Industry groups at odds over New York plan to ban MTBE

Washington, DC�Another US state has moved to ban the gasoline additive methyl tertiary butyl ether as a result of discoveries of MTBE contamination in groundwater. New York Gov. George Pataki's signing of legislation to phase out MTBE has prompted a war of words between two industry groups.

The Oxygenated Fuels Association (OFA) filed a complaint in federal court charging that the New York law contradicts federal law. The Renewable Fuels Association (RFA) then criticized OFA, saying, "...The OFA challenge is based on the groundless notion that, by moving to protect its drinking water from further MTBE pollution, New York violated the federal Clean Air Act."

OFA Executive Director Thomas Adams said, "It is clear that the Clean Air Act specifically prohibits states from tinkering with the federal reformulated gasoline (RFG) program. Not only is the New York law legally impermissible, but it would also result in dirtier air and higher gasoline prices for state residents."

Thomas added that New York citizens "...have a right to both clean water and clean air."

Rather than ban MTBE, OFA urged Pataki to consider:

� Vigorously enforcing existing regulations governing underground gasoline storage tanks.

� Employing state and federal services to promptly clean up existing gasoline contamination.

� Encouraging adoption of national fuel standards that permit refiners flexibility in making gasoline while insuring continued air quality improvements.

� Calling on Congress to pursue a national fuel policy dedicated to protecting the environment and public health without subsidizing special interests.

"OFA strongly believes that New York's attempt to deal with leaking underground gasoline storage tanks by banning the key component of cleaner burning gasoline is simply bad public policy," said Adams.

OFA contends that US Congress deliberately did not to regulate which oxygenate refiners and marketers should use in RFG but rather left them to make that decision based on market forces. "New York's action contradicts congressional intent," claims OFA. "Further, if each state were to have its own requirements for gasoline, the price per gallon would increase due to the special blending and handling that would be required to support such a 'patchwork' of gasoline formulations.

"New York's action to ban MTBE," OFA continued, "while clearly illegal, also raises questions about the price, viability, and health effects of the potential alternatives to MTBE. For example, gasohol�made from corn-derived ethanol�is a poor substitute for MTBE because of supply and transportation problems that drive up the price of gasoline and because of potential health consequences associated with its use.

"In addition to being less effective when compared to MTBE, ethanol can actually contribute to the formation of smog. In addition, OFA believes that ethanol's 54�/gal federal subsidy is an unnecessary burden on the taxpayers of this country."

RFA's response
RFA Pres. Eric Vaughn said, "The people of the US have seen MTBE for what it is�an unnecessary, costly, stinky, toxic, probable human carcinogen that has caused widespread water pollution leading to billions of dollars of taxpayer-funded cleanups."

RFA said 10 states (Arizona, California, Colorado, Connecticut, Iowa, Michigan, Minnesota, Nebraska, New York, and South Dakota) have banned or are phasing out MTBE. Similar bills are pending in the US Congress.

RFA said, "The OFA's contention that federal clean air law prohibits state action to protect drinking water is baseless and flies in the face of over 200 years of precedent. States have always been able to exercise their 'police powers' to protect the health and welfare of their citizens unless specifically limited by federal law. There is no limit on state action here."

RFA said Sect. 211 of the Clean Air Act does limit states' ability to regulate fuel characteristics "for the purpose of motor vehicle emission control" and also limits the content of oxygenates in reformulated fuels, without mentioning particular oxygenates.

Vaughn said, "MTBE is not mentioned, regulated, or protected by the Clean Air Act. Even if someone drew that incorrect conclusion, MTBE could still be regulated by states for purposes other than emission control.

"The Clean Air Act lays this out very clearly. And New York enacted the MTBE phase-out to protect its water. New York's phase-out of MTBE is not only legal but in the best interests of its citizens."

Vaughn compared OFA to the orchestra on the Titanic, which, legend has it, continued to play as the ship sank. "Just like that orchestra, the OFA is making noise, but the end is inevitable," he said.

OFA's Adams concluded, "The MTBE issue is a complex one that needs to be resolved after a thorough science-based review of its costs and benefits, along with a careful review of the alternatives to MTBE. The US Environmental Protection Agency has already initiated such a regulatory process, which renders New York's action unnecessary.

"Unfortunately, the MTBE issue has been driven more by politics and emotion than by sound science, and we are counting on the courts to put the issue back in perspective."

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