STATEMENT BY CALIFORNIA SENATOR BARBARA BOXER
November 18, 2003
I am here today to talk about an outrageous special interest gift in this energy bill.
The energy bill contains a "Get Out of Jail Free" card for big corporations who pollute our drinking water.
The MTBE liability waiver in this bill would shield oil companies from having to pay clean-up costs if they pollute drinking water supplies with MTBE, and stick taxpayers with a huge bill. This waiver would retroactively waive liability for all design defect claims, including design defect where the inherent risks of a product outweigh its benefits. It would also offer immunity from failure to warn claims.
To date, MTBE has been detected in more than 1,500 public drinking water systems in 29 states in the country, and has been found in groundwater in virtually every state. In California alone, MTBE has been found in 127 water systems, which service more than 30 million people.
When leaked into water, MTBE causes water to take on the taste and smell of turpentine, rendering it undrinkable.
The potential health problems associated with MTBE exposure include liver damage, vomiting, fatigue, and skin irritation in the short run. The chronic effects are even more disturbing. MTBE is a suspected carcinogen, and has been linked with leukemia, lymphoma and testicular cancer.
It may also cause or exacerbate developmental and neurological problems, and kidney and liver disorders.
Moreover, it is nearly impossible, and very expensive, to remove MTBE from water supplies once they become contaminated.
The MTBE industry's claim that that it uses MTBE because Congress mandated it in the 1990 Clean Air Act amendments is false. Oil companies began adding MTBE to gasoline as early as 1979.
The Clean Air Act requires the use of oxygenates in gasoline to make gas burn cleaner. But it in no way specifies that MTBE must be the oxygenate used.
Supporters of this liability waiver claim it offers immunity from only one type of lawsuit.
But product defect claims are the clearest way to hold manufacturers accountable when their products cause injury to public health or the environment. Litigation in California and other states involving drinking water contamination by MTBE rest on claims that products were defective in design.
In the landmark Lake Tahoe case, a jury found MTBE to be a "defective product." The jury also found oil companies acted with "malice" because they were aware of the dangers but withheld the information. The defendants settled for $69 million soon after the jury verdict was announced. The bad behavior that occurred in Lake Tahoe on the part of polluters is exactly what this report will shield from liability.
What would have happened if defective product claims could not have been made in Tahoe? Lake Tahoe and its citizens would have been forced to bear the clean up costs, while the polluters got off scot-free.
Supporters of this unfunded mandate also argue that negligence claims are an adequate substitute
for product liability design defect claims. While negligence and design defect liability are related
legal theories, negligence is inadequate to protect a community from harm.
In fact, in the Tahoe litigation, the judge threw out the negligence and nuisance causes of action; the only claim that survived was product liability design defect.
MTBE should be subject to liability standards as strong as any other consumer product. It's bad public policy to put special interests above public health concerns.
MTBE pollution has forced the city of Santa Monica to shut down seven of its eleven water wells. Santa Monica lost half their water supply to MTBE contamination. The estimated cost of cleaning up that disaster is between $200 and $400 million.
Wells have been lost in other California communities, including San Francisco, Los Angeles, Sacramento, Riverside, and San Diego, to name just a few. Potential cleanup costs in California are estimated to be approximately $2 billion. The cost to clean up MTBE contamination nationwide is estimated to beat least $29 billion.
The oil companies knew of the risks MTBE posed. They also knew there were alternatives to MTBE. Yet, they chose to use MTBE and not to warn anyone else of the risks.
This liability waiver is a huge unfunded mandate that we all should oppose.
Companies need to be held accountable when their product or their misconduct cause the public harm. Otherwise, what's to keep our communities safe?"
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