Legal Issues

As the danger of MTBE contaminating the ground waters increases, several laws have been passed dealing with the subject of MTBE or personal watercraft (PWC). On one hand, the U.S. government is trying to preserve the nation’s air quality by enforcing the Clean Air Act, which is the addition of oxygenates to gasoline (such as MTBE and ethanol). But on the other hand, these additives can cause water pollution, endangering marine life and our health. A satisfactory compromise is yet to be found. In the following paragraphs, the Clean Air Act, the Clean Water Act, the MTBE Ban in California, and the Jet Ski Ban are closely examined. In addition, the situation in the United States is compared to Europe, and we will dare to have a look on possible laws for the future.

 Clean Water Act

Passed in 1972 in response to extensive water pollution and growing public concern, the Clean Water Act is a U.S. law protecting the rivers, lakes, aquifers and coastal areas of the United States. The basic goals are to restore and maintain a good water condition by eliminating the discharge of pollutants and achieving higher water quality levels. In addition, it requires major industries to meet performance standards to guarantee pollution control. It also charges states with setting specific water quality requirements.

Basically there are two main sources causing water pollution that we focus on:  leaking storage tanks (LUST) and many chemicals that are contained in gasoline, including the highly soluble MTBE. Since this additive is not easily broken down and travels faster and farther than any other gasoline component, it can have a dangerous effect on ground and surface waters. Even small amounts of MTBE, which has a strong taste and odor, can make a water supply distasteful. Although MTBE has mostly been detected in small amounts, a high concentration may pose a public health threat. Being in charge of most environmental issues in the United States, the Environmental Protection Agency has issued an advisory level for taste and odor of 20-40 parts per billion (ppb) and commissioned a Blue Ribbon Panel on MTBE and oxygenates in gasoline with the aim to substantially reduce the use of MTBE.

Clean Air Act

The Clean Air Act (CAA), passed in 1975, is a wide-range Federal law that regulates air emissions and authorizes the EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment.

The original goal of the Clean Air Act was to achieve the NAAQS requirements in every state by 1975 as well as to set a maximum, individual pollution standard for each state. New amendments were added as it turned out that many areas had failed to meet the intended deadlines. The 1990 amendments aimed to meet either problems that were not addressed or those that were inadequately addressed, including acid rain, ozone and air toxics. One consequence of the new amendment was that Congress required areas with the worst ozone smog problems to use reformulated gasoline with an increased oxygen content of 2% by weight that is supposed to reduce air pollution. Adding oxygen to gasoline is achieved by adding additives, such as MTBE. Eighty-seven percent of the RFG contains MTBE as oxygenate with the renewable biomass fuel ethanol taking second place. The mandate of 1990 had a great impact on the gasoline industry. Today 4.5 billion gallons of MTBE are used in gasoline each year (275,000 barrels per day out of a total of 8.2 million barrels/day of gasoline), which is an increase of more than 300% since 1900.

Reformulated Gasoline is currently used in 17 states and the District of Columbia.  Some states have chosen RFG voluntarily to help achieve their clean air goals, while some states were forced to introduce RFG by congressional mandate. Of the areas listed below, only Milwaukee and Chicago use primarily ethanol instead of MTBE.

Areas that are required to use RFG include Los Angeles, California, San Diego, California, Hartford, Connecticut, New York City, Greater Philadelphia, Chicago, Baltimore, Maryland, Houston, Texas, Milwaukee, Wisconsin, and Sacramento California.

Areas that have voluntarily chosen to use RFG include the state of Connecticut (the portion not part of NYC), the state of Delaware (that portion not part of Philadelphia), the District of Columbia, Kentucky, portions of the Cincinnati Metropolitan Area, Louisville, Kentucky, the DC suburbs and tow other counties in Maryland, the state of Massachusetts, St. Louis, Missouri, the New Hampshire portion of Greater Boston, the state of New Jersey (the portion not part of NYC and Philadelphia), New York counties near NYC, the state of Rhode Island, the Dallas-Fort Worth area in Texas, and the DC suburbs, Richmond, and Norfolk-Virginia Beach- Newport News in Virginia.

In conclusion, it can be stated that the use of the critical substance MTBE has cleaned up the nation’s air, but it also has wreaked havoc on the groundwater aquifers. On March 20th, 2000, EPA Administrator Carol Browner and Agricultural Secretary Dan Glickman published a proposal to eliminate the use of MTBE as a gasoline additive and encourage the use of renewable biomass fuels such as ethanol. Along with the designed legislation was a regulatory plan for EPA to ban MTBE through the Toxic Substances Control Act. These ambitions go along with the Panel's plan to replace the 2% rule with a renewable fuel annual average for all gasolines at a level maintaining the current level (1.2 % of gasoline supply) and allow growth over the next decade.

MTBE Ban in California

During the on-going discussion about MTBE and other environmental issues, California is often referred to.  As the number of environmental incidents involving MTBE increased, the state government saw the necessity to respond and therefore enacted four bills addressing this fuel additive and other oxygenates in October 1997. This has a great impact on the selling and operation of PWCs in the state. On December 20th, 1999, the California Air Resources Board approved gasoline standards eliminating the additive methyl-tertiary-butyl-ether (MTBE), as well as making California's clean gasoline even cleaner. The new rules, known officially as the Phase 3 gasoline regulation, CaRFG3, prohibit the formulation of gasoline with MTBE after December 31, 2002. In addition, an out-of court settlement has been reached by the CARB that will remove all conventional jet-skis from the market in California by 2006. This would make California the first state to require that manufacturers equip new personal watercraft with cleaner direct-injection engines.

These new regulations are based on a study by the University of California, Davis which dealt with human health concerns, environmental risks and benefits of MTBE, and alternative fuel oxygenates. The UC Davis study concluded that MTBE and other oxygenates “were found to have no significant effect on exhaust emissions from advanced technology vehicles”, compared to gasoline without MTBE content. According to the study, no important additional air quality benefit could be found and furthermore, significant costs and risks are associated with water contamination due the use of MTBE. If the use of MTBE was continued and more and more water resources became polluted, the consequences of potential water shortages during droughts would be worsened. It also talked explicitly about the harmful effects on surface waters caused by the use of two-stroke motor boat engines. Finally, an economic analysis brought to light that non-oxygenated CaRFG2 achieves air quality benefits at the least cost, followed by gasoline with ethanol as additive.

Referring to this study, California’s Governor Gray Davis urged President Bush to direct the EPA to grant California’s request for a waiver of the federal minimum oxygen requirement through the Clean Air Act. He argues that without this waiver, California customers would have to pay $450 million more a year for RFG. A waiver would also allow refiners and marketers to “use reduced quantities of ethanol during periods of time when supplies of CaRFG2 are inadequate to meet demand.”

Jet Ski Ban

As the number of accidents, environmental concerns, injuries, and the sales rate of personal watercraft increase, state governments and the federal government are considering a ban of Jet Skis. Maine and Vermont have already banned PWCs on lakes smaller than a designated size of 300 acres and 200 acres respectively, and all National Parks do not allow this type of PWC anymore. Maine also allows citizens to file private nuisance suits if harassed by PWC activity.

Some other local communities have already either partially or completely banned PWCs:

• Lake Tahoe, California
• San Juan County, Washington State<
• San Francisco County, California
• Mendocino County, California
• Pacifica, California
• City of Malibu, California
• Monroe County, Florida
• Walton County, Florida

MTBE Elimination Act 2006

U.S. Senator Fitzgerald proposed legislation to ban the hazardous fuel additive MTBE. Instead, he promotes the use of ethanol as an alternative. The Act would completely phase out the hazardous fuel additive in the next three years. The bill also requires that the gasoline containing MTBE should be labeled.

Other senators favor eliminating MTBE too, but with the repealing of the oxygenates requirement the provision in the Clean Air Act, it mandates the production of reformulated gasoline. But the problem is MTBE, not the oxygenates. It would be possible to use Ethanol instead of MTBE. Replacing MTBE nationwide could boost farm income by more than $1 billion and create 13,000 new jobs in the USA. Summary of all bills passed by Congress with regard to air and water quality:

MTBE Ban: Europe in brief

There are several differences to be found in comparing the danger of MTBE contamination of drinking water in the U.S. to the situation in Europe. The MTBE content in European gasoline average is 2%-3%, as opposed to 12% in California.Because of higher safety standards, pipelines and gas stations are less likely to leak, and therefore most of the European governments are not too concerned about potential dangers caused by MTBE. A ban of MTBE was discussed, but using Finland as example, it was said that MTBE was not a public health threat. MTBE is not classified as dangerous substance throughout the EU (European Union) and the existing Substances Regulations, states the German "Umweltbundesamt" (Federal Office for  Environmental Protection). The conclusion was that a widespread contamination on the same scale as in the U.S. is unlikely.

In Europe, however, special taxes on gasoline ensure that the price of petrol maintains at a high level compared to the U.S. in order to force more people to use public transportation systems. Germany charges an additional 10% to the gasoline price through the effects of the "Oekosteuer" (Ecological tax), which means that German customers pay about twice as much for their gas compared to American citizens. The government also agreed to increase the gasoline price continuously over the next few years. A radical attempt by the German party, the Greens that are part of the government coalition, to charge 5DM per liter (approx. $ 8.4 per gallon) failed, only for the time being.