Barnett v. BP Prods. N. Am.,
Inc., 2006 NCBC 9
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STATE OF |
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 01 CVS 1271 |
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BOBBIE ADAMS, TINA ADAMS, individually and as
Guardian Ad Litem of CODY ADAMS and LINDSEY ADAMS,
MARJORIE G. ADAMS, ROY THOMAS ADAMS, ROBBIE ADAMS, ANEDA ADAMS, individually
and as Guardian Ad Litem of DANIEL ADAMS and DREW ADAMS,
ELIZABETH BEALL, individually and as Guardian Ad Litem
of AMBER N. ENGLEBY, NATHAN TOMMY GOLDEN, MARTHA A.BELL, individually and as
Guardian Ad Litem of CHRIS BELL, SUNNY HERRING, ELTON GUY BELL, JR., DAVID
PRESTON BELL, DAVID CARY BROOKS, STEPHANIE DANIELS, individually and as
Guardian Ad Litem of CHARLES DANIELS, DARRIN
DANIELS, AMBER DANIELS, DALLAS FRAZIER, and KRISTEN FRAZIER, MARVIN FRAZIER,
NAN MORTON FIELDS, DAVID FIELDS, SAMANTHA FIELDS, TROY FIELDS, VICTORIA S. GAMBLE, ROSEANNE COLÓN, SHEILA COLÓN, MARGUERITE GUTHRIE GILLIKIN,
ANNA KIM MORTON HADLEY, individually and as Guardian Ad Litem
of NICHOLAS SCOTT HADLEY, COREY ALLEN HADLEY, FRANKLIN LEE JENKINS,
ALBERT C. LEWIS, JR., MARGARET J.
LEWIS, CHRISTEL ANN LEWIS GEIER, JACKOLINE S. LEWIS, FRONIE LEWIS, JOE LEWIS,
individually and as Guardian Ad Litem of CHELSEA
LEWIS, SHARON GARNER, individually and as Guardian Ad Litem
of JOHN SALTER and BRANDON SALTER,
NATASHA SALTER, JUDY McNAMARA, CHARLES
MIZELLE, individually and as Guardian Ad Litem of
CARLA DANETTE MIZELLE, DONNA MIZELLE,
ANTHONY R. MORTON, individually and as Guardian Ad Litem
of JACOB T. MORTON, SOMMER L. MORTON, DANNY MARK MORTON, individually and as
Guardian Ad Litem of VICTORIA LYNN MORTON, DANIELLE
MARIE MORTON, GURTHEY MORTON, MILON C. MORTON, SR., SHEILA MORTON, MILON C.
MORTON, JR., THURMAN G. MORTON, JR., individually and as Guardian Ad Litem of MATTHEW MORTON, JONI M. MORTON, JULIE SYKES,
individually and as Guardian Ad Litem of MIKAYLA
SYKES, VERNON MORTON, NANCY MORTON, VIRGINIA B. MORTON, ROBERT J. NOLAN, DEBORAH A. NOLAN,
ROBERT L. NOLAN, DANIEL NOLAN, DOUGLAS NORRIS, LOU ANN NORRIS, ANDREA NORRIS,
RICHARD NORRIS, individually and as Guardian Ad Litem
of BRANDON NORRIS and LYDIA NORRIS, NANCY NORRIS, STEPHANIE NORRIS, EMMA P.
O’NEAL, GREGORY RIGGS, individually and as Guardian Ad Litem
of ASHLEY B. RIGGS and SONYA WILLIAMSON, individually and as Guardian Ad Litem of APRIL MOLOSKY, KYLE D. SAWYERS, LOIS SAWYERS,
DONALD W. SHOPTAUGH, CHERYL SHOPTAUGH, individually and as Guardian Ad Litem of FAITH D. SHOPTAUGH, CASEY A. SHOPTAUGH, ANDREW
E. SHOPTAUGH, LOLA G. SMITH, FRANCINE WINBERRY, PAUL R. SMITH, individually
and as Guardian Ad Litem of PAUL R. SMITH,
JR., CONNIE T. SMITH, individually and
as Guardian Ad Litem of CAMERON
S. THOMPSON, SHERRI SMITH, JAMES ANDREW SMITH, JUDI FARLOW, JERRY E.
TAYLOR, SR., LAVERNE S. TAYLOR, JERRY TAYLOR, JR., RICHARD TAYLOR, and JENNIFER VanDEVOORD, Plaintiffs, v. A. J. BALLARD, JR. TIRE & OIL COMPANY,
INCORPORATED, JOYCE D. BALLARD, individually, as trustee for ALBERT
CHRISTOPHER BALLARD, and as executrix of the estate of Albert J. Ballard, Jr., ALBERT
CHRISTOPHER BALLARD, GARY ALLEN BALLARD, and FISHER STORES, INC., Defendants. |
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STATE
OF |
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 03 CVS 912 |
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BOBBIE ADAMS, TINA ADAMS, individually and as
Guardian Ad Litem of CODY ADAMS and LINDSEY ADAMS, MARJORIE
G. ADAMS, ROY THOMAS ADAMS, ROBBIE ADAMS, ANEDA ADAMS, individually and
as Guardian Ad Litem of DANIEL ADAMS and DREW
ADAMS, ELIZABETH BEALL, individually and as Guardian Ad Litem
of AMBER N. ENGLEBY, NATHAN TOMMY GOLDEN, MARTHA A. BELL, individually and as
Guardian Ad Litem of CHRIS BELL, SUNNY HERRING, ELTON GUY BELL, JR., DAVID
PRESTON BELL, DAVID CARY BROOKS, CLARENCE DANIELS, CLAUDIA DANIELS,
CHRISTOPHER SCOTT DANIELS, CHRISTIE CANNON, CHARLES DANIELS, STEPHANIE
DANIELS, individually and as Guardian Ad Litem of
CHARLES A. DANIELS, DARRIN DANIELS, AMBER DANIELS, DALLAS FRAZIER, and
KRISTEN FRAZIER, MARVIN FRAZIER, FREDERICK SHAWN DEFEO, JENNIFER MARIE DEFEO,
individually and as Guardian Ad Litem of DAVID
SHANE DEFEO, NAN MORTON FIELDS, DAVID FIELDS, SAMANTHA FIELDS, TROY FIELDS,
VICTORIA S. GAMBLE, SHEILA COLON, ROSEANNE COLON, MARGUERITE GUTHRIE
GILLIKIN, WALLACE A. GUTHRIE, SR.,
MARILYN W. GUTHRIE, WALLACE A. GUTHRIE, JR., ELAINA B. GUTHRIE, ANNA KIM MORTON
HADLEY, individually and as Guardian Ad Litem of
NICHOLAS SCOTT HADLEY, COREY ALLEN HADLEY, BRETT HARSTINE, individually and
as Guardian Ad Litem of TYLER HARSTINE AND TALON
HARSTINE, JENNIFER HARSTINE, FRANKLIN LEE JENKINS, individually and as
Guardian Ad Litem of FRANKLIN R. JENKINS and SAMANTHA
WEST, ALBERT C. LEWIS, JR., MARGARET J. LEWIS, CHRISTEL ANN LEWIS GEIER,
CHARLES P. JACOBI, JR., DORIS H. JACOBI, JACKOLINE S. LEWIS, individually and
As Executrix of the Estate of FRONIE
LEWIS, JOE LEWIS, individually and as Guardian Ad Litem
of CHELSEA LEWIS, SHARON GARNER, individually and as Guardian Ad Litem of BRANDON SALTER, JOHN SALTER, JR., NATASHA
SALTER, JUDY McNAMARA, JAMES SCOTT McNAMARA as Guardian Ad Litem
of JAMES SCOTT McNAMARA, JR., TABITHA LYNN McNAMARA, and CODY RAY McNAMARA,
CHARLES MIZELLE, individually and as Guardian Ad Litem
of CARLA DANETTE MIZELLE, DONNA MIZELLE, ANTHONY R. MORTON, individually and
as Guardian Ad Litem of JACOB T. MORTON, SOMMER L.
MORTON, DANNY MARK MORTON, individually and as Guardian Ad Litem of VICTORIA
LYNN MORTON, DANIELLE MARIE MORTON, GURTHEY MORTON, MILON C. MORTON,
SR., SHEILA MORTON, MILON C. MORTON, JR., THURMAN G. MORTON, JR.,
individually and as Guardian Ad Litem of MATTHEW
MORTON, JONI M. MORTON, JULIE SYKES, individually and as Guardian Ad Litem of MIKAYLA SYKES, VERNON MORTON, NANCY
MORTON,VIRGINIA B. MORTON, ANTHONY
MURRAY, WANDA MURRAY, ROBERT A. MURRAY, RONDA E. NIXON, JAMES NIXON, JONATHAN
NIXON, ROBERT J. NOLAN, DEBORAH A. NOLAN, ROBERT L. NOLAN,DANIEL NOLAN,
DOUGLAS NORRIS, LOU ANN NORRIS, ANDREA NORRIS, RICHARD NORRIS, individually
and as Guardian Ad Litem of LYDIA NORRIS, NANCY
NORRIS, BRANDON NORRIS, STEPHANIE SKRABACZ, EMMA P. O’NEAL, GREGORY IGGS,
individually and as Guardian Ad Litem of ASHLEY B.
RIGGS, SONYA WILLIAMSON, individually and as Guardian Ad Litem
of APRIL MOLOSKY, KYLE D. SAWYERS, LOIS SAWYERS, DONALD W. SHOPTAUGH, CHERYL SHOPTAUGH, individually
and as Guardian Ad Litem of FAITH D. SHOPTAUGH,
CASEY A. SHOPTAUGH, ANDREW E. SHOPTAUGH, LOLA G. SMITH, FRANCINE WINBERRY,
PAUL R. SMITH, individually and as Guardian Ad Litem
of PAUL R. SMITH, JR., CONNIE T.
SMITH, individually and as Guardian Ad Litem of
CAMERON S. THOMPSON, SHERRI SMITH,
JAMES ANDREW SMITH, JUDI FARLOW, JOHN R. STEWART, JR., VELMA A. STEWART,
RODNEY CHARLES STEWART, individually and as Guardian Ad Litem
of JORDAN WAYNE STEWART, JENNIFER C. STEWART, JERRY E. TAYLOR, SR., LAVERNE S. TAYLOR, JERRY
TAYLOR, JR., ELIZABETH TAYLOR, individually and as Guardian Ad Litem of FELICIA TAYLOR and SHAINA TAYLOR, RICHARD
TAYLOR, and JENNIFER VANDEVOORD, individually and as Guardian Ad Litem of ALEXIS TAYLOR, KEVIN L. UNDERWOOD, VELMAE.
UNDERWOOD, individually and as Guardian Ad Litem of
KRISTIN N. UNDERWOOD, KEVIN L. UNDERWOOD, JR. and TABITHA L. NIXON, Plaintiffs, v. BP PRODUCTS NORTH AMERICA,
INC.; BP OIL COMPANY; SHELL OIL
COMPANY; EXXON MOBIL CORPORATION; ATLANTIC RICHFIELD COMPANY; SUN OIL
COMPANY; CHEVRON OIL COMPANY; CHEVRON U.S.A, INC.; PHILLIPS PETROLEUM
COMPANY; COLONIAL OIL INDUSTRIES, INC.; COLONIAL TERMINALS, INC; TOSCO
CORPORATION; WACCAMAW TRANSPORT, INC., and BALLARD TRANSPORT, INC., Defendants. |
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STATE
OF |
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 03 CVS 1124 |
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LINDA BARNETT, individually and as Guardian Ad Litem of MEGAN WILLIS, SAMANTHA BARNETT and CHRISTOPHER
BARNETT, and DEANNA L. ECHTMAN, Plaintiffs, v. BP PRODUCTS NORTH AMERICA,
INC.; BP OIL COMPANY; SHELL OIL COMPANY; EXXON
MOBIL CORPORATION;
ATLANTIC RICHFIELD COMPANY;
SUN OIL COMPANY;
CHEVRON OIL COMPANY; CHEVRON U. S. A,
INC.; PHILLIPS PETROLEUM COMPANY; COLONIAL
OIL INDUSTRIES, INC.; COLONIAL TERMINALS, INC; TOSCO
CORPORATION; WACCAMAW TRANSPORT,INC.; and BALLARD TRANSPORT, INC., Defendants. |
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ORDER AND OPINION
{1}
These
cases are before the Court on numerous motions argued over an extensive period
of time. It has taken the Court some time
to get the record in the position it should be for the determination of the
issues by this Court and the appellate courts.
During the course of this litigation a public policy debate over the use
of methyl tertiary-butyl ether (“MTBE”), an additive used to increase oxygen
content in gasoline, has taken place that has delayed the court’s consideration
of the issues until the legislative bodies on the federal and state level had
taken some position on the legislation before them. The issues in these cases are difficult from
a legal perspective, complex from a proof perspective, important from an
environmental standpoint, and riddled with public policy concerns. Not insignificantly, they are important to
the plaintiffs whose well water has been impacted. The outcome of these cases could impact the
retail price of gasoline in this state.
It will also affect the sources of recovery for well owners whose water
supplies are contaminated by leaking underground fuel storage tanks.
{2}
These
cases present three key issues with many subparts. They are:
1) May refiners
be held liable for underground storage tank leaks or spills at sites they do
not own?
2) What causes
of action and statutes of limitation and repose apply to leaks or spills that
contaminate drinking water under adjacent property?
3) What state regulations
determine when drinking water is contaminated?
{3}
Not
all of the defendants are in the same position.
Complaints were filed against different defendants at different times.
The cases originally involved two different sites owned by different defendants
and supplied by different refiners. Not
all of the plaintiffs have similar claims or damages. They have been impacted in different
ways. There are issues that affect some
parties and do not affect others. For
those reasons, the Court will attempt to identify the undisputed facts and
answer the questions that it believes will be of importance to the parties, the
public, and the appellate courts.
Ward and Davis, LLP by Catherine Piwowarski and
Harris, Creech, Ward & Blackerby,
PA by
Tennille,
Judge.
{4}
For
purposes of addressing the issues in some logical fashion, the Court will
describe the parties and the procedural posture of the pending motions and then
follow the outline below.
FACTUAL
AND STRUCTURAL FRAMEWORK
I.
What
is MTBE and why is it used in the refining of some gasoline?
II.
Clean
air v. clean water—what are the public policy concerns?
III.
How
does
IV.
How
does
V.
What
is the factual history of well contamination in the Broad Creek Community?
VI.
What
is the factual history of the Ballard Site?
VII.
What
are the additional relevant facts?
VIII.
What
does the record demonstrate as to the involvement of the individual Ballard
Defendants?
LEGAL
QUESTIONS
I.
Are
refiners that sell gasoline containing MTBE free from liability when that
gasoline is released from USTs as a result of the
negligence of others?
A. May the
proximate causation barrier be overcome by finding “forseeability”
of negligent conduct by owner/operators of USTs?
B. May the
proximate causation barrier be overcome by holding refiners strictly liable for
adding MTBE to gasoline?
C. May the
proximate causation barrier be overcome by applying the products liability
statute? Is summary judgment appropriate
on the issue of whether selling gasoline containing MTBE constitutes negligent
conduct?
II.
What
statutes of limitations and repose apply in this case?
A. Do the
statutes of repose apply to sales of gasoline containing MTBE?
B. What
statutes of limitation apply when gasoline leaks from an UST: (a) as to the refiner
selling the gas, and (b) as to the tank owner/operator responsible for the
leak?
C. If the
statutes of limitation and repose apply, have Plaintiffs raised an issue of
fact with respect to the question of whether a leak occurred at the Ballard
Site within a period not barred by the statute of limitations or the statute of
repose?
III.
Which
state regulated drinking water standards determine the basis for liability in
contamination cases, and what triggers any applicable statute of limitations in
those cases?
IV.
Do
Plaintiffs have a claim that survives summary judgment as to any one of the
Ballard Defendants?
V.
Are
Defendants entitled to summary judgment as a matter of law with respect to the res ipsa,
fraud, nuisance, trespass, willful and wanton negligence, and OPHSCA claims?
SUMMARY OF
DECISIONS
{5}
The
Court has concluded that:
1)
Refiners
who do not own or control retail or wholesale locations are not responsible for
injuries resulting from actions of the owners of the USTs
located at those sites. The intervening
negligence of tank owner/operators insulates refiners from liability.
2)
Even
if refiners are not insulated from liability, the issue of whether or not
refiners are negligent in using MTBE as an oxygenate in gasoline would be an
issue upon which neither side would be entitled to summary judgment.
3)
The
interrelationship between the level of contamination providing the basis for
liability and the triggering of the running of the statute of limitations is
critical. If the contamination level
giving rise to liability were poorly defined, for example by taste or odor, and
the statute of limitations were to start to run when the poorly defined
contamination level is reached, well owners might not get the water tested and
might not be aware of a problem until after the statute of limitations has
run. If the level is more precisely
defined, for example by the maximum allowable concentration levels as defined
by state regulations, and confirmed by testing, the statute of limitations
should not begin to run until the higher levels are confirmed.
4)
The
maximum concentration levels for specific chemicals have been set in health
standards and thus should be reliable in protecting users of the well water.[1] As a corollary, when a well owner ceases to
use her well as a result of perceived contamination of any kind from a
particular source, the statute of limitations should begin to run at that
point.
5)
If
Refiner Defendants were not insulated from liability, the ten-year and six-year
statutes of repose would apply to product liability claims arising out of the
sales of gasoline by the Refiner Defendants and begin to run when the refiners
transfer title to the product to the retailer or wholesaler and bar any claims
arising out of sales outside the repose period.
6)
The
ten-year and six-year statutes of repose apply to product liability claims
against the Ballard Defendants and began to run whenever there was a leak which
resulted in contamination of Plaintiffs’ wells and bar any claims for product
liability arising from leaks or spills outside the repose period.
7)
The
three-year statute of limitations applies to the simple negligence claims
against the Ballard Defendants and begins to run when an injury occurs as
defined below.
8)
The
three-year statute of limitations applies to the trespass and nuisance claims
against the Ballard Defendants and begins to run when an injury occurs as
defined below.
9)
The
state regulations for ground water govern whether a well owner has a claim for
contamination. A cause of action based
upon contamination of well water by a specific chemical does not accrue until
the well owner becomes aware that the concentration levels for that specific
chemical have exceeded state standards.
Accordingly the plaintiffs whose wells have been affected by
contamination from MTBE or benzene above the state levels have a cause of
action which has accrued and which is maintainable if suit was filed within the
applicable statutes of limitation. Those
plaintiffs who were affected by wells which have not evidenced contamination
from MTBE or benzene above state levels do not have a cause of action which has
yet accrued and those claims are subject to dismissal for that reason. Those claims could be asserted later if the
contamination levels exceed permissible levels.
10)
Refiner
liability, if any, would be limited to those wells which, when tested, showed
MTBE present at levels higher than 200 parts per billion (“ppb”), the maximum
allowable concentration as defined by state regulations. The Ballard Defendants’ liability may extend
to wells with other contamination (i.e. benzene) in excess of state
regulations. The specific guidelines for
maximum allowable concentration levels for chemicals specified in the state
regulations are chosen for their certainty and reliability. They provide a bright line test for
contamination based on science. At best,
only three wells used by Plaintiffs have MTBE contamination in excess of levels
permitted by state regulations.
11)
There
is insufficient evidence in this record to establish that the Refiner
Defendants sold product containing MTBE to the Ballard Site within the three-,
six-, or ten-year periods of limitation and repose, which gasoline leaked or
was spilled in a manner causing injury to Plaintiffs’ wells.
12)
There
is sufficient evidence in this record to raise an issue of fact with respect to
whether there were leaks or spills on the Ballard Site which continue to cause
contamination of some wells in the Broad Creek Community, for which some, but
not all, of the Ballard Defendants may be liable. The wells that may have been impacted are
confined to the Central District as defined herein.
13)
All
defendants are entitled to summary judgment on the res ipsa and fraud claims.
14)
With
respect to the 1987 leak at the Ballard Site, the notice provided to Plaintiffs
by DENR was in compliance with state regulations and was sufficient notice of
the existence of a problem to start the statute of limitations running with
respect to claims arising out of that incident.
Accordingly, the statute of limitations has run on claims arising out of
that leak except for claims associated with the failure of the responsible
parties to remediate or for continuing trespass and nuisance.
PARTIES
{6}
Plaintiffs
are citizens and residents, or former citizens and residents, of the Broad
Creek Community, located in
{7}
Defendant
A.J. Ballard, Jr. Tire & Oil Company, Incorporated (“Ballard Tire & Oil
Co.”), is a
{8}
Defendant
A.J. Ballard, Jr. was a citizen and resident of
{9}
Defendant
Joyce D. Ballard is a citizen and resident of
{10}
Defendant
Albert Christopher Ballard is a citizen and resident of
{11}
Defendant
Gary Allen Ballard is a citizen and resident of
{12}
Defendants
A.J. Ballard, Jr., Joyce D. Ballard, Albert Christopher Ballard, and Gary Allen
Ballard will be collectively referred to herein as the “Individual Ballard
Defendants” unless individual treatment is warranted. Defendants Ballard Tire & Oil Co. and the
Individual Ballard Defendants will be collectively referred to herein as the
“Ballard Defendants” unless individual treatment is warranted. At
times relevant to the allegations in the Complaint, various of the
Ballard Defendants were the owners, occupiers, and/or operators of real
property located on Highway 24, Post Office Box 1465, City of Newport, Carteret
County, North Carolina, upon which is located a gas station or facility known
as “First Stop Food Store No. 2,” which sells fuel and other petroleum products. This will sometimes be referred to as the
“Ballard Site”.
{13}
Defendant
BP Products North America, Inc. is a
{14}
Defendant
Atlantic Richfield Company (“ARCO”), at the time the Complaint was filed, was a
{15}
BP
Products North America, Inc., BP Oil Company, and ARCO will hereinafter be
collectively referred to as “Refiner Defendants.” These defendants sold product to the Ballard
Site up until 2002. The other oil
company defendants, who sold to the Fisher Site and the owners of the Fisher
Site, have resolved their disputes with Plaintiffs. Those defendants are no longer parties to
this lawsuit.
{16}
Defendant
Fisher Stores, Inc. (“Fisher Stores”) is a
{17}
Defendant
Shell Oil Company is a
{18}
Defendant
Exxon Mobil Corporation is a
{19}
Defendant
Chevron Oil Company is a
{20}
Defendant
Phillips Petroleum Company is a
{21}
Defendant
Tosco Corporation is a
{22}
Defendant
Sun Oil Company is a
{23}
No
claims remain against the other defendants.
FACTS
I. MTBE: What it is and why it is used in some
gasoline
{24}
Methyl
tertiary-butyl ether (“MTBE”) is a chemical compound produced from the chemical
reaction of methanol and isobutylene.
MTBE is commonly and almost exclusively used as an additive to motor
gasoline and is part of a group of chemicals called “oxygenates,” which
increase oxygen content when added to gasoline. Greater oxygen levels allow gasoline to burn
more completely. More efficient
combustion reduces harmful tailpipe emissions from motor vehicles.
{25}
Gasoline
refiners began using MTBE to replace lead in gasoline in the late 1970s, with
the adoption of the U.S Environmental Protection Agency (“EPA”)’s tetraethyl
lead phase-down program. Prior to the
program’s adoption, approximately 250,000 tons of tetraethyl lead were added
annually to gasoline to increase octane ratings and, consequently, engine
efficiency. Agency for Toxic Substances
and Disease Registry,
{26}
The
U.S. Congress amended the Clean Air Act (“CAA”) in 1990 and in doing so banned
the use of gasoline containing lead or lead additives as fuel in motor
vehicles.
II. Clean
Air v. Clean Water
{27}
The
use of MTBE as an oxygenate in reformulated gasoline has provoked a national
debate. As a result, the EPA appointed
the Blue Ribbon Panel on Oxygenates in Gasoline (the “Blue Ribbon Panel”) in
1998 to investigate the air quality benefits and water quality concerns
associated with oxygenates in gasoline.
The Report of the Blue Ribbon Panel provides a concise summary of the
policy issues posed by the inclusion of MTBE in gasoline products:
The Clean Air Act requires that RFG contain 2% oxygen,
by weight. Over 85% of RFG contains the
oxygenate methyl tertiary butyl ether (MTBE) and approximately 8% contains
ethanol - a domestic fuel-blending stock made from grain and potentially from
recycled biomass waste. There is
disagreement about the precise role of oxygenates in attaining the RFG air
quality benefits although there is evidence from the existing program that
increased use of oxygenates results in reduced carbon monoxide emissions, and
it appears that additives contribute to reductions in aromatics in fuels and
related air benefits. It is possible to
formulate gasoline without oxygenates that can attain similar air toxics
reductions, but less certain that, given current federal RFG requirements, all
fuel blends created without oxygenates could maintain the benefits provided
today by oxygenated RFG.
At the same time, the use of MTBE in the program has
resulted in growing detections of MTBE in drinking water, with between 5% and
10% of drinking water supplies in high oxygenate use areas showing at least
detectable amounts of MTBE. The great
majority of these detections to date have been well below levels of public
health concern, with approximately one percent rising to levels above 20
ppb. Detections at lower levels have,
however, raised consumer taste and odor concerns that have caused water suppliers
to stop using some water supplies and to incur costs of treatment and
remediation. The contaminated wells
include private wells that are less well protected than public drinking water
supplies and not monitored for chemical contamination. There is also evidence of contamination of
surface waters, particularly during summer boating seasons.
The major source of groundwater contamination appears
to be releases from underground gasoline storage systems (UST). These systems have been upgraded over the last
decade, likely resulting in reduced risk of leaks. However, approximately 20% of the storage
systems have not yet been upgraded, and there continue to be reports of
releases from some upgraded systems, due to inadequate design, installation,
maintenance, and/or operation. In
addition, many fuel storage systems (e.g. farms, small above-ground tanks) are
not currently regulated by U.S. EPA.
Beyond groundwater contamination from UST sources, the other major
sources of water contamination appear to be small and large gasoline spills to
ground and surface waters, and recreational water craft - particularly those
with older motors - releasing unburned fuel to surface waters.
Blue
Ribbon Panel, Achieving Clean Air and Clean Water: The Report of the Blue
Ribbon Panel on Oxygenates in Gasoline, at 1-2 (Sept. 15, 1999) (footnote
omitted), available at
http://www.epa.gov/otaq/consumer/fuels/oxypanel/r99021.pdf. The Blue Ribbon Panel summarized its findings
as follows:
Based on its review of the issues, the Panel made the
following overall findings:
· The distribution, use, and combustion of gasoline poses risks to our environment and public health.
· RFG provides considerable air quality improvements and benefits for millions of US citizens.
· The use of MTBE has raised the issue of the effects of both MTBE alone and MTBE in gasoline. This panel was not constituted to perform an independent comprehensive health assessment and has chosen to rely on recent reports by a number of state, national, and international health agencies. What seems clear, however, is that MTBE, due to its persistence and mobility in water, is more likely to contaminate ground and surface water than the other components of gasoline.
· MTBE has been found in a number of water supplies nationwide, primarily causing consumer odor and taste concerns that have led water suppliers to reduce use of those supplies. Incidents of MTBE in drinking water supplies at levels well above EPA and state guidelines and standards have occurred, but are rare. The Panel believes that the occurrence of MTBE in drinking water supplies can and should be substantially reduced.
·
MTBE is currently an integral component of the
{28}
The
debate has not subsided or been resolved. During the last session of Congress,
the entire energy package of legislation was held up by a debate over the
inclusion of a provision which would have eliminated oil company liability for
use of MTBE in reformulated gasoline. See 151 Cong. Rec. H5772 (daily ed. July
13, 2005) (debate on the motion offered by Congresswoman Capps to instruct the
House managers not to agree to a provision limiting MTBE liability for refiners
at the conference meeting on the Energy Policy Act of 2005). That provision was
ultimately eliminated from the legislation.
See Energy Policy Act of 2005,
Pub. L. No. 109-58 (2005). Had it
passed, the claims in this case against the defendant oil companies would have
been barred.
{29}