WASHINGTON INSIGHT

APWA victorious in MTBE liability waiver fight; struggle continues in 2004

Heather McTavish Doucet
Government Relations Associate
APWA Washington Office

In late November, APWA and several other organizations representing municipal government successfully stopped Congress from shifting an estimated $29 billion responsibility for Methyl Tertiary Butyl Ether (MTBE) cleanup from oil companies to local communities. The liability waiver provision was included in the enormous energy bill that was dubbed "Hooters and Polluters" in some circles because of language authorizing the construction of a Hooters restaurant in the bill.

The energy bill was stopped in the Senate when Democrats and Republicans opposing the bill—and the MTBE provisions specifically—mounted a filibuster that forced it back to Committee. Those supporting the energy bill failed by two votes to garner the 60 votes needed to block the filibuster attempt and bring debate to a close. It's likely that without the MTBE provision, the bill would have passed the Senate. The White House supported stripping the liability waiver from the bill, but the Republican leadership refused to budge.

The energy bill includes a safe harbor provision for producers of MTBE by making them exempt from defective product liability suits, and protecting them from accepting responsibility for environmental damage caused by MTBE. The liability for cleanup would then fall to distributors and local filling stations, and in many cases, local governments will have to shoulder the cleanup costs.

Over 1,500 community water systems in all fifty states have been polluted with MTBE. Fourteen states have already banned the toxic MTBE due to concerns over increased rates of cancer, kidney and liver damage, among other health risks. An often cited study by a California environmental engineering firm estimated a cost of $29 billion to clean up the 500 public drinking water wells and 45,000 private wells across the country contaminated with MTBE, in addition to the approximately 140,000 underground storage tanks still leaking gasoline containing the additive.

Highlighted in a press release sent out by APWA was the fact that local governments already face a host of other competing needs. Said Andy Haney, Public Works Director in Ottawa, Kansas: "In Ottawa we have to find money to implement new Environmental Protection Agency (EPA) regulations and reporting requirements such as the National Pollutant Discharge Elimination System (NPDES), upgrade aging water and wastewater infrastructure systems, and implement new security measures and standards to protect against terrorism. These are all new requirements that come on top of sustaining routine, basic services for the public good. Where to find funding for this growing list of priorities is a serious issue."

The Senate is likely to reconsider the energy bill after they return to Washington on January 20, 2004. The Republican leadership has voiced their opinion that prospects are good for passing the bill in its current form.

APWA, working with a large coalition of municipal organizations, will continue to fight the MTBE safe harbor provision by participating in a series of regional press events, briefings for Senate staff, and meetings educating Senators on the impact of MTBE cleanup on local communities.

For more information contact Heather McTavish Doucet in APWA's Washington Office at (202) 408-9541 or hdoucet@apwa.net.