MTBE issues take center-stage

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On April 21, the U.S. House of Representatives approved an Energy Bill that includes a provision granting gasoline makers defective product liability immunity in cases where water has been contaminated by the additive MTBE, and several leaders and water organizations have voiced their displeasure.

From the American Water Works Association:

The MTBE 'safe harbor' provision effectively shifts the burden of cleanup from the industry that created MTBE to local water providers, communities and consumers.

In response, Jack W. Hoffbuhr, executive director of AWWA, issued the following statement:

"It's very disappointing that so many of our members of Congress today chose to support the MTBE 'safe harbor' provision at the expense of local communities and water consumers. Earlier this week, the Congressional Budget Office categorized the MTBE provision as an unfunded mandate on state and local governments, yet some elected leaders actually voted to invalidate lawsuits brought by their own communities.

"If it were to become law, this legislative end-run would effectively strip communities of their ability to address MTBE water contamination in court. That would saddle everyday citizens with enormous MTBE cleanup bills and the considerable burden of finding new water sources.

"As the Energy Bill dialogue shifts to the Senate, the water community will continue to fight against this egregious provision. During the last Congress, the Energy Bill stalled in the U.S. Senate largely because many members of Congress voted with their consciences instead of with powerful special interests. American citizens deserve a common-sense energy policy that's not encumbered by the cynical politics reflected in the MTBE safe harbor provision."

Pelosi speaks in opposition to MTBE provision:

House Democratic Leader Nancy Pelosi on April 21 spoke on the House floor in opposition to a provision in the Republican energy bill that gives producers of gasoline additive MTBE a $2 billion subsidy, exempts the producers from liability, and establishes a nine-year phase out plan of MTBE. Below are Pelosi's remarks:

"I rise in support of Congresswoman Capps' amendment to strike the disgraceful MTBE giveaway, and I commend her for seizing the opportunity to offer this amendment.

"Mr. Chairman, as we discussed yesterday in general debate, a few drops of MTBE can poison an entire drinking water system. But the industry lobbied for MTBE to be added to gasoline anyway. The dirty little secret is that the industry knew all along that MTBE would leak out of gasoline storage tanks and contaminate ground water. In fact, there was a deliberate attempt by the MTBE producers to hide the groundwater impacts of their product from Congress.

"Today, communities across America are suffering the effects of MTBE. MTBE contamination of groundwater and surface water is a major problem in my state of California, and many drinking water wells have had to be shut down because of this contaminant. MTBE contamination has been detected in all 50 states, and a recent study indicates that it could cost between $12 and $63 billion to clean up. That's $12 to $63 billion to clean up something the industry knew was dirty to begin with, and withheld information about that from Congress.

"Not surprisingly, the MTBE producers and the big oil companies want to be protected from liability for contaminating our drinking water supplies. And not surprisingly, Tom DeLay and House Republicans are happy to oblige. Mr. DeLay insisted on the MTBE provision in the last Congress, even at the cost of killing the energy bill. He insisted on it again this year. In fact, this is the Majority Leader's bill we are debating today.

"Instead of eliminating MTBE now, the Republican energy bill gives nine years for a phase out, nine years of MTBE leaking into our water supply. And a loophole may even allow MTBE to be used indefinitely. It gives MTBE producers liability protection in contamination lawsuits and it gives a $2 billion subsidy to MTBE manufacturers.

"According to the Republican Congress, you pollute our groundwater and you get $2 billion. That's your gift for contaminating our groundwater. Republicans are not even giving MTBE polluters a slap on the wrist; they are giving them a pat on the back.

"But in their attempt to shield MTBE producers and big oil companies from accountability, Republicans have created a huge unfunded mandate for states and localities, and it is taxpayers who are stuck with the bill. Remember unfunded mandates? Wasn't that principle number one of the Contract with America? No unfunded mandates.

"And then in their attempt to shield MTBE producers and big oil companies from accountability, Republicans have created this unfunded mandate, which is called such by the National Water Resources Association, the American Public Works Association, the Western Coalition of Arid States, the Association of California Water Agencies, the American Water Works Association, the Association of Metropolitan Water Agencies, the National Association of Towns and Townships, the National Association of Counties, the National League of Cities, and the U.S. Conference of Mayors.

"These organizations say that this provision amounts to a 'massive unfunded mandate on local governments and citizens.' Republicans used to oppose unfunded mandates, and the rules of the House still allow us to strike them.

"I urge my colleagues to support the Capps amendment, to demand accountability, and to stop the outrageous MTBE giveaway."

Mayors Decry Multi-Billion Dollar MTBE Unfunded Mandate Approved by the House:

"The nation's mayors (U.S. Conference of Mayors) express their extreme disappointment that the U.S. House of Representatives chose to impose a significant financial burden upon local budgets and local taxpayers rather than require the responsible parties -- MTBE manufacturers -- to pay the cost of cleaning up polluted local drinking water supplies.

"The House has imposed another unfunded federal mandate on the backs of local governments, and missed a real opportunity to reaffirm the full intent and spirit of the Unfunded Mandates Reform Act of 1995, which is now enjoying its 10th anniversary.

"We thank the many members in the House who supported the amendment to strike a provision in the Energy Bill that grants immunity to the manufactures of MTBE, which despite bi-partisan support narrowly lost by a mere 6-vote margin of 213 to 219.

"We are hopeful that the U.S. Senate will reject this unwarranted cost shift to local governments and their taxpayers."

Other MTBE news:

Court Decision Allowing Continuance of MTBE Lawsuits Among Topics of Discussion at MTBE-Perchlorate Conference

A federal court ruling Wednesday (April 20) that major oil companies must defend themselves against MTBE contamination lawsuits will be discussed by a key attorney in the case during a National Ground Water Association conference May 26-27 in San Francisco.

The conference -- MTBE and Perchlorate Assessment, Remediation and Public Policy -- includes an update by attorney Stan Alpert on about 80 cases across the country gathered in a multi-district litigation in New York. He represents several water systems in municipal lawsuits brought to recover filtration costs for intrusions of MTBE.

In his opinion, Federal District Judge Shira A. Scheindlin stated that "Innocent water providers, and ultimately innocent water users, should not be denied relief from the contamination of their water supply if defendants breached a duty to avoid an unreasonable risk of harm from their products."

Efforts to include a provision in the energy bill to protect oil companies from liability for MTBE contamination of ground water has been a major point of contention. The bill passed the House, and now goes to the Senate.

To learn more about the conference, visit here: http://info.ngwa.org/servicecenter/Meetings/Index.cfm

This article originally appeared in the 04/01/2005 issue of Environmental Protection.

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