inc.
United Water New Jersey, Inc.
United Water Vernon Hills, Inc.
23 Mike Ferguson (NJ-7) 2 New Jersey American Water Company, Inc.
United Water Hampton, Inc.
24 Rodney P. Frelinghuysen (NJ-11) 3 New Jersey American Water Company, Inc.
Southeast Morris County Municipal Utilities Authority
United Water Arlington Hills, Inc.
25 J. Randy Forbes (VA-4) 1 Greensville County Water & Sewer Authority
26 Rick Boucher (VA-9) 2 Buchanan County School Board
Patrick County School Board

Source: Environmental Working Group. Data on MTBE lawsuits obtained from court records and law firms representing communities. Information on MTBE contamination is derived from data obtained from state agencies under the Federal Freedom of Information Act or state public records laws. Data were unavailable for some states; other states reported no MTBE detections. Some states currently do not require reporting of MTBE detections.

 

MTBE, or methyl tertiary butyl ether, is made by blending methanol (methyl alcohol) and other byproducts of gasoline refining. It was touted by the oil companies as a so-called oxygenate that, added to gasoline, would help cars burn cleaner (although research has since shown it's not all that effective). It seeps into water systems from leaking underground gasoline storage tanks and spreads rapidly. At high doses, the Environmental Protection Agency says MTBE is a possible human carcinogen, but even at very low levels of contamination, its overwhelming stench renders water unfit for drinking. It is very difficult and expensive to remove from water supplies, and in addition to its own health risks, accelerates the spread in water of benzene, a known carcinogen, and other toxic chemicals in gasoline.

 

 

The liability waiver is a top priority for House Majority Leader Tom DeLay and Energy and Commerce Committee chair Joe Barton, both of Texas, home of most the oil and chemical companies that produced MTBE until contamination problems prompted California and 16 other states to ban it. According to federal records, DeLay and Barton together received more than $350,000 in campaign contributions from the oil and gas industry in the 2004 campaign cycle. [Center for Responsive Politics 2005]

The waiver, included in a draft of the energy bill from Barton's committee, would prohibit lawsuits charging that the additive was a faulty product that the industry knew would leak from storage tanks and contaminate water supplies — the exact argument two California communities used in court to win multimillion-dollar settlements to clean up the contamination and secure new supplies. The bill not only closes the door to new defective-product lawsuits, but throws out of court all cases filed since Sept. 5, 2003. The bill bans MTBE nationwide in 2014, but in the interim gives the chemical's manufacturers $250 million a year — $2 billion total — in "transition assistance grants" to convert their facilities to other products. [View Draft]

MTBE makers and their political allies claim they should not be liable because they were forced to add the chemical to gasoline in the early 1990s by EPA air pollution regulations requiring the use of an oxygenate. But oil industry documents unearthed in the California lawsuits show that it was the oil industry who chose and promoted MTBE over other oxygenates because it was a previously unwanted refinery byproduct they could turn into a source of profit. The documents show that Shell, one of the first refiners to add MTBE to gasoline, and other companies knew as early as 1980 that the additive posed an extraordinary threat to water supplies, but ignored or suppressed scientific evidence and concerns raised in internal memos.

LINK: With Knowledge: What The Oil Companies Knew About MTBE Pollution and When They Knew It

Now, new evidence has surfaced that a decade ago, Commerce Committee lawyers told Barton himself that using MTBE was the industry's choice, not EPA's requirement. A June 5, 1995 memo from staff counsel to an Energy and Commerce subcommittee chaired by Barton explained that the EPA's Reformulated Gasoline Program (RFG) did not mandate or favor MTBE (made from methanol) over any other oxygenate that could be used to reformulate gasoline:

A major aspect of the debate on the 1990 Clean Air Act Amendments was the issue of "fuel neutrality." In essence, since various fuels and fuel constituents compete for the RFG and alternative fuels market, an effort was made to avoid dictating any particular fuel choice. On this matter ... the Committee on Energy and Commerce ... could not have been more clear. The Committee stated at the time that, "It is intended that this (clean alternative fuels) be a fuel-neutral program. Although some believe that EPA has a strong preference for methanol, the Committee intends no such preference for that or any other fuel." [U.S. House of Representatives 1995] [Emphasis added.] [View Document]

In 2003, the power of the majority leader and heavy lobbying by the oil industry were enough to persuade all but 25 House Republicans who voted, plus 46 Democrats, to support the energy bill and MTBE waiver. In 2005, the increased contamination, growing number of lawsuits, and fresh evidence against the oil companies' claim that EPA required the additive will make it harder for House members to explain to their constituents why they voted for a bailout for oil companies rather than clean drinking water in their own districts. In addition, DeLay's clout has been diminished by a series of ethics scandals. [Curtius 2005] But he and Barton continue to insist they will not move an energy bill without an MTBE liability waiver. [Chemical Week 2005] The House Republican leaders' scheme to get their home-state oil companies off the hook for billions of dollars in cleanup costs will hinge on this question: Is political blood thicker than polluted water?

 

MTBE Contamination By State

MTBE contamination is soaring

Although the use of MTBE in gasoline is rapidly declining, detections of MTBE in water supplies are soaring. The number of water systems reporting MTBE contamination in tap water supplies increased more than 15-fold between 1996 and 2004, from 137 to 1,861, and the number of states reporting problems more than doubled, from 11 to 29, according to EWG Action Fund's analysis of state water testing data. These figures are not necessarily systems whose customers are currently drinking MTBE in their tap water, but those where it has been detected somewhere in the system. The total number of contaminated systems includes private water supplies that may serve only a single customer, but more than 60 percent (about 1,100 systems) supply drinking water to cities, counties, rural communities and schools.

In the majority of the affected communities, consumers are unaware of the contamination because water utilities take steps to protect them as soon as MTBE is detected. MTBE contamination as low as two parts per billion — two drops in an Olympic-sized swimming pool — can produce a harsh chemical odor and taste that can cause tap water to be undrinkable. To cope with the problem, water utilities must either blend MTBE-contaminated water with clean sources to dilute the chemical, install costly systems to remove it, or abandon affected wells and find new water sources. The American Water Works Association, representing 4,700 U.S. water systems, estimates nationwide MTBE cleanup and water replacement costs at $29 billion — and rising with each new detection.

MTBE contamination affects communities of all sizes, with contamination reported from large systems like San Diego, where the water utility serves 1.2 million people, to the Millbrook Country Day School in Massachusetts, serving 25 students and teachers. MTBE has been detected in water supplies serving 32 million people in California, about 4.7 million in New Jersey, about 2.2 million in Massachusetts and 1 million in Texas.

MTBE Has Been Found in Tap Water in At Least 29 States

* Important Note: Many states do not keep records on their MTBE contamination. This list only reflects states that did report MTBE contamination data.

State Number of
Systems Affected
by MTBE
Population
served*
Total 1,860 21,532,000 to
45,698,000
Alaska 1 36,000
Alabama 9 298,000
Arkansas 110 593,000
California 144 32,087,000
Delaware 15 83,000
Florida 13 857,000
Iowa 3 3,000
Illinois 44 354,000
Indiana 14 193,000
Massachusetts 221 2,243,000
Maryland 116 196,000
Maine 16 58,000
Michigan 14 57,000
Minnesota 27 224,000
Missouri 13 17,000
Nebraska 8 11,000
New Hampshire 280 409,000
New Jersey 430 4,791,000
New Mexico 5 39,000
Nevada 4 231,000
New York 170 453,000
Ohio 5 9,000
Oklahoma 13 6,000
Pennsylvania 47 981,000
Rhode Island 28 83,000
South Carolina 20 63,000
Texas 46 1,080,000
Virginia 15 12,000
Wisconsin 29 234,000

* Low end estimate excludes systems serving over 1 million people. In large systems MTBE contamination typically affects only a portion of the population.

Source: Environmental Working Group. Data on MTBE lawsuits obtained from court records and law firms representing communities. Information on MTBE contamination is derived from data obtained from state agencies under the Federal Freedom of Information Act or state public records laws. Data were unavailable for some states; other states reported no MTBE detections. Some states currently do not require reporting of MTBE detections.

Important Note: A reported detection of MTBE does not mean the contaminant was found at any level in finished drinking water that the water system delivered to consumers. Some results reflect tests conducted on a water source, others may reflect results from finished tap water. MTBE contamination as low as 2 parts per billion produces a harsh chemical odor that renders the tap water undrinkable. For that reason, in the vast majority of the affected communities water utilities have taken steps to protect consumers, often with costly remedial action, as soon as MTBE is detected and before water is delivered. Water utilities either blend contaminated water with clean sources to dilute the MTBE in finished water, install costly systems to remove the chemical, or abandon tainted wells and shift to clean sources. Community water suppliers would be unable to recover the cost of these remedies from MTBE manufacturers under the liability shield Republican leaders have proposed to include in pending national energy legislation.

Data are primarily for community water systems. Comparable data are not available for MTBE contamination of the majority of private wells.

In some communities, a substantial portion of the local water supply has been contaminated, while in many others only one or two detections of MTBE have been made. But this last fact is less reassuring than it is worrisome. State water testing records obtained by EWG indicate that in almost all systems with just one positive detection of MTBE, tests for the compound were conducted in the last four years. Water systems nationwide are wrapping up a years-long process of meeting federal requirements mandating testing for "unregulated contaminants" like MTBE. This suggests that MTBE is only now showing up in many drinking water systems. The prospect that the MTBE contamination crisis has yet to peak makes the scheme to shield polluters from liability all the more troubling.

Also rising rapidly are lawsuits against the oil companies by communities whose water is contaminated with MTBE. Since September 2003, at least 141 water systems in 16 states have filed suits arguing that MTBE is a defective product, and that refiners knew that it would contaminate groundwater before they began adding it to gasoline but failed to warn consumers. In 2002 that argument, outlined in devastating detail in industry documents, convinced a jury to find Shell, Texaco and four other companies liable for contaminating drinking water supplies in South Lake Tahoe, Calif., forcing a $60 million settlement for cleanup. In 2003, Shell, Exxon, ChevronTexaco and 15 other companies settled a contamination lawsuit brought by Santa Monica, Calif., by agreeing to spend an estimated $200 million on a filtration system to remove MTBE from the city's water supplies.

The success of those lawsuits in holding the oil companies responsible for MTBE contamination sparked the first attempt in 2003 by the industry and its political allies to make it impossible for communities to sue on defective product grounds. In turn, the push for the waiver set off a rush to file lawsuits by communities with contamination. Of the 150-plus cases now in court, at least 141 were filed after September 2003 and would be thrown out by the retroactive provision of the DeLay-Barton bill. If MTBE makers are given immunity from defective product lawsuits, the burden of cleanup will fall to individual gas station owners, most of whom lack the kind of money it would take, and ultimately to the taxpayers.

In the House, 21 Republicans and five Democrats who voted for the energy bill and MTBE liability waiver now are faced with the prospect, if they again support it, of throwing out a total of 38 lawsuits filed by community water systems in the districts they represent. Three Members are from New Jersey, which has a total of 430 water systems where MTBE has been detected — far more systems than in any other state, supplying drinking water to 4.7 million Garden State residents. Eleven are from California, where MTBE has been found in 144 water systems serving more than 32 million people — almost 90 percent of the state's population.

An additional 81 House members — 74 Republicans and 9 Democrats — who supported the energy bill and liability waiver represent districts where MTBE has been detected in the water supply, but lawsuits have not been filed. Seven are from California, representing districts where 22 water systems have detected MTBE. Thirteen, including DeLay and Barton, are from Texas; in their districts are 29 water systems with MTBE contamination. One House member who voted yes in 2003 (Arkansas Democrat Mike Ross) has 50 water systems in his district with contamination. Another (Maryland Republican Roscoe G. Bartlett) has 50.

84 House Members Who Voted To Protect Oil Companies From Litigation in 2003 Also Represent Communities With MTBE In Their Drinking Water

 

  Member State/District Systems with contamination Vote on Energy Bill
final passage
in 2003
1 Akin, W. Todd MO-2nd 2 Yea
2 Baca, Joe CA-43rd 2 Yea
3 Bachus, Spencer AL-6th 2 Yea
4 Barrett, J. Gresham SC-3rd 4 Yea
5 Bartlett, Roscoe G. MD-6th 50 Yea
6 Barton, Joe TX-6th 1 Yea
7 Berry, Marion AR-1st 28 Yea
8 Biggert, Judy IL-13th 1 Yea
9 Blunt, Roy MO-7th 2 Yea
10 Bonilla, Henry TX-23rd 3 Yea
11 Bonner, Jo AL-1st 5 Yea
12 Boozman, John AR-3rd 18 Yea
13 Brady, Kevin TX-8th 1 Yea
14 Brown, Henry E. Jr. SC-1st 1 Yea
15 Burgess, Michael C. TX-26th 1 Yea
16 Buyer, Steve IN-4th 3 Yea
17 Camp, Dave MI-4th 3 Yea
18 Cantor, Eric VA-7th 3 Yea
19 Carter, John R. TX-31st 2 Yea
20 Cole, Tom OK-4th 4 Yea
21 Culberson, John Abney TX-7th 2 Yea
22 Cunningham, Randy ``Duke'' CA-50th 1 Yea
23 Davis, Jo Ann VA-1st 1 Yea
24 DeLay, Tom TX-22nd 1 Yea
25 Dreier, David CA-26th 6 Yea
26 Emerson, Jo Ann MO-8th 4 Yea
27 Evans, Lane IL-17th 6 Yea
28 Everett, Terry AL-2nd 1 Yea
29 Feeney, Tom FL-24th 1 Yea
30 Foley, Mark FL-16th 3 Yea
31 Gerlach, Jim PA-6th 11 Yea
32 Gibbons, Jim NV-2nd 3 Yea
33 Goode, Virgil H. Jr. VA-5th 2 Yea
34 Goodlatte, Bob VA-6th 2 Yea
35 Graves, Sam MO-6th 2 Yea
36 Green, Gene TX-29th 2 Yea
37 Gutknecht, Gil MN-1st 4 Yea
38 Hall, Ralph M. TX-4th 4 Yea
39 Harris, Katherine FL-13th 1 Yea
40 Hastert, J. Dennis IL-14th 5 Yea
41 Hoekstra, Peter MI-2nd 1 Yea
42 Holden, Tim PA-17th 3 Yea
43 Hunter, Duncan CA-52nd 2 Yea
44 Hyde, Henry J. IL-6th 1 Yea
45 Issa, Darrell E. CA-49th 4 Yea
46 Istook, Ernest J. Jr. OK-5th 4 Yea
47 Johnson, Timothy V. IL-15th 2 Yea
48 Kennedy, Mark R. MN-6th 5 Yea
49 Kline, John MN-2nd 7 Yea
50 LaHood, Ray IL-18th 7 Yea
51 Lewis, Jerry CA-41st 3 Yea
52 Lucas, Frank D. OK-3rd 5 Yea
53 McCotter, Thaddeus G. MI-11th 1 Yea
54 McHugh, John M. NY-23rd 14 Yea
55 Manzullo, Donald A. IL-16th 8 Yea
56 Neugebauer, Randy TX-19th 2 Yea
57 Ney, Robert W. OH-18th 2 Yea
58 Osborne, Tom NE-3rd 4 Yea
59 Pearce, Stevan NM-2nd 2 Yea
60 Pence, Mike IN-6th 1 Yea
61 Peterson, Collin C. MN-7th 3 Yea
62 Platts, Todd Russell PA-19th 4 Yea
63 Pombo, Richard W. CA-11th 2 Yea
64 Radanovich, George CA-19th 4 Yea
65 Ramstad, Jim MN-3rd 2 Yea
66 Rogers, Mike MI-8th 3 Yea
67 Rogers, Mike AL-3rd 1 Yea
68 Ross, Mike AR-4th 50 Yea
69 Sessions, Pete TX-32nd 1 Yea
70 Shaw, E. Clay Jr. FL-22nd 1 Yea
71 Sherwood, Don PA-10th 7 Yea
72 Shimkus, John IL-19th 8 Yea
73 Skelton, Ike MO-4th 1 Yea
74 Smith, Lamar S. TX-21st 12 Yea
75 Terry, Lee NE-2nd 1 Yea
76 Thornberry, Mac TX-13th 1 Yea
77 Upton, Fred MI-6th 2 Yea
78 Weldon, Curt PA-7th 5 Yea
79 Weller, Jerry IL-11th 5 Yea
80 Wilson, Heather NM-1st 1 Yea
81 Wilson, Joe SC-2nd 7 Yea
82 Wynn, Albert Russell MD-4th 2 Yea
83 Young, C. W. Bill FL-10th 1 Yea
84 Young, Don AK-At Large 1 Yea

Source: Environmental Working Group. Data on MTBE lawsuits obtained from court records and law firms representing communities. Information on MTBE contamination is derived from data obtained from state agencies under the Federal Freedom of Information Act or state public records laws. Data were unavailable for some states; other states reported no MTBE detections. Some states currently do not require reporting of MTBE detections.

 

Oil Companies Seeking Immunity

The pollution liability waiver will primarily benefit a handful of petrochemical companies in just one state — Texas. For these companies in DeLay and Barton's home state, the waiver represents a last opportunity to strike a financial gusher from a refinery byproduct classified as toxic waste under federal Superfund law. In 2003, the U.S. had three billion gallons of annual MTBE production capacity, and seven companies, all with facilities in Texas, accounted for approximately 80 percent of the total. [Freedonia 2004] In 2002, the U.S. market for MTBE was estimated to be $4.7 billion, although it has declined significantly in the wake of the state bans. [Franz 2002]

According to federal records, in the 2004 campaign cycle DeLay received $136,425 in contributions from the oil and gas industry. Barton received $224,398. Two of the current or former MTBE makers who would be protected from lawsuits by the DeLay-Barton bill were among the top contributors to the two congressmen. Lyondell Chemical gave $16,000 to DeLay and $13,250 to Barton. Valero Energy gave $15,000 to Barton and $10,000 to DeLay. [Center for Responsive Politics 2005]

Four of the seven largest MTBE producers are located in the 29th Congressional District, in the petroleum refinery belt east of Houston. The district is represented by Democrat Gene Green, who voted for the energy bill and MTBE liability waiver. There have been two detections of MTBE in water systems in Green's district.

The remaining facilities are in Corpus Christi, Texas, represented by Democrat Solomon Ortiz; Baton Rouge, La., represented by Republican Richard Baker; and Port Neches, Texas, represented by Republican Ted Poe. Both Ortiz and Baker voted for the energy bill and liability waiver; Poe was first elected to Congress in 2004. Other than Green, none of the Texans has a water system in his district where MTBE has been detected, although statewide 46 water systems, serving more than 1 million people, have reported contamination. No detections of MTBE have been reported in water systems in Louisiana.

U.S. MTBE producers 2004

   • Lyondell Chemical, Channelview, TX
   • Huntsman, Port Neches, TX
   • Valero Energy, Corpus Christi, TX
   • ExxonMobil, Baton Rouge, LA
   • Equistar, Channelview, TX
   • Belvieu Environmental, Mont Belvieu, TX
   • Shell Deer Park, Deer Park, TX

SOURCE: Gasoline & Other Fuel Additives to 2008. The Freedonia Group, Nov. 1, 2004. www.freedoniagroup.com

Although only six major MTBE manufacturers remain in the U.S., the list of companies who would be let off the hook by the DeLay-Barton bill is much longer. It includes virtually every gasoline refiner and marketer in the country, including Arco, ConocoPhillips, ShellTexaco, Gulf and Unocal. Because the oil industry has been through a dizzying array of mergers and buyouts in the last decade, many of the companies are being sued under multiple names.

Refinery defendants

• Amerada Hess Corp. • Motiva Enterprises LLC
• Ashland, Inc. • Texaco Refining & Marketing Inc.
• Atofina Petrochemicals, Inc. • TMR CO.
• BP Amoco Chemical Co. • ExxonMobil Corp.
• BP Products North America • Mobil Corp.
• Atlantic Richfield Co. • Crown Central Petroleum Corp.
• BP West Coast Products LLC • Flint Hills Resources LP (Koch Petroleum Group)
• Coastal Eagle Point Oil Co. • Giant Yorktown Inc.
• Coastal Oil New England • Gulf Oil LP
• El Paso Merchant Energy-Petroleum Co. • Placid Refining Co. LLC
• ConocoPhillips Co. • Premcor Refining Group, Inc.
• Tosco Corp. • Valero Energy Corp.
• Marathon Ashland Petroleum LLC • TPI Petroleum Inc.
• Marathon Oil Co. • Tesoro Petroleum Corp.
• Equilon Enerprises LLC • Ultramar Energy Inc.
• Shell Oil Co. • Unocal Corp.

* Partial list. Many of the companies listed have several divisions which are also named in the lawsuits.

 

Communities With Pending Lawsuits

157 pending lawsuits in 17 states

State Client Case Status
CA California-American Water Company (Monterrey) filed 9-30-03
CA California-American Water Company (Sacramento County) filed 9-30-03
CA California Water Service Company filed 12-30-04
CA Citrus Heights Water District filed 9-30-03
CA City of Riverside filed 10-17-03
CA City of Roseville filed 10-16-03
CA City of Sacramento filed 9-30-03
CA Del Paso Manor Water District filed 9-30-03
CA Fair Oaks Water District filed 9-30-03
CA Florin Resource Conservation District filed 9-30-03
CA Martin Silver, et. al. filed 9-30-03
CA Orange County Water District * filed 5-06-03
CA Quincy Community Services District filed 11-07-03
CA Rio Linda Elverta Community Water District filed 9-30-03
CA Sacramento County Water Agency filed 9-30-03
CA Sacramento Groundwater Authority filed 9-30-03
CA Sacramento Suburban Water District filed 9-30-03
CA San Juan Water District filed 9-30-03
CA The People of the State of California filed 9-30-03
CT Columbia Board of Education filed 9-30-03
CT Horace Porter School filed 9-30-03
CT Town of East Hampton filed 10-22-03
CT American Distilling and Mfg. Co. Inc. filed 10-22-03
CT Our Lady of the Rosary Chapel filed 10-22-03
CT United Water Connecticut, Inc. filed 11-07-03
FL Escambia County Utilities Authority filed 10-24-03
IA City of Galva filed 9-30-03
IA City of Ida Grove filed 9-30-03
IA City of Sioux City filed 9-30-03
IL Island Lake filed 11-18-03
IL Village of East Alton (Individual Action) * filed 2001
IL Village of East Alton (Class Action) filed 9-30-03
IL State of Illinios - Kankakee County * filed 06-30-97
IL Kankakee County Class Action * filed 12-12-01
IN Campbellsburg filed 1-12-04
IN Town of Mishawaka filed 11-17-03
IN North Newton School Corp. filed 11-20-03
IN City of Rockport filed 10-24-03
IN Southbend filed 11-20-03
KS Bel Aire filed 11-14-03
KS Chisholm Creek Utility Authority filed 11-14-03
KS Dodge City filed 11-14-03
KS Park City, City of filed 11-18-03
LA City of Marksville filed 11-20-03
LA City of Rayville filed 1-2004
MA Brimfield Housing Authority (Brimfield, MA) filed 9-30-03
MA Centerville-Osterville-Marsons Mills Water Department filed 11-17-03
MA Chelmsford Water District (Chelmsford, MA) filed 9-30-03
MA Dedham Westwood Water District filed 11-17-03
MA City of Brockton filed 11-17-03
MA City of Methuen filed 11-17-03
MA City of Peabody filed 9-30-03
MA Cotuit Fire District Water Department (Cotuit, MA) filed 9-30-03
MA East Chelmsford Water District (Chelsford, MA) filed 9-30-03
MA Hillcrest Water District (Leicester, MA) filed 9-30-03
MA Leicester Water Supply District (Leicester, MA) filed 9-30-03
MA Massasoit Hills Trailer Park, Inc. filed 11-17-03
MA North Chelmsford Water District (Chelsford, MA) filed 9-30-03
MA North Raynham Water District filed 11-17-03
MA Sandwich Water District filed 11-17-03
MA South Sagamore Water District filed 9-30-03
MA Sudbury Water District filed 11-17-03
MA Town of Avon filed 11-17-03
MA Town of Bedford filed 11-17-03
MA Town of Bellingham filed 11-17-03
MA Town of Charlton filed 9-30-03
MA Town of Danvers filed 11-17-03
MA Town of Dover filed 11-17-03
MA Town of Dudley filed 9-30-03
MA Town of Duxbury filed 9-30-03
MA Town of East Bridgewater filed 11-17-03
MA Town of East Brookfield filed 11-17-03
MA Town of Edgartown filed 9-30-03
MA Town of Halifax filed 9-30-03
MA Town of Hanover filed 9-30-03
MA Town of Hanson filed 11-17-03
MA Town of Holliston filed 11-17-03
MA Town of Hudson filed 9-30-03
MA Town of Maynard filed 9-30-03
MA Town of Merrimac filed 11-17-03
MA Town of Millis filed 11-17-03
MA Town of Monson filed 9-30-03
MA Town of Norfolk filed 11-17-03
MA Town of North Attleborough filed 11-17-03
MA Town of North Reading filed 11-17-03
MA Town of Norwell filed 11-17-03
MA Town of Pembroke filed 9-30-03
MA Town of Reading filed 11-17-03
MA Town of Salisbury filed 4-21-04
MA Town of Spencer filed 9-30-03
MA Town of Stoughton filed 11-17-03
MA Town of Tewksbury filed 9-30-03
MA Town of Tyngsboro filed 9-30-03
MA Town of Ware filed 9-30-03
MA Town of Wayland filed 9-30-03
MA Town of West Bridgewater filed 11-17-03
MA Town of West Brookfield filed 9-30-03
MA Town of Weymouth filed 11-17-03
MA Town of Wilmington filed 11-17-03
MA Town of Yarmouth filed 11-17-03
MA United Methodist Church (Wellfleet, MA) filed 9-30-03
MA Water Supply District of Acton filed 4-21-04
MA Westport Federal Credit Union filed 11-17-03
MA Westview Farm, Inc. (Monson, MA) filed 9-30-03
NH City of Dover filed 11-20-03
NH City of Portsmouth filed 10-24-03
NH State of New Hampshire filed 9-30-03
NJ Thoedore Holten, et al * filed 08-25-00
NJ Borough of Penns Grove filed 10-23-03
NJ City of Bridgeton filed 10-23-03
NJ City of Camden filed 10-23-03
NJ City of Gloucester City filed 10-23-03
NJ City of Winslow filed 11-20-03
NJ Elizabethtown Water Company filed 10-23-03
NJ Little Egg Harbor Township filed 11-21-03
NJ Mount Holly Water Company filed 10-23-03
NJ Mount Laurel Municipal Utilities Authority filed 10-23-03
NJ New Jersey American Water Company, Inc. filed 10-23-03
NJ Penns Grove Water Supply Company, Inc. filed 10-23-03
NJ Point Pleasant filed 11-21-03
NJ Southeast Morris County Municipal Utilities Authority filed 4-28-04
NJ Township of Montclair filed 11-17-03
NJ United Water Arlington Hills, Inc. filed 11-17-03
NJ United Water Hampton, Inc. filed 11-17-03
NJ United Water New Jersey, Inc. filed 11-17-03
NJ United Water Toms River, Inc. filed 11-17-03
NJ United Water Vernon Hills, Inc. filed 11-17-03
NY Franklin Square Water District filed 11-14-03
NY Great Neck North filed 10-28-03
NY Hicksville filed 1-23-04
NY Long Island Water Corporation filed 10-15-03
NY Nassau County filed 9-30-03
NY Port Washington Water District filed 11-07-03
NY Rosyln Water District filed 4-28-04
NY Suffolk County filed 10/2002
NY Town of Wappinger files 4-28-04
NY United Water New York, Inc. filed 11-10-03
NY Village of Pawling filed 11-18-03
NY Village of Sands Point filed 11-05-03
NY Western Nassau Water Authority filed 10-02-03
NY Village of Mineola unknown
NY Village of Hempstead unknown
NY West Hempstead Water District unknown
NY Town of South Hampton unknown
NY Town of East Hampton unknown
NY Carle Place Water District unknown
NY Westbury Water District unknown
NY Plainview Water Distrct unknown
NY Christ the King Catholic Church (Queens) unknown
NC Bobbie Adams, et al * filed 8-15-03
PA Northhampton Bucks County filed 3-11-04
VT Craftsbury Fire District #2 filed 1-12-04
VT Town of Hartland filed 11-18-03
VA Buchanan County School Board filed 11-10-03
VA Greensville County Water & Sewer Authority filed 11-17-03
VA Patrick County School Board filed 10-30-03
WV Matoaka filed 1-20-04

* Lawsuits that pre-date the deadline specified in the legislation but are still pending

Source: Environmental Working Group. Data on MTBE lawsuits obtained from court records and law firms representing communities. Information on MTBE contamination is derived from data obtained from state agencies under the Federal Freedom of Information Act or state public records laws. Data were unavailable for some states; other states reported no MTBE detections. Some states currently do not require reporting of MTBE detections.

 

DeLay Champions Polluters, Not Voters

DeLay Champions Big Oil Polluters Instead of his Constituents

House Speaker Tom DeLay (R-TX) has pushed hard for the MtBE liability shield for oil and chemical companies. Even though his Big Oil Bailout would eliminate his constituents' rights to sue Big Oil for knowingly contaminating their groundwater, DeLay sides with the oil and chemical companies that lobbied to have MtBE put in the water in the first place. The following are excerpts from news stories on DeLay's push shield big oil companies from legal accountability.

 

Excerpts

"In a controversial move, the House bill also reintroduces a provision that protects oil companies from lawsuits on the gasoline additive called MTBE, a provision that was a dealbreaker for the Senate in the 108th Congress. The provision is strongly backed by House majority leader Tom DeLay, whose Texas district includes MTBE production, as well as House energy chairman Barton."

Christian Science Monitor, April 5, 2005, Oil cost stokes push for policy
By Gail Russell Chaddock

 

"House Majority Leader Tom DeLay, R-Sugar Land, and Energy and Commerce Committee Chairman Joe Barton, R-Ennis, have been adamant about keeping that provision in the bill."

The Houston Chronicle, February 10, 2005
Congress jump-starts energy bill for Bush; House version contains MTBE liability shield"
By David Ivanovich

 

"Barton and House Majority Leader Tom DeLay, R-Texas, have been pushing to add a provision to the national energy bill that would shield oil companies from multimillion-dollar lawsuits that claim that MTBE is a defective product."

Fort Worth Star-Telegram, March 12, 2005
Proposal to shield oil companies stalls energy bill
By Scott Streater

 

EWG Statement on NPRA Propaganda

FOR IMMEDIATE RELEASE: April 11, 2005
CONTACT: EWG Action Fund Public Affairs, 202-667-6982

 

Environmental Working Group's Response
to the National Petrochemical & Refiners Association on Congress' Proposed MTBE Accountability Shield

 

 

(WASHINGTON, April 11) — The NPRA's propaganda about our report is painstakingly crafted to confuse the issues, but it makes one thing perfectly clear: The oil industry is desperate to get the accountability shield, and scared of the facts that have already forced them to pay more than $250 million to two California communities whose drinking water was contaminated by MTBE.

 

The oil industry is running from a 25 year paper trail that first surfaced in court documents, and was made public by EWG in 2002. This evidence against the oil companies includes hundreds of pages of internal industry documents showing that the industry knew as early as 1979 that MTBE posed an extraordinary threat to groundwater, aggressively promoted it to the EPA and state agencies as a safe and effective oxygenate, and ignored its own employees' warnings that continued use of the additive would make them liable for cleanup in hundreds of communities.

Our report never claimed that Tom DeLay's liability waiver would give the oil companies immunity from all lawsuits — only those holding them responsible for making and distributing an inherently defective product. But this is precisely the argument that carried the day in the two cases the industry has agreed to settle. The industry is saying: "We're not going to stop you from suing — we just want to make sure you can't win."

The NPRA cites lots of criticism of EWG from industry-funded shills like the American Council on Science and Health, which never met a chemical it thinks is harmful, and government agencies who, not surprisingly, object to EWG studies showing they're doing a poor job of protecting public health. But the NPRA can't answer this question: If court decisions are going in their favor, if MTBE contamination is trending down, and if DeLay's energy bill will make taxpayers pay for the cleanup anyway — why, exactly, does the industry want this waiver so desperately?

 

 

# # #

EWG Action Fund is a legislative advocacy organization that is related to EWG. EWG and EWG Action Fund use the power of information to protect human health and the environment.

 

EWG Letters to NJ, CA Members

EWG Action Fund Asks U.S. Representatives To Take A Stand On MTBE

EWG has sent letters similar to the one below to the following members of Congress who voted in 2003 to protect oil companies from MTBE lawsuits. These Reps represent communities that have subsequently sued those companies over MTBE-contaminated drinking water.

NEW JERSEY
House Members Mike Ferguson (NJ-7), Rodney P. Frelinghuysen (NJ-11), and Scott Garrett (NJ-5).

CALIFORNIA
House Members Wally Herger (CA-2), John T. Doolittle (CA-4), Richard W. Pombo (CA-11), Dennis A. Cardoza (CA-18), Devin Nunes (CA-21), William M. Thomas (CA-22), Elton Gallegly (CA-24), Howard P. "Buck" McKeon (CA-25), Gary G. Miller (CA-42), Ken Calvert (CA-44), Christopher Cox (CA-48).

 

April 13, 2005

Honorable [NAME]
U.S. House of Representatives
2442 Rayburn House Office Building
Washington, DC 20515

Dear Congressman [NAME]:

At the behest of House Majority Leader Tom DeLay, you voted in 2003 for an energy bill that shielded oil companies from accountability for contaminating drinking water supplies across the country with the toxic gasoline additive MTBE.

Since your vote to support the bill, water utilities serving your constituents have gone to court to force oil companies to pay for MTBE cleanup of their drinking water wells. Just a few drops of MTBE, methyl tertiary butyl ether, make water undrinkable. Because it is so foul, water providers remove MTBE before it reaches family faucets — and the question of who should bear those costs again rests in your hands. A 25-year trail of internal industry documents and congressional committee reports shows that oil companies were not forced to adopt MTBE as a gasoline additive. Instead, the companies knew that MTBE would pollute water supplies, but they lobbied the Environmental Protection Agency (EPA) for permission to use it anyway.

Debate on the full Energy Bill is expected next week, and Mr. DeLay is pushing hard again to protect big oil companies at the expense of the people you represent. A vote for DeLay

 

View Letter

The U.S. Conference of Mayors
National League of Cities
National Association of Counties
National Association of Towns and Townships
Association of Metropolitan Water Agencies
American Water Works Association
Association of California Water Agencies
Western Coalition of Arid States
American Public Works Association
National Water Resources Association

April 5, 2005

Oppose the MTBE Liability Waiver!

Dear Members of the House Energy and Commerce Committee:

The undersigned organizations — representing thousands of mayors, city council members, county officials, towns and townships, drinking water systems and public works departments — reiterate our strong opposition to providing product liability immunity to the producers of MTBE.

The liability waiver amounts to a massive unfunded mandate on local governments and citizens.

MTBE producers, according to documents in recent litigation, put this contaminant into commerce knowing it could contaminate drinking water supplies. Under the MTBE product liability waiver, these producers would be rendered unaccountable.

Thousands of water sources have been contaminated, and as MTBE spreads, more and more communities will be forced to shut down wells or undertake a costly cleanup program.

Here are some important facts to remember:

  1. 1. MTBE was never mandated, and Congress is not obligated to provide the producers
  2. 2. One estimate by experts puts the cleanup cost in excess of $29 billion.
  3. 3. The liability waiver would retroactively block hundreds of communities' legitimate suits that have been filed already and could preempt hundreds more, leaving communities with a multi-billion dollar unfunded mandate from Congress.
  4. 4. The Leaking Underground Storage Tank fund was not intended to address the overwhelming amount of contamination communities are experiencing. Moreover, taxpayers should not pay for MTBE cleanup.

Please oppose the MTBE liability waiver.

Sincerely,

Tom Cochran, Executive Director, The U.S. Conference of Mayors Donald J. Borut, Executive Director, National League of Cities
Larry Naake, Executive Director, National Association of Counties Allen R. Frischkorn Jr., Executive Director, National Association of Towns and Townships
Diane VanDe Hei, Executive Director, Association of Metropolitan Water Agencies Jack Hoffbuhr, Executive Director, American Water Works Association
Steve Hall, Executive Director, Association of California Water Agencies Peter B. King, Executive Director, American Public Works Association
Larry Libeu, President, Western Coalition of Arid States Thomas F. Donnelly, Executive VP National Water Resources Association

References: 

  1. Center for Responsive Politics 2005. Campaign Contributions Database, 2004 Election Cycle. www.opensecrets.org.
  2. Chemical Week 2005. House Takes Up Energy Bill for Reconsideration. Feb. 16, 2005.
  3. Curtius, Mary 1995. With DeLay in the Spotlight, Republicans Feeling the Heat. Los Angeles Times. March 20, 1995.
  4. Franz, Neil 2002. Refiners Step Up Search for MTBE Replacements. Chemical Week, Oct. 16, 2002.
  5. Freedonia 2004. Gasoline & Other Fuel Additives to 2008. The Freedonia Group, Nov. 1, 2004. www.freedoniagroup.com.
  6. U.S. House of Representatives 1995. Committee on Commerce. Memorandum to: Members, Subcommittee on Oversight and Investigations. Re: June 7, 1995 Hearing on Implementation of the Reformulated Gasoline Program Under Title II of the 1990 Clean Air Act Amendments. June 6, 1995.
Key Issues: