Accelerated Natural Attenuation of MTBE with Oxygen Release Compound (ORC^®)
Stephen Koenigsberg, Regenesis Bioremediation Products, San Clemente, CA

An Estimate of the National Cost for Remediation of MTBE Releases from Existing Lust Sites
Frank Sweet, ENSR International, Westford, MA

MTBE: Coverage For This "Spreading" Problem
John G. Nevius, Anderson Kill & Olick, P.C., New York, NY

Accelerated Natural Attenuation of MTBE with Oxygen Release Compound (ORC^Ò)

Stephen S. Koenigsberg; Regenesis, 1011 Calle Sombra, San Clemente, CA  92673; Tel: 949-366-8000, Fax: 949-366-8090, Email: skoenigsberg@regenesis.com
Anna Willett, Regenesis, 1011 Calle Sombra, San Clemente, CA  92673; Tel: 949-366-8000, Fax: 949-366-8090, Email: awillett@regenesis.com

Oxygen Release Compound (ORCÒ) is patented formulation of phosphate-intercalated magnesium peroxide that slowly releases oxygen and facilitates the aerobic degradation of a range of environmental contaminants including petroleum hydrocarbons and fuel oxygenates.  Since 1994, ORC has been used on over 8,000 sites worldwide and has been the subject of an extensive body of independent, peer reviewed literature. ORC technology has now been clearly established as a sensible strategy for enhancing natural attenuation on sites where capital and management intensive options are either undesirable or contraindicated. 

With respect to MTBE, as early as 1996, consultants using ORC noticed that MTBE concentrations decreased at a higher than expected rate.  Working on this foundation, a number of subsequent laboratory and field experiments have demonstrated that oxygen can indeed enhance the remediation of MTBE; a concept that has since been verified in other quarters.  At present we have information on over 500 sites where MTBE is the primary or co-contaminant.  Fourteen of these applications are the subject of peer-reviewed publications.  To date, we have inquired on and attempted to examine 86 of the 500 sites. 65% of the sites (56) were too early to evaluate or had insufficient data, leaving a population of 30 sites that could be fully vetted. 

The preliminary results show that 9 sites (25.7%) demonstrated excellent results, 18 sites (51.4%) demonstrated moderate degradation and 7 sites (22.8%) demonstrated poor degradation.  The poor results are of interest in that it is a significantly greater number than the 3% negative performance seen with BTEX remediation on a larger sample size (n= 600). This may be a function of the relative recalcitrance of MTBE degradation, but it may also have a component that relates to the microbial status of the aquifer.  A detailed examination of representative cases will be presented. One such example is as follows.

At a U.S. Coast Guard support facility in Elizabeth City, NC, MTBE was detected in groundwater. The release of petroleum constituents was related to the 10,000-gallon fiberglass underground storage tank (UST) and a series of underground transfer lines used to deliver JP-4 and JP-5 jet fuel to the aircrafts at the facility. ORC was applied via direct push technology into both the source area and dissolved plume area. Each ORC application was designed to satisfy oxygen requirements for MTBE and BTEX biodegradation and other naturally occurring oxygen sinks in the aquifer. Post treatment monitoring of the aquifer quality parameters indicated effective enhancement of biological activity and substantial decrease in dissolved MTBE and BTEX concentrations. Maximum MTBE concentrations of 510 ppb in the source area and 390 ppb in the plume area were recorded prior to treatment. The MTBE concentrations in both source and plume areas decreased to below quantifiable limits approximately 3 months after treatment. After seven months, the dissolved MTBE mass was reduced 100%, and subsequent monitoring events have shown no rebound in MTBE concentrations.

An Estimate of the National Cost for Remediation of MTBE Releases from Existing Lust Sites

Frank Sweet, P.G., Mark D. Kauffman, P.E., Tabatha Pellerin, P.E., Dave Espy, P.G., Mike Mills, PhD, ENSR International, Westford, MA

Methyl tertiary butyl ether (MTBE) is an oxygenated gasoline additive that has been used in the U.S. since the late 1970s.  Gasoline from leaking underground storage tanks (LUSTs) can contaminate soil and groundwater with a range of petroleum hydrocarbons and gasoline additives such as MTBE.  This study compiles available published literature to quantify the cost of MTBE remediation.  Most available sources provide an estimate of either the number of LUST sites across the US or an estimated cost to remediate LUST sites, but few sources contain both of these essential parameters.  This paper compiles key parameters from an array of published sources to quantify an overall national cost of MTBE remediation, separate from remediation costs that do not include MTBE.  In addition, our internal experience with actual data, including investigation and remediation projects for retail petroleum clients across the US, was used to supplement and validate information obtained from published data sources.  Available state-specific data relative to the numbers of sites, cleanup levels, and costs were compiled and statistically interpreted.  The development of this study included a limited external peer review, by a team who then participated in public panel discussions.  Through this process the research and results were subsequently expanded to include a sensitivity analysis and estimate of the total cost to remediate the nation’s existing LUST sites as well as a clearer description of the study limitations.

MTBE:  Coverage for this “Spreading” Problem

John G. Nevius, Esq., P.E., Anderson Kill & Olick, P.C., 1251 Avenue of the Americas, New York, New York 10020-1128, Tel: 212-278-1508, Fax: 212-278-1733, Email: jnevius@AndersonKill.com

Environmental professionals need to understand the legal issues involving MTBE-related claims and insurance coverage.  Legal actions involving MTBE contamination are on the rise.  Throughout the United States, litigation has included MTBE claims based on negligence, conspiracy, property damage and product liability.  In April 2002, for example, after an 11–month trial brought by a California public utility against MTBE producers, oil refineries and gasoline retailers, a jury found that gasoline containing MTBE was a defective product and decided in favor of large awards to plaintiffs.  As a possible harbinger of what is to come, a number of law firms now include information relating to MTBE on their websites.

As MTBE–based claims increase, disputes concerning insurance coverage for those claims will also most assuredly increase.  This presentation will provide a framework for helping to determine how insurance policies cover MTBE–related claims.  For example, if government requirements to use MTBE result in legal actions relating to substances or commercial products exempted from Superfund liability, can insurance companies successfully deny coverage based on a pollution exclusion?

Standard liability insurance forms generally provide coverage for damage to the environment arising from MTBE.  First, the large majority of jurisdictions that have addressed the issue of the “legal obligation to pay” hold that amounts paid to address government mandates in administrative enforcement actions are amounts which the policyholder “is legally obligated to pay as damages.”  Therefore, costs to investigate and remediate MTBE contamination in response to a government directive should be construed “as damages” which a policyholder is legally obligated to pay.  Second, environmental contamination arising from gasoline containing MTBE is “property damage” and courts uniformly hold so.  Such damage generally is to the property of a third–party because most states designate groundwater as a resource held in trust for all people so actual or potential threats to groundwater from MTBE are considered damage to the property of another.  Third, “property damage” takes place or “triggers” coverage as long as the gasoline spill or leak was released into the environment at least, in part, during the policy period(s) at issue.

To deny insurance coverage for MTBE–related environmental damages, the insurance companies have (with varying degrees of success) relied upon:  (1) the “expected or intended”/no “occurrence” defense; and (2) various forms of “pollution” exclusions.  Policyholders should be sure this fine print actually applies before taking “no coverage” for an answer.  While coverage for MTBE–related liabilities will not come easily, policyholders and environmental professionals need to know what evidence is necessary to support a claim for MTBE coverage.

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