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Reunion in Salem: Updating the MTBE Controversy

September 2006

Citation: 36 ELR 10667

Issue: 9

Author: Richard O. Faulk & John S. Gray

Concerned about groundwater contamination and the potential health effects of methyl tertiary butyl ether (MTBE), a gasoline additive used to curtail air pollution, several states have banned its use. Similarly, MTBE has been the subject of a great deal of litigation. And while the Energy Policy Act of 2005 did not ban MTBE outright, it eliminated the federal oxygenate requirement for gasoline, thereby making the additive unnecessary. But according to Richard Faulk and John Gray, the controversy surrounding MTBE is greatly exaggerated. Moreover, MTBE represents only about 11% of the dangerous chemicals in gasoline that leak from USTs into groundwater. Banning MTBE and rushing to the courts does nothing to address the remaining 89% of the chemicals contained in gasoline that are released from USTs when there is a leak. Below, Faulk and Gray argue that instead of subjecting MTBE to a witch hunt, more energy should be spent enforcing the UST program so that past leaks are cleaned up and future ones do not occur.

 

Richard Faulk is Partner and Environmental Practice Group Leader, Gardere Wynne Sewell L.L.P., Houston, Texas. He received his J.D. from Southern Methodist University in 1977. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, and a recipient of the William H. Burton Award for Legal Achievement, issued by the Library of Congress on June 17, 2003. He is also a member of the Texas Association of Civil Trial and Appellate Specialists. John Gray is Partner, Gardere Wynne Sewell L.L.P., Houston, Texas. He received his J.D. from Southern Methodist University in 1995 and his M.B.A. from the University of Notre Dame in 1990. He is also a registered professional engineer. The opinions set forth in this Article are solely those of the authors. The authors have defended numerous MTBE cases. Previous versions of this Article have been published elsewhere and are reprinted with permission.

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