House-Senate Conferees

September, 29 2003

United States Congress
Washington, D.C. 20510

RE: MTBE Provision in the Energy Bill (HR 6)

Dear Congressman/Senator,

Citizens concerned about the safety of their drinking water would be shocked to learn that the United States Congress is on the verge of shifting tens of billions of dollars in toxic cleanup costs from the biggest oil companies in the nation to taxpayers and drinking water ratepayers.

If successful, this ill-conceived effort would be one of the bigger corporate bailouts in American history and a staggering rollback of the "polluters pays" laws that have cleaned up contamination hazards in every state.

In the aftermath of the crippling northeastern blackout of August, Congress has been working feverishly to pass a comprehensive energy bill. Behind closed doors, corporations, lobbyists, and leadership in both houses are negotiating a key provision that would shield the producers of MTBE (methyl tertiary butyl ether) from any legal claims that the chemical is "defective in design or manufacture."

MTBE is a little-known toxic component of gasoline sold in many parts of the country. Released into the environment from millions of leaking storage tanks and spills, it is one of the most ubiquitous pollutants in the nation.

In March of 2000, the United States Environmental Protection Agency stated that "the use of methyl tertiary butyl ether (MTBE) in our nation's fuel supply has created a significant and unacceptable risk to drinking water and ground water resources." The government has recognized officially MTBE's threat as a pollutant. The Clean Air Act lists MTBE as one of its original 188 hazardous air pollutants. EPA states that these pollutants, also referred to as "toxic air pollutants" or "air toxics," "cause or may cause cancer or other serious health effects, such as reproductive effects or birth defects, or adverse environmental and ecological effects."

MTBE is an unprecedented threat to the groundwaters that supply half the nation’s drinking water. Because it is highly water soluble, MTBE travels extraordinarily quickly through underground aquifers. Any cleanup of MTBE contamination is notoriously difficult and expensive.

MTBE pollution is already pervasive in our country. A July 2003 U.S. Geological Survey found MTBE in 86% of wells sampled in industrial areas nationwide. There is already a substantial number of contaminated wells in commercial areas (31%), residential areas (23%), and in areas of mixed urban land use, parks, and recreation areas (23%). But the harm inflicted by MTBE contamination is by no means localized. Over time, MTBE contamination can migrate miles and threaten regional water supply sources.

This provision is dangerous because MTBE is a defective product. The corporations seeking immunity from MTBE cleanup are facing lawsuits from coast to coast. A jury in the Superior Court of California, after evaluating the evidence, recently found MTBE to be a defective product. Documents produced at the trial proved that gasoline manufacturers have long known the cold hard truth about MTBE: that it spreads in the environment farther and faster than other components of gasoline, and that it is extremely costly to clean up. The standard industry excuse is that MTBE fulfills its stated purpose of cleaner fuel combustion. But MTBE has serious and foreseeable side effects that should not be immunized from legal action in order to protect commercial interests.

MTBE is added to gasoline as part of the Clean Air Act’s efforts to require the use of an "oxygenates" to make gasoline burn more cleanly and efficiently. But MTBE is only one kind of oxygenate and despite manufacturers’ claims to the contrary, MTBE has never specifically been Congressionally mandated as a fuel additive. Therefore, there is no conceivable justification for federally legislated immunity from liability.

The proposed MTBE "safe harbor" would open a Pandora’s box for manufacturers to seek liability immunity from a vast array of products with serious environmental or public health risks. Further, this provision would break with years of legal, legislative and executive consensus that the polluter pays!

Presidents Reagan, George H.W. Bush, and Bill Clinton have, with help from bipartisan Congressional efforts for more than 20 years, all supported the principle that polluters should pay for the cleanup of the pollutants they produce.

Congress originally enacted this principle as part of the 1980 "Superfund" legislation. That landmark law emphasized the need for expeditious cleanup of toxic sites by making "responsible parties" pay for the costs of cleanup. It has allowed government to take legal action requiring the cleanup of sites numbering in the hundreds that pose environmental and health hazards. GAO reported earlier this month that Superfund, under George W. Bush, will run out of money next month.

For over twenty years, United States decision-makers and courts have agreed that industries must bear the cost of cleaning up the environmental problems that they cause. This is an appropriate remedy for damage caused by companies that pollute, and it is a logical means of deterring future pollution hazards.

The proposed MTBE immunity would shift that financial burden from corporations to taxpayers and ratepayers who will bear the costly burden of removing MTBE from their drinking water.

Corporations have long criticized lawsuits over defective products. More "personal responsibility" is needed, they say, in lieu of lawsuits. Despite the rhetoric of personal responsibility, these manufacturers are attempting to circumvent their responsibility, their culpability for knowingly producing and using harmful chemicals in their products. Congress should not support this blatant hypocrisy. This energy bill should work for American taxpayers, not against them. More focus should be put on the needs of taxpaying constituents, not on the needs of manufacturers that knowingly produce and bring to market harmful chemicals.

Congress must do the right thing.

Sincerely,

Ralph Nader

PO BOX 19312

Washington, DC 20036

(202) 387 - 8034