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78–697 2013

H.R. 4345, THE DOMESTIC FUELS PROTECTION 

ACT OF 2012 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 19, 2012 

Serial No. 112–138 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

TIM MURPHY, Pennsylvania 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

JOHN SULLIVAN, Oklahoma 

CHARLES F. BASS, New Hampshire 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

JOE BARTON, Texas 

FRED UPTON, Michigan, ex officio 

GENE GREEN, Texas 

Ranking Member 

TAMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., NEW JERSEY

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California, ex officio 

(V) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 17 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 18 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 20 

Prepared statement .......................................................................................... 21 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 65 

WITNESSES

John Eichberger, Vice President, Government Relations, National Association 

of Convenience Stores .......................................................................................... 22 

Prepared statement .......................................................................................... 25 

Answers to submitted questions ...................................................................... 127 

Charles T. Drevna, President, American Fuels and Petrochemical Manufacturers ..................................................................................................................... 34 

Prepared statement .......................................................................................... 35 

Answers to submitted questions ...................................................................... 129 

Bob Dinneen, President and CEO, Renewable Fuels Association ....................... 41 

Prepared statement .......................................................................................... 43 

Shannon Baker-Branstetter, Policy Counsel, Energy and Environment, Consumers Union Policy & Action from Consumer Reports ................................... 46 

Prepared statement .......................................................................................... 48 

K. Allen Brooks, Senior Assistant Attorney General and Chief, Environmental 

Protection Bureau, State of New Hampshire .................................................... 58 

Prepared statement .......................................................................................... 60 

SUBMITTED MATERIAL

H.R. 4345 .................................................................................................................. 3 

Letters and Statements Opposing H.R. 4345, submitted by Mr. Green ............. 77 

(1) 

H.R. 4345, THE DOMESTIC FUELS 

PROTECTION ACT OF 2012 

THURSDAY, APRIL 19, 2012 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 9:30 a.m., in Room 

2322, Rayburn House Office Building, Hon. John Shimkus, [chairman of the subcommittee] presiding. 

Present: Representatives Shimkus, Murphy, Whitfield, Pitts, 

Latta, Harper, Cassidy, Barton, Upton (ex officio), Green, Barrow, 

Capps and Waxman (ex officio). 

Staff Present: Charlotte Baker, Press Secretary; Michael 

Beckerman, Deputy Staff Director; Anita Bradley, Senior Policy 

Advisor to Chairman Emeritus; Maryam Brown, Chief Counsel, Energy and Power; Jerry Couri, Professional Staff Member, Environment; Cory Hicks, Policy Coordinator, Energy and Power; Ben 

Lieberman, Counsel, Energy and Power; David McCarthy, Chief 

Counsel, Environment and Economy; Chris Sarley, Policy Coordinator, Environment and Economy; Michael Aylward, Democratic 

Professional Staff Member; Jacqueline Cohen, Democratic Counsel; 

Greg Dotson, Democratic Energy and Environment Staff Director; 

Caitlin Haberman, Democratic Policy Analyst; and Alexandra 

Teitz, Democratic Senior Counsel, Environment and Energy. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. It is 9:30 by that clock, a few minutes after because of mine, and we want to open the hearing and welcome our 

members of our panel, first and only panel. 

Before I do that, I want to take a point of personal privilege on 

behalf of my colleague Mr. Bass, who sends his regrets that he 

wasn’t able to be here. He serves on the subcommittee. As our panelist from the State of New Hampshire knows, that there was a 

tragedy and loss of a chief of police in Greenland, New Hampshire. 

He was killed in the line of duty last Friday, so much of the New 

Hampshire delegation is up there with a lot of State and local officials today, and that is why Mr. Bass cannot attend. And as a 

member of the subcommittee, he is a very active member. 

So with that I would just like to pause for a moment of silence 

in remembering the law enforcement community, and the chief of 

police Michael Maloney and his family, and the entire State of New 

Hampshire. 

2 

Thank you. And now I would recognize myself for 5 minutes for 

an opening statement. 

Today the subcommittee will hold a hearing on H.R. 4345, the 

Domestic Fuels Protection Act of 2012. I am proud to once again 

be a lead sponsor of this bipartisan legislation, with my colleague 

on the committee Mr. Ross. 

[H.R. 4345 follows:] 

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Mr. SHIMKUS. This Congress I am pleased also to welcome in this 

Congress Congressman Sullivan, our vice chairman on the energy 

subcommittee, as well as Collin Peterson, the ranking member on 

the Ag Committee, as original cosponsors. 

In some shape, or form everyone is affected by the increase in 

gas prices. Whether it is the seasonal price spikes we are now 

starting to see across the country or the overall higher prices at the 

pump the last couple of years, Americans are looking for ways to 

bring down these costs and break our dependence from hostile 

sources of foreign oil. 

Some see the path forward through renewable fuels like ethanol 

and biodiesel, which are providing both lower prices at the pump 

and less dependence on oil. Now we are also waiting for the next 

generation of cellulosic ethanol and biofuel products to come on line 

and create an even more renewable fuel right here at home. 

Others recognize the promise in our natural gas reservoirs 

throughout the country. In fact, we had an interesting debate about 

that just 2 days ago in Chairman Whitfield’s committee about our 

ability to convert this abundant natural resource into a liquid natural gas for transportation fuel could provide yet another significant and inexpensive alternative in the marketplace. 

I support an open fuel standard that would break our mandate 

on gasoline by requiring cars and light-duty trucks to operate on 

a variety of different fuels. This will allow all fuels to compete in 

the market, and from there consumers can choose the fuel for their 

vehicle based upon factors important to them, such as price and 

miles per gallon. And I hope my colleagues on this committee and 

the full committee will give that piece of legislation serious consideration. 

However, the legislation we are discussing today is not about 

these or any one fuel option at all. H.R. 4345 would apply to any 

new fuel or fuel additive approved and registered by the EPA. H.R. 

4345 is needed because EPA approved up to 15 percent ethanol 

blends only in vehicles whose model year is 2001 and newer; in essence, bifurcating the vehicle market. The practical result of EPA’s 

action has been that a morass of pending legal liability and uncertainty have frightened the market and complicated the supply 

chain’s ability to provide a means of delivery for the new fuels. 

We will hear today from a retailer community prepared to comply with regulations to legally distribute fuel, yet still be subject to 

lawsuits if a consumer misfuels their own vehicle. 

Similar uncertainty exists for other parties in the supply chain, 

and they are here to discuss whether this serves as an unavoidable 

barrier to entry. We need to find out what the specific problems are 

so the final product of this bill can address them in the most appropriate and targeted way. 

The intent of H.R. 4345 is to ensure any party that is compliant 

with EPA fuel regulations is not subject to litigation based upon 

those merits alone. As a main sponsor of the bill, I can assure you 

H.R. 4345 is not an attempt to allow parties to abrogate any of 

their responsibilities. I do not intend this bill to relieve parties who 

acted negligently from liability in the court. Nothing in this bill 

would remove responsibility for environmental cleanup under 

RCRA, Superfund, or any other Federal or State law. If an underVerDate Nov 24 2008 11:11 Feb 15, 2013 Jkt 037690 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 112\112-138 CHRIS
17 

ground storage tank containing any fuel were to have a leak, the 

owner or operator will be liable the same way they are today. H.R. 

4345 simply clarifies that just having a registered fuel in a tank 

EPA has determined compatible does not automatically put you in 

violation of the law. 

The purpose of this legislative hearing is to hear comments on 

the bill, including suggestions on how to approve it. One of our witnesses suggested that H.R. 4345 as introduced somehow blocks 

legal actions arising from mishandling of MTBE going back to the 

days when MTBE was used as an oxygenate instead of ethanol. 

Frankly, I like ethanol as an oxygenate better than MTBE anyway, 

but that is a debate we have had numerous times, Mr. Green. 

This is certainly not the intent of the legislation, but this really 

is the reason why we have hearings. And so we are going to hear 

from our Member from New Hampshire on the panel, and he has 

raised some good issues that we need to address. 

Also, my colleague, as I mentioned earlier, a member of the subcommittee, Mr. Bass has spoken to me personally on this issue because it is a pressing issue for the State of New Hampshire. I appreciate his commitment to work with me in moving forward to ensure H.R. 4345 does not infringe upon ongoing litigation and cleanup in his State involving MTBE. 

H.R. 4345 will allow a critical path forward now and into the future to ensure consumer access to new transportation fuels competing in the market to drive costs down. 

I want to thank the witnesses for being here today to give their 

perspective on the bill. I look forward to their testimony and willingness to answer questions to help us as we work to move this legislation forward. 

With that, I would like to now yield to the ranking member of 

the committee, Congressman Gene Green from the great State of 

Texas. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

Today the subcommittee will hold a order on H.R. 4345, the Domestic Fuels Protection Act of 2012. I am proud to once again be a lead sponsor of this bi-partisan 

legislation with my colleague on the committee Mr. Ross. This Congress I am also 

pleased to welcome Congressman Sullivan our vice-chairman on the Energy Subcommittee as well as Colin Peterson the Ranking member of the Agriculture Committee as original co-sponsors. 

In some shape or form everyone is affected by increased gas prices. Whether it 

is the seasonal price spikes we are now starting to see across the country or the 

overall higher prices at the pump the last few years, Americans are looking for ways 

to bring down those costs and break our dependence from hostile sources of foreign 

oil. 

Some see the path forward through renewable fuels, like ethanol and bio-diesel, 

which are providing both lower prices at the pump and less dependence on oil. Now 

we are also waiting for next generation Cellulosic ethanol and biofuel products to 

come online and create even more renewable fuel right here at home. Others recognize promise in our natural gas reservoirs throughout the country. The potential to 

convert this abundant natural resource into liquid natural gas for transportation 

fuel could provide yet another significant and inexpensive alternative in the market 

place. 

I support an open fuel standard that would look to break our mandate on gasoline 

by requiring cars and light-duty trucks to operate on a variety of different fuels. 

This will allow all fuels to compete in the market and from there consumers can 

18 

choose the fuel for their vehicle based on factors important to them such as price 

and miles per gallon. 

However, the legislation we are discussing today is not about these or any one 

fuel option at all. H.R. 4345 would apply to any new fuel or fuel additive approved 

and registered by the EPA. H.R. 4345 is needed because EPA approved up to 15 

percent ethanol blends only in vehicles whose model year is 2001 or newer. The 

practical result of EPA’s action has been that a morass of pending legal liability and 

uncertainty have frightened the market and complicated the supply chains ability 

to provide a means of delivery for new fuels. 

We will hear today from a retailer community prepared to comply with regulations to legally distribute fuel, yet still be subject to lawsuits if a consumer misfuels 

their own vehicle. Similar uncertainty exists for others parties in the supply chain 

and they are here to discuss whether this serves as an unavoidable barrier to entry. 

We need to find out what the specific problems are so the final product of this 

bill can address them in the most appropriate and targeted way. The intent of H.R. 

4345 is to ensure any party that is compliant with EPA fuel regulations is not subject to litigation based on those merits alone. 

As a main sponsor of the bill I can assure you H.R. 4345 is not an attempt to 

allow parties to abdicate any of their responsibility. I do not intent this bill to relieve parties who act negligently from liability in court. Nothing in the bill would 

remove responsibility for environmental cleanup under RCRA, Superfund, or any 

other federal or state law. If an underground storage tank containing any fuel were 

to have a leak, the owner or operator will be liable the same way they are today. 

H.R. 4345 simply clarifies that just having a registered fuel in a tank EPA has determined compatible does not automatically put you in violation of the law. 

The purpose of a legislative hearing is to hear comments on the bill, including 

suggestions on how to improve it. One of our witnesses suggested that H.R. 4345, 

as introduced, somehow blocks legal actions arising from mishandling of MTBE 

going back to the days when MTBE was used as an oxygenate instead of ethanol. 

That is certainly not the intent of the legislation. My colleague and a member of 

this Subcommittee Congressman Charlie Bass has spoken to me personally on this 

issue. I appreciate his commitment to work with me moving forward to ensure H.R. 

4345 does not infringe upon ongoing litigation and cleanup in his state involving 

MTBE. 

H.R. 4345 will allow a critical path forward now and into the future to ensure 

consumer access to new transportation fuels competing in the market to drive costs 

down. I want to thank are witnesses for being here today to give their perspective 

on the bill. I look forward to their testimony and willingness to answer questions 

to help us as we work to move this legislation forward. 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Thank you, Mr. Chairman. And you and I have debated the difference between MTBE and ethanol, and obviously we 

lost that battle in the Senate in 2005, but like the Battle of San 

Jacinto, I don’t mind bringing it up all the time. 

But first of all, before I go into my statement, I would like to introduce to you and your staff, my staff member handling the committee is Lindsay Westfield, who actually—those of you who remember a few weeks ago we had a full committee markup. I had 

a great staff member, Abigail Pinkele, who actually worked in our 

office for many years and was LD, and went downtown, so to 

speak. And I know, Congressman Murphy and I know she went to 

work at the National Association of Community Health Centers, 

which we work with a lot. 

But Lindsay will be doing the staffing on the committee, and 

Lindsay has been in our office, in fact, started literally at the front 

door, for many years. And I appreciate her working—sitting in on 

this and doing energy and environment work on our staff. 

Mr. Chairman, I want to thank you for holding the hearing today 

on H.R. 4345, the Domestic Fuels Protection Act of 2012. This is 

19 

an issue that I have been actively involved in for a few years, and 

I am pleased the committee is giving this important issue the attention it deserves. 

We have a serious problem coming down the pike, and we have 

sat on resolving this issue for too long. As the EPA continues to 

approve and register new fuels and fuel additives needed to comply 

with the renewable fuel standard, this problem will only grow as 

refiners will have to increase the ethanol content in a shrinking 

volume of gas. 

The use of renewable fuel such as ethanol in domestic fuels is not 

a matter of choice by the private sector; rather, it is mandatory as 

a result of the renewable fuels mandate established in section 211 

of the Clean Air Act. If Congress wants renewable fuels to be part 

of the fuel supply, private-sector fuel refiners and manufacturers 

must be willing to produce these fuels; however, holding these private entities liable for fuel formulations mandated by the government creates a disincentive for private companies to participate in 

the renewable fuels program, which would undermine the Clean 

Air Act goal of increasing the use of these renewable fuels. 

So, Mr. Chairman, again, I appreciate your looking into this 

issue. Unfortunately, I have serious concerns about the approach 

H.R. 4345 takes and do not think this bill appropriately addresses 

the problems. 

Fuels and fuel additives can pose risks in automobile equipment, 

in equipment safety, air quality, groundwater and land. That is 

why States, localities, and Federal agencies have taken action 

under various statutes to try and mitigate these risks and protect 

human health, safety, and the environment. H.R. 4345 would preempt and eliminate the vast majority of these requirements, leaving States and municipalities and property owners without protection from or remedies for the damage to their personal effects and 

potential contamination of our groundwater. 

To put it in perspective, I can’t imagine anyone in this room 

would be oK in not having any sort of recourse if your engine is 

ruined from accidental misfueling. That is why for two Congresses 

I have been a strong supporter and cosponsor of our fellow Energy 

and Commerce member, Representative Gonzalez, the American 

Fuel Protect Act, H.R. 523. This reasonable bill would waive the 

sovereign immunity of the Federal Government and allow for lawsuits involving the use of ethanol in renewable fuels to be brought 

exclusively against the Federal Government. Providing this remedy 

would allow for the redress of legitimate damages without punishing our manufacturers or distributors for simply complying with 

this Federal Government mandate. Importantly, too, any damages 

awarded for such a claim would not exceed the actual damage sustained by the plaintiff. 

When the government requires a manufacturer to produce products in specific formulations, the government should be responsible 

for the liability risk associated with these formulations, and with 

this bill everyone in the transportation fuel chain can rest assured 

they do not have a fear of litigation for complying with a government mandate while also not depriving the plaintiffs of their day 

in court. 

20 

It is a matter of fairness, Mr. Chairman, and I look forward to 

working with you in resolving my concerns with H.R. 4345 in addressing the issue. 

And I would also like to submit three letters for the record, one 

from the US Boat Owners Association of the United States; the 

American Automobile Association, Public Affairs; and also the 

American Water Works Association. I would like to submit them 

for the record. 

Mr. SHIMKUS. Without objection, these letters will be submitted 

into the record. 

[The information appears at the conclusion of the hearing.] 

Mr. GREEN. If I can yield back my time. 

Mr. SHIMKUS. If I can just claim your remaining 30 seconds. I 

just want to give an anecdotal story of a—I won’t name my staffer—who years ago drove up to a filling station and put diesel in 

the gasoline engine of a vehicle. Obviously, he was the one who 

was negligent, didn’t read the pump. We all know diesel pumps are 

labeled properly and who had to pay for the cleanup, for the repair. 

It was the person who was negligent in misfueling the vehicle. 

And so that basic premise is really the same thing here. We 

didn’t go back and sue the retailer, nor did we go back to the refinery and sue them for producing a product that I shouldn’t have— 

or my staffer shouldn’t have put in the tank to begin with. We had 

to bear the brunt of that mistake. And I think that is really the 

basic premise of what we are trying to do. 

Thank you for the time. 

Mr. GREEN. Mr. Chairman, can I just respond? 

Mr. SHIMKUS. Yes. 

Mr. GREEN. I have a 2002 Chevy Blazer, and I don’t put diesel 

in it, but that engine is hurt by requiring 15 percent ethanol as 

compared to 10 percent. That is the only option I have when I go 

into one of our service stations. 

So I think I agree, if I do it wrongly, if I put diesel or something 

in a vehicle, or someone else does, that is—but when you don’t 

have a choice and the government mandates that. The government 

didn’t mandate that diesel fuel. 

I yield back my time. 

Mr. SHIMKUS. You must not trust the EPA. You know I do, don’t 

you? 

I would like to yield now to the chairman of the full committee 

Mr. Upton for 5 minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. On that note, you and I were both staffers, so protect 

our crew or ourselves. 

Thank you for holding this hearing. We know that transportation 

fuel is varied and changing in the country, and part of the reason 

why is because of Federal mandates that are enacted and expanded 

the last number of years. 

A number of years ago gasoline blended with 10 percent ethanol 

was hard to find outside of the heartland, but now it is really just 

about everywhere. And EPA has recently approved the 15 blends 

with up to 15 percent ethanol, but not for everyone, not for cars 

21 

older than model year 2001; not for boats, lawn mowers, chain 

saws, other small engines. And that is just a snapshot. 

As the renewable share grows under the RFS, we are likely to 

see more varieties of fuels and fuels blending seeking EPA approval. All of these changes which are coming as a result of the 

Federal policy have to be dealt with. The market wants and deserves a measure of certainty for sure, not price guarantees or supply quotas, just some confidence that if you refine, distribute, blend 

or dispense transportation fuel, and you follow all of EPA’s rules, 

you are not going to face legal risk for doing that. 

H.R. 4345, the subject of today’s hearing, does three main things. 

First, it says no one will be held liable because of a storage tank 

or fuel-dispensing equipment not compatible with a particular fuel 

after EPA says it is compatible. 

Second, it says that no person is liable because a self-service purchaser fills up with a fuel not approved for their car or other engine. That is just common sense, like saying the retail store that 

sells you antifreeze is not liable if you take it home and drink it, 

or you put diesel fuel in your car that is not supposed to go there. 

Third, it ensures that people who design, make, sell or distribute 

any fuel, vehicle or engine, doesn’t face lawsuits resulting solely 

from the fact that an EPA-approved fuel goes into a vehicle or engine. 

So let us be clear on what the bill does not do. It does not change 

fuel retailers’ or anyone else’s environmental cleanup obligations 

under RCRA or Superfund. It does not excuse unfair trade practices or anticompetitive behavior. And it does not say people who 

act negligently are not held accountable. Instead it says that following EPA regs and selling EPA-approved fuel is not enough to 

get you into trouble. 

And I would yield to any of my Republican colleagues seeking 

time. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Transportation fuel is varied and changing in this country, and part of the reason 

why is because of federal mandates enacted and expanded in recent years. A few 

years ago, gasoline blended with ten percent ethanol was hard to find outside the 

Heartland. Now it’s just about everywhere. And EPA has recently approved E–15— 

blends with up to 15 percent ethanol—but not for everyone. Not for cars older than 

model year 2001, and not for boats, lawn mowers, chain saws, and other small engines. 

And this is just a snapshot. As the renewable share grows under the Renewable 

Fuels Standard, we’re likely to see more varieties of fuels and fuel blends seeking 

EPA approval. All of these changes, which are coming as a result of federal policy, 

must be dealt with. The market wants and deserves some measure of certainty. Not 

price guarantees or supply quotas, just some confidence that if you refine, distribute, blend, or dispense transportation fuel and you follow all of EPA’s rules, you 

won’t face legal risks for doing so. 

H.R. 4345, the subject of today’s hearing, does three main things: First, it says 

that no one will be liable because a storage tank or fuel dispensing equipment is 

not compatible with a particular fuel, after EPA says it is compatible. 

Second, it says no person is liable because a self-service purchaser fills up with 

a fuel not approved for his car or other engine. This is just common sense—like saying the retail store that sells you antifreeze is not liable if you take it home and 

drink it. 

22 

Third, it ensures that people who design, make, sell, or distribute any fuel, vehicle, or engine don’t face lawsuits resulting solely from the fact that an EPA-approved fuel goes into a vehicle or engine. 

Let’s be clear on what the bill does not do. It does not change fuel retailers’ or 

anyone else’s environmental cleanup obligations under RCRA or Superfund. It does 

not excuse unfair trade practices or anti-competitive behavior. 

And it does not say people who act negligently are not held accountable. Instead 

it says that following EPA regulations and selling EPA-approved fuel is not enough 

to get you into trouble. 

Mr. SHIMKUS. Mr. Cassidy, were you looking for time for an 

opening statement? 

Mr. CASSIDY. No. 

Mr. SHIMKUS. Anybody desiring time? If not, the chairman yields 

back. 

I have been asked by the minority to allow Chairman Waxman, 

when he arrives, to give his 5-minute opening statement. I think 

that I would like to do that if there is no objection. 

Hearing none, then we will move to our first panel. We will briefly introduce you all, and then we will go—most of you are experienced here. Your full statement is submitted for the record. You 

have 5 minutes. 

From my left to right, we have John Eichberger, vice president 

government affairs, National Association of Convenience Stores. 

Next we have Charles Drevna, president of American Fuels and 

Petrochemical Manufacturers. 

Gene, I want you to listen to his testimony carefully. 

Mr. GREEN. I reviewed it. 

Mr. SHIMKUS. Bob Dinneen, president and CEO of Renewable 

Fuels Association; Shannon Baker-Branstetter, who is the policy 

counsel, energy and environment, Consumers Union, Policy & Action, from Consumer Reports; and K. Allen Brooks, senior assistant 

attorney general and chief, Environmental Protection Bureau, from 

the State of New Hampshire. 

We want to welcome you all. We will start with Mr. Eichberger. 

You are recognized for 5 minutes for your opening statement. 

STATEMENTS OF JOHN EICHBERGER, VICE PRESIDENT, GOVERNMENT RELATIONS, NATIONAL ASSOCIATION OF CONVENIENCE STORES; CHARLES T. DREVNA, PRESIDENT, 

AMERICAN FUELS AND PETROCHEMICAL MANUFACTURERS; 

BOB DINNEEN, PRESIDENT AND CEO, RENEWABLE FUELS 

ASSOCIATION; SHANNON BAKER–BRANSTETTER, POLICY 

COUNSEL, ENERGY AND ENVIRONMENT, CONSUMERS UNION 

POLICY & ACTION FROM CONSUMER REPORTS; AND K. 

ALLEN BROOKS, SENIOR ASSISTANT ATTORNEY GENERAL 

AND CHIEF, ENVIRONMENTAL PROTECTION BUREAU, STATE 

OF NEW HAMPSHIRE 

STATEMENT OF JOHN EICHBERGER 

Mr. EICHBERGER. Thank you, Chairman Shimkus and Ranking 

Member Green. I appreciate the opportunity to be here to explain 

why NACS supports H.R. 4345. The convenience store industry operates 149,000 stores in the Nation of which about 121,000 sell 

fuel. Through these stores our industry sells about 80 percent of 

the gasoline consumed in the United States every year. This puts 

23 

retailers right in the middle of policies and consumers who are trying to bring them to market. 

Our reasons for supporting 4345 are actually quite simple. As 

you look into the future for the market, we know new fuels will be 

developed. The renewable fuel standard makes this an absolute 

certainty, as Chairman Upton mentioned. New renewable fuels 

must be brought to consumers. As these fuels are approved, and 

consumers begin to ask for them, NACS members want to satisfy 

consumer demand and offer these fuels. If they are not able to do 

so, it is likely that the goal that Congress set when it established 

the RFS will not be met, which is precisely why 4345 is important. 

First, and I think it is important, our members want to be responsible retailers. They take very seriously their role in protecting 

the environment, prevent releases. Some of you were on the subcommittee when it considered the Energy Policy Act of 2005, and 

you may remember that NACS was the strongest advocate, supporting increased enforcement of our gas storage tank regs. We 

pushed for legislation to require inspections, operator training, and 

shutting down noncompliant tanks. 

Our commitment to ensuring the integrity of our tank systems 

has not changed. If you think about it, this makes sense. Convenience stores are part of their communities. In fact, 58 percent of the 

stores that sell fuel are one-store mom-and-pop operators who probably live right around the corner from the store. They live in the 

communities they serve, and they don’t want to pollute or tarnish 

their reputation. They care about the communities, not to mention, 

if they have a release, it is extremely expensive to clean it up. So 

their commitment to making sure that the stuff they put in their 

tanks does not release is absolutely pure. 

Retailers are also reluctant to spend maybe $100,000 to replace 

equipment that is perfectly suitable for the fuel they want to sell, 

and that is where 4345 comes in. The bill will establish a mechanism for retailers to determine if their existing equipment is safe 

and compatible to dispense a new fuel. That is it. H.R. 4345 says 

if the equipment is technically safe and compatible, it should be legally recognized as safe and compatible. If the equipment is not 

compatible, retailers are going to have to replace it, and that is the 

bottom line. We don’t want to use noncompatible equipment, but 

we shouldn’t have to replace equipment that is compatible. It is 

that simple. 

There is nothing in this bill that changes the retailer’s responsibility to prevent releases or to clean up any contamination that results from a release. It simply gives them a legal mechanism for 

determining if their equipment is compatible. 

The other main reason our members support this bill is to ensure 

there is a clear set of rules by which they must operate and some 

reasonable legal protections for them when they do comply with the 

rules. H.R. 4345 addresses it in two simple ways. One, if EPA approves a fuel for a subset of engines, the bill requires EPA to issue 

regulations to prevent misfueling. The bill does not dictate what 

these regulations must say. EPA may determine that labels are all 

that is necessary, or it may require nozzle and fill pipe restrictions, 

or it may even require that the fuel be sold behind a locked cage. 

24 

Whatever the rules, retailers will comply. And those rules are 

going to be determined through the agency rulemaking process. 

Once those rules are established, if retailers do comply, they 

want to know that if someone else circumvents those rules and 

those misfueling provisions, they are not going to be held responsible for that other party’s actions. They do not believe they should 

be held accountable for actions that are beyond their control, and 

4345 provides them that protection. 

And then once a fuel is approved, and the rules governing the 

sale of that fuel are established, retailers will comply. If the rules 

change, or a fuel is removed from the market, retailers will adapt 

and comply with the new rules. That is only reasonable, and we do 

that all the time. However, my members do not believe it is reasonable to hold them accountable to comply with a regulation or rule 

that does not yet exist. Our members say, tell us what we have to 

do, and we will do it, but don’t turn around and punish us for 

someone else’s behavior or hold us responsible if you later change 

the rules on us. You have to give us an opportunity to comply with 

the new rules. 

H.R. 4345 is a reasonable and limited bill that provides certainty 

to the market. This is why NACS’ members support the legislation. 

I urge the committee to proceed with consideration of enactment of 

this bill to provide the market with the certainty it needs to bring 

innovative fuels to the market. 

Thank you. I look forward to your questions. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Mr. Eichberger follows:] 

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Mr. SHIMKUS. And now I would like to recognize Mr. Drevna for 

5 minutes, thank you. And your opening statement is in the record. 

You have 5 minutes. 

STATEMENT OF CHARLES T. DREVNA 

Mr. DREVNA. Chairman Shimkus, Ranking Member Green and 

members of the subcommittee, thank you for giving me the opportunity today to testify at this hearing on the Domestic Fuels Protection Act of 2012. 

Charlie Drevna, and I serve as AFPM’s president. AFPM is a 

110-year-old trade association that was formerly known as the National Petrochemical and Refiners Association up until this year. 

AFPM members use oil and natural gas liquids as raw materials 

to manufacture virtually the entire supply of U.S. Gasoline, diesel, 

jet fuel, home heating oil and other fuels, along with petrochemicals used in thousands of products. 

We support the Domestic Fuels Production Act. Now, as we have 

stated for years, and it comes as no surprise to this subcommittee 

or any committee in this Congress, we oppose subsidies, and we oppose mandates. We continue to have serious questions about the 

workability, structure, and unintended consequences of the existing 

renewable fuel standard. However, as long as the RFS remains the 

law, and it is the law of the land today, our members must work 

to comply with its requirements. 

The Domestic Fuels Production Act would provide the necessary 

legal certainty for all parties in the transportation fuel supply 

chain. This is critically important as the Environmental Protection 

Agency approves and registers new fuels and new fuel additives 

needed to comply with the ever-expanding RFS. 

Under the RFS, 36 billion gallons of renewable fuels must be 

available in the U.S. marketplace by 2022, 10 short years from 

now. That is a dramatic increase from the 13.7 billion gallons of 

renewable fuels available last year. 

With rising mandates, falling demand, refiners are required to 

increase ethanol content in a shrinking volume of gasoline; however, the refining industry is only one of several domestic industries that will have to address these challenges. Engine manufacturers as well as transportation fuel providers all face challenges 

posed by the need for alternative fuels under the existing RFS. Our 

challenge again, as long as the RFS is the law of the land, is to 

integrate these new fuels in the fuel supply. 

All parties in the transportation fuel supply chain need to know 

they will not face a blizzard of unwarranted litigation simply for 

complying with the law that Congress deemed necessary. The Domestic Fuels Production Act provides such certainty. Companies 

that use, manufacture, and sell transportation fuels that meet government-approved, government-mandated specifications and standards should not be punished for doing so. The Domestic Fuels Production Act accomplishes that goal, and we encourage Congress to 

act on this important legislation. 

Thank you, and I will be happy to respond to any questions you 

may have. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Mr. Drevna follows:] 

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Mr. SHIMKUS. Next I would like to recognize Mr. Dinneen, and 

you are recognized for 5 minutes. 

STATEMENT OF BOB DINNEEN 

Mr. DINNEEN. Thank you, Mr. Chairman. Thank you, Ranking 

Member Green, members of the committee. I appreciate the opportunity to be here today to speak in support of H.R. 4345, the Domestic Fuels Protection Act. 

I got to tell you, I think this is an important hearing in an important time, because consumers are facing rising gasoline prices, 

and if we do not find a way to reduce our dependency on imported 

oil, we will continue to suffer the consequences. 

At the outset I must note that this committee has already put 

in place a program that is today reducing our dependence on imported oil, creating jobs and economic opportunity across rural 

America, and reducing gasoline prices at the pump. That program 

is the renewable fuel standard, and that program is working. 

Consider these facts: In 2005, when the RFS was adopted, the 

U.S. imported more than 60 percent of our crude oil and petroleum 

products; today, in large part because of the RFS, we are just 45 

percent dependent on crude oil imports. 

Now, look, it is clear that increased domestic oil production and 

increased efficiency have played a role in that success as well, but 

consider this: Since 2005, 81 percent of the increased domestic fuel 

production in this country has been ethanol; 8 out of every 10 new 

gallons of fuel produced in this country has been ethanol. That is 

the success of the RFS. That is the success of ethanol. 

Now, as the ethanol industry has continued to grow, indeed the 

economic footprint of the industry has just gotten better as well. 

The 14 billion gallons of ethanol that were produced and used in 

this country last year created some 400,000 jobs. We added $43 billion to GPD, $30 billion to household income. That is a success that 

is being felt all across America. 

But perhaps most importantly, as consumers continue to face 

skyrocketing gasoline prices at the pump, is that ethanol is lowering the price consumers pay at the pump today. Two reasons for 

that. Ethanol today is a dollar cheaper than gasoline, so you are 

adding 10 percent ethanol today, hopefully 15 percent pretty soon, 

it is going to reduce consumer gasoline costs commensurately. But 

also, because ethanol is now 10 percent of the Nation’s motor fuel 

supply, we are reducing the demand for imported oil, and that is 

having an additional economic benefit for consumers. 

A study that was done last year said that the ethanol produced 

in 2010 reduced gasoline prices by 89 cents a gallon. That is a real 

benefit to consumers. That is a real benefit of the RFS. 

So I can say without hyperbole or reservation that the RFS has 

been the most successful energy policy this Nation has ever implemented. It should be vigorously defended and maintained and allowed to reach its full potential of 36 billion gallons in 2022. 

But the RFS is entering a critical period. The volumes of renewable fuels refiners are required to meet can no longer be met just 

by 10 percent ethanol. Greater volumes of ethanol and a greater diversity of biofuels and feedstocks will be necessary to meet the increasing volumes required by the RFS. Critically, these fuels will 

42 

be attempting to enter the marketplace amidst a complicated regulatory structure that favors incumbent technologies and discourages market access. Gasoline marketers deserve the certainty that 

they will not be penalized for utilizing a new fuel or fuel blend that 

has been approved for use by EPA. 

H.R. 4345 supports the RFS and facilitates the introduction of 

additional volumes of renewable fuel by assuring gasoline marketers don’t need to replace perfectly good underground equipment 

and above-ground dispensing apparatus to market renewable fuels. 

The current regulatory structure provides no pathway to certify existing equipment for anything other than fossil fuels. Even when 

test data demonstrates its safety, the Domestic Fuels Protection 

Act allows EPA to create such a process, thereby providing new 

fuels access to the marketplace without having to expend time and 

resources on new infrastructure unnecessarily. 

The bill also provides assurances to retailers that they won’t be 

subjected to frivolous lawsuits when they have abided EPA regulations. The legislation is narrowly tailored to achieve this goal. 

In sum, the RFA supports H.R. 4345 because it is consistent with 

the goals of promoting energy independence, through the increased 

use of renewable fuels as outlined by the energy bill. The Domestic 

Fuels Protection Act would eliminate technical barriers and speed 

the introduction of new fuels that can help decrease our Nation’s 

reliance on oil and lower gasoline prices. 

Chairman Shimkus, you have made a real commitment to the 

growth of this industry with your support of this legislation, with 

your support of the open fuel standard, which we also support, and 

I look forward to working with you and the rest of the committee 

to move this legislation forward. Thank you. 

Mr. SHIMKUS. Thank you very much. 

[The prepared statement of Mr. Dinneen follows:] 

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Mr. SHIMKUS. Now we would like to recognize Shannon BakerBranstetter. You are recognized for 5 minutes. 

STATEMENT OF SHANNON BAKER-BRANSTETTER 

Ms. BAKER-BRANSTETTER. Thank you. I am pleased to be here 

today representing Consumers Union, the public policy and advocacy arm of Consumer Reports. My comments today are also supported by Consumer Federation of America. 

Consumers Union opposes the Domestic Fuels Protection Act of 

2012 because it would unfairly burden consumers by shifting the 

risks of fuel-related damage entirely onto consumers. This bill uses 

EPA’s waiver authority under the Clean Air Act as a shield against 

consumer product liability, which would leave consumers solely responsible for damage caused by E15. 

In addition, the bill provides sweeping immunity for a broad 

array of fuel-related damage to consumer equipment and underground storage tanks and any resulting leakage that can devastate 

drinking water supplies. 

The State consumer protection law is still essential to protect 

consumers from marketing and selling fuels or additives in a manner that is likely to cause damage to consumers’ vehicles and 

equipment, but this bill preempts these important State protections. EPA’s approval of the fuel or fuel additive has little to no 

bearing on whether the fuel will damage consumer products. And 

EPA is in no position to determine the scope of a fuel’s effect on 

consumer products outside the emissions context. 

EPA’s approval does not imply that as product, the fuel or fuel 

additive will not pose other risks for consumer products. Immunizing fuel providers and vehicle and equipment manufactures from 

responsibility if something goes wrong, as this legislation would do, 

leaves consumers squeezed in the middle. If auto manufacturers 

are allowed to void warranties, and fuel providers are also immune 

from liability, consumers will be left to foot the bill for any damage 

caused by E15 or other fuels. 

In the case of E15, Consumers Union does not believe that the 

EPA label on misfueling goes far enough to prevent consumers 

from unintentionally misfueling, and we are not alone in this belief. Gasoline retailers, petroleum producers and marketers, and associations representing automakers, outdoor power equipment and 

marine engines all stated unequivocally in their comments in last 

year’s rulemaking on misfueling mitigation that despite the EPA 

label, consumers will misfuel, and the resulting damage could be 

significant. 

That appears to be the reason behind the industry seeking immunity from liability. Unfortunately, the proposed legislation, rather than trying to solve the problem of preventing damage from E15 

and easing its transition into the marketplace, would simply sweep 

aside all liability from E15 for everyone but the consumer. 

Our organization does not want to encourage lawsuits, but we do 

want to encourage responsible behavior in marketing and informing consumers about E15 and selling transportation fuels more 

broadly. We hope shared responsibility will actually stave off lawsuits. 

47 

Some level of misfueling is inevitable, but fuel providers should 

do all they can to minimize misfueling and ensure the safety and 

suitability of fuels they bring to market. By sharing responsibility 

for the fuels they sell, fuel providers will be motivated to enhance 

safety, minimize consumer confusion, and help consumers select 

the proper fuel. 

EPA labeling is useful and cost-effective, but it is not sufficient 

to prevent misfueling by consumers, with resulting damage to older 

vehicles and nonroad engines. Fuel providers are in the best position to provide tailored warnings, labeling, or other forms of education to consumers to prevent misfueling at the point of sale. Removing liability beyond posting the EPA label will decrease the motivation for adopting such techniques. Fuel providers know their 

clientele best and can proactively help them avoid engine damage. 

Consumers Union wants to encourage retailers to adopt local solutions to help reduce misfueling. Our suggestions include iconic labels on gas pumps to identify noncompatible products, dispenser 

prompts confirming E15 purchases, as well as separate dispensers 

for nonvehicle fueling. There are numerous other signage, outreach, 

and station configuration options that would help customers avoid 

misfueling, but the extension of immunity would likely undermine 

the incentive to maximize such measures. 

In conclusion, E15 retailers, fuel providers, marketers, State and 

Federal regulatory agencies, and consumer protection offices should 

all work together to inform consumers of allowable uses as well as 

risks of E15. This bill shifts the risks and costs associated with E15 

misfueling onto the shoulders of consumers and releases many industries from acting responsibly in marketing and selling transportation fuels. 

Thank you for your attention to consumer concerns, and I am 

happy to answer any questions. 

Mr. SHIMKUS. Thank you very much. 

[The prepared statement of Ms. Baker-Branstetter follows:] 

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Mr. SHIMKUS. Now I would like to recognize Mr. Brooks for 5 

minutes. 

STATEMENT OF K. ALLEN BROOKS 

Mr. BROOKS. Thank you, Mr. Chairman. Thank you for allowing 

me to testify today on behalf of the Office of the Attorney General 

of the State of New Hampshire. 

Before I begin my comments, I would like to specifically thank 

the chairman for his comments earlier about our existing MTBE 

case, and as reflected by Representative Bass, we do truly appreciate that. It has left me somewhat despondent because now I have 

a lot less to complain about, but I will do the best that I can in 

the time that I have. 

When we do work together on making this bill something that 

we can live with, we are very concerned about section 4(a), as you 

may well imagine. We understand that the purpose as set forth 

today, and as reflected by some panel members, is to protect essentially those people who are innocent who are simply complying 

with the law from facing liability. We have no issue with that. 

Anyone who is familiar with our MTBE lawsuits knows that we 

didn’t sue any station owners. We didn’t sue any convenience store 

owners. We were looking for redress from the people that we 

thought actually had a role and could have prevented the harm. In 

fact, it is our intention that a portion of whatever recovery we get 

go to actually help those convenience store owners clean up their 

property. 

So we take no issue with that, but we do believe that the existing 

section 4(a) as written is too broad, and whether that is MTBE or 

maybe—whatever the next equivalent of MTBE is, that we do need 

to work on this. It doesn’t appear to account for the behavior of the 

defendants in any particular case, and that is the troubling part. 

So again, I believe that with some work, through Representative 

Bass, perhaps we could address some of those issues, and I do appreciate that opportunity. 

And with respect to our existing MTBE case, we do feel it has 

to be absolutely clear that it does not impact those types of litigation and perhaps our case specifically as one of the—probably one 

of the biggest in the Nation right now. 

Section 4(b), which is what is called the safe harbor provision is 

also troubling, at least in its current form. It is not entirely clear 

what retroactive application this may or may not have, but any 

lack of clarity is a problem for us. When you have defendants that 

have significant means, they are able to raise any issue they possibly can, anything that becomes a source of delay to a small State 

like New Hampshire can be a considerable burden. We only have 

1.3 million people. Our MTBE lawsuit alleges that 1,551 sites are 

currently contaminated with MTBE, 40,000 private wells are probably contaminated with MTBE, as well as hundreds of public water 

systems. The cost of that cleanup is hundreds of millions of dollars. 

That is hundreds of dollars for every man, woman, and child in 

New Hampshire. That can’t be borne by the taxpayer. 

Specifically, section 4(b) the safe harbor provision talks about 

that nothing that essentially is approved by EPA shall become a 

defective product. I understand, at least tacitly from what I can 

59 

gather, that maybe the focus of that is on strict liability claims, 

claims for people who haven’t acted negligently, and specifically for 

the store owners and the lower station owners. And again, we don’t 

necessarily have an issue with the store owners, but first of all, 

there are circumstances where the type of strict liability claim has 

merit, and someone who had the ability to efficiently resolve a 

problem is in a better position to face that type of liability. 

But I would point out also that a defective product doesn’t necessarily only apply in strict liability cases. There are negligence 

cases where you can say someone was negligent by introducing a 

defective product. It appears from the language that this may affect somehow those types of claims, and certainly we would want 

to work with you to make sure that that didn’t happen, especially 

if that was an inadvertent consequence. 

Briefly with respect to the USTs, New Hampshire has a very robust program for monitoring USTs. We have recently taken care of 

every above-ground storage tank in the State in terms of regulatory 

compliance, which was a massive undertaking. We are now focused 

on USTs, and I think that the State has done a very good job. 

There are some things that we wonder under this bill whether 

New Hampshire can continue to do and just how broadly that immunity would sweep. For instance, I was alerted very recently that 

there are these things called yellow pipes, essentially connectors 

between UST tanks and other facilities. These tanks may have 

been approved by either EPA or UL at some point, they may have 

been compatible at the time they are in, but we have a program 

that monitors throughout time, so if in 20 years they are degraded, 

and we tell someone to fix it, we expect it to be fixed and not have 

someone come back and say, well, that is on the approved list, so 

go away. So that stands true for much of our program. 

Again, we look forward to working with you on these issues, and 

I am sure we will be in contact with Representative Bass. And I 

really do appreciate the opportunity to speak today. 

Mr. SHIMKUS. And we welcome you. So thank you. 

[The prepared statement of Mr. Brooks follows:] 

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Mr. SHIMKUS. Now I would like to turn, as I mentioned earlier, 

to the Ranking Member of the full committee Mr. Waxman so he 

has time to do his 5-minute opening statement. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman, and I want to thank 

our witnesses today for their presentations. I know that, Mr. Chairman, you indicated that you are going to be changing some of the 

bill, we saw some of the drafting was flawed. And you particularly 

commented about changes in the MTBE area for contaminated 

drinking water supplies. I appreciate that, but I think that this bill 

is flawed beyond just the drafting. With all due respect, the flaws 

of this legislation would eliminate all recourse for communities 

that have lost their drinking water supply to MTBE contamination. 

There are over 1,500 registered fuels and almost 7,500 registered 

fuel additives. This legislation would remove all liability for harm 

caused by these fuels and fuel additives. 

Some of these additives are rarely used because the oil companies understand that they are powerful contaminants, and if they 

enter the groundwater, they can do harm. They can damage small 

engines. They can have an impact on public health. We don’t know 

on this committee the facts for each of these 9,000 fuels and fuel 

additives. But under this bill, oil companies can now use them with 

impunity. 

Consider ETBE, which has many of the same chemical characteristics that have made MTBE such a difficult contaminant to clean 

up. This bill would exempt oil companies liability from for ETBE 

contamination. 

MMT is a fuel additive. It can severely damage engines and potentially endanger the public health. We should not eliminate liability from harm caused by MMT, but that is what this bill does. 

MTBE rarely contaminates water by itself. It is usually part of 

an underground flume of gasoline from leaking underground storage tanks. If we remove the liability shield for MTBE, what about 

the other constituents in gasoline, such as benzene that can also 

contaminate a community’s water supply? 

I certainly welcome greater clarity from the Chairman on how he 

plans to modify the bill. But the point is, to have this Committee 

pick and choose among the 9,000 fuels and fuel additives, providing 

liability protections for some and not others, sounds like the ultimate case of government picking winners and losers. 

If we exempt all of these 9,000 fuels and fuel additives, we are 

not picking winners and losers, except we are picking the losers. 

Because one point is for sure: that if we pass this law and absolve 

Exxon Mobil of any liability for selling unsafe, dangerous, or defective fuels, we will remove the incentive for responsible corporate 

behavior. 

There are many other reasons why this legislation, I believe, is 

pretty bad. 

Section 2 provides that if a convenience store owner determines 

that his or her underground storage tanks are compatible with the 

66 

fuel, then the owner is exempt from liability if leaks pollution—if 

his leaks pollute the neighbor’s drinking water. 

Section 3 says if someone sells you fuel that damages your car 

or destroys your boat engine, well, you are on your own. 

Section 4 has a safe harbor provision for all fuels and fuel additives that is similar to the one that Representatives Barton and 

Bass proposed for MTBE in 2005. Safe harbor is for the future, but 

protected New Hampshire’s lawsuit on MTBE when it was offered 

in 2005. It said other States couldn’t engage in lawsuits. And then 

it adds a provision to throw out civil actions that are already in 

court. And on top of that, it prohibits even filing certain civil actions. Making it against the law to turn to the courts for justice 

runs contrary to our basic values. 

I may be making some factually incorrect statements, because 

the Chairman is revising his bill, but the essence of this bill is to 

provide exemption from liability. and I am troubled by exempting 

from liability people who ought to be held accountable. 

This is, I think, Washington at its worst. There are trade associations that couldn’t agree on this bill. There are real challenges associated with implementing the renewable fuel standards mandated by Congress. But the only thing these trade associations 

could agree to is to shield themselves from any liability and shift 

the costs of harm from their product to the consumers or to the taxpayers. And this is not going to solve problems. It is only going to 

enhance our problems. 

Mr. Chairman, I regret to say that I have such troubles with this 

bill. I still hold out the chance that we can work on a bipartisan 

basis on some of these issues like reauthorizing the Safe Drinking 

Water Acts State of Revolving Loan Fund. That needs to be reauthorized. It should be done in a bipartisan manner. 

I am disappointed that we have gone in the opposite direction 

with this legislation. Rather than working to ensure our communities have safe and affordable drinking water, we are considering 

legislation to allow oil companies and others to pollute groundwater with impunity. That is very disturbing to me, and I hope 

that my worst fears are not going to be realized. 

I yield back my time. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

I always say that elected officials need to take big doses of humble pie and humility, and you continue to offer me a humble position, and that is a healthy thing in our process. So I am glad we 

got you to put in your opening statement. 

I would like to recognize myself for 5 minutes for questions. Mr. 

Brooks, I do appreciate this. You know, we haven’t really talked 

MTBE in this committee in a long time, so I think your concerns 

took a lot of us by surprise. So with respect to that—and that is 

why you have hearings. We have hearings to address concerns, get 

input, and try to adjust legislation, because it is really in the intent 

to move something forward to really—if the Environmental Protection Agency and Federal policy, which we passed not just in the 

2005 energy bill, but we expanded it in 2007. 2005, the Republicans were in majority. 2007, Democrats were in the majority. And 

we have continued to move the RFS forward, which is the national 

policy, so a legal fuel being administered by a local retailer may be 

67 

a family owned—I mean, the major premise is they shouldn’t be 

harmed by doing what the law is forcing them to do. 

But if you could help provide us summaries of your claims in the 

State actions on MTBE and underground storage tanks so we can 

exactly see what the basis of the lawsuits are, we would appreciate 

that. I think that would help us. 

Also, if you could summarize the defendants’ responses, that 

would help us in trying to go back to our legislative counsel to try 

to address these concerns. Would you be willing to do that as we 

move this legislation forward? 

Mr. BROOKS. Yes, Mr. Chairman. Would you like me to do that 

now, or just to work with Representative Bass and others on that? 

Mr. SHIMKUS. You can work with the committee and Representative Bass, and that would be helpful. 

Most people should know that we have just been called for votes. 

Of course, we have got 15 minutes to get to the first vote. We 

would like to get through at least my opening questions, maybe Mr. 

Green’s, and then we will then adjourn and come back, and we will 

have plenty of time to finish up afterwards. 

This question is to Mr. Eichberger, Mr. Drevna and Mr. Dinneen. 

Do you think that this legislation prevents Federal agencies besides the EPA from issuing or enforcing regulations? 

Mr. EICHBERGER. I do not, Mr. Chairman. I think the legislation 

basically sets a precedent that as long as we are complying with 

the regulations that are applicable, then we have some reasonable 

protections under law. 

Mr. SHIMKUS. Mr. Drevna? 

Mr. DREVNA. I agree with Mr. Eichberger, but the thing is we 

have to make sure that those regulations are tested. We have to 

make sure the fuels are tested. We have to make sure there is consumer protection before entering into any marketplace. 

Mr. SHIMKUS. And Mr. Dinneen? 

Mr. DINNEEN. I agree that with the assessment that this does 

not prevent other agencies from implementing new regulations. 

Mr. SHIMKUS. Does it affect OSHA in their involvement in safety 

and health issues? 

Mr. EICHBERGER. No. 

Mr. SHIMKUS. Mr. Drevna? 

Mr. DREVNA. No. 

Mr. SHIMKUS. Mr. Dinneen? 

Mr. DINNEEN. Let the record show that Charlie and I agreed 

again. 

Mr. SHIMKUS. It is a scary day. 

What about the Consumer Product Safety Commission? Does this 

legislation affect any actions that the Consumer Product Safety 

Commission might be involved with? 

Mr. EICHBERGER. Not to my knowledge, no. 

Mr. SHIMKUS. Mr. Drevna? 

Mr. DREVNA. Not in my reading of the bill, sir. 

Mr. SHIMKUS. Mr. Dinneen? 

Mr. DINNEEN. No, sir. 

Mr. SHIMKUS. Ms. Baker-Branstetter, do you agree with those 

summaries of not impacting Federal regulatory agencies to do the 

job that they are required to do, and CERCLA, RCRA, and all of 

68 

the other Federal laws and rules we have to protect the health of 

the public? 

Ms. BAKER-BRANSTETTER. I can’t speak to all of the environmental laws that you mentioned, but I do agree about OSHA and 

the other Federal agencies that you mentioned, although the Consumer Product Safety Commission may see increased recalls, as 

they have already, with E10 for some of the nonroad engines. 

Mr. SHIMKUS. But that would be actually a statement in support 

that we are not depriving the Consumer Product Safety Commission of their part in evaluating the market. 

Ms. BAKER-BRANSTETTER. I am not aware there is any impaction. 

Mr. SHIMKUS. Great, thank you. 

I have got 47 seconds. Mr. Dinneen, you say in your statement 

that the current regulatory structure provides no pathway to certifying existing equipment for anything other than fossil fuels even 

when test data demonstrates its safety. Can you elaborate on that? 

Mr. DINNEEN. Right now, if you have got an underground storage 

tank, and a new fuel is coming into the marketplace, or a new fuel 

blend like E15, Underwriters Laboratory does not recertify existing 

equipment. So even if you were to go and you were to demonstrate 

that there is a plethora of scientific evidence suggesting that there 

is no safety issue here, you cannot meet the regulatory burden. 

This bill provides a pathway to do that. 

Mr. SHIMKUS. Yes, and if former Speaker Hastert couldn’t get UL 

to at least address this issue, how can anyone do that? 

So I thank you. I yield back my time, and I recognize Mr. Green 

for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I apologize. Having 

known Mr. Drevna for many years and worked with him, I will not 

refer to you as Charlie. 

But let me clear up something before I ask questions. In your 

testimony you compare the immunity protection in this bill to protections afforded to pharmaceutical companies for vaccines; however, the National Vaccine Injury Compensation Program did not 

eliminate the liability. It created a no-fault system for patients injured by vaccines. So to be clear, it is a guarantee to injured people, 

the right to some recourse, unlike this bill which provides nothing 

to injured consumers. I think we are comparing apples and oranges, or maybe even apples and refined products. 

Mr. DREVNA. Well, I think, Mr. Green, we have to be certain that 

when a fuel or fuel additive has entered into the marketplace, it 

affords the same protections to everyone. It affords the same protections to the consumer, whether it is a 1995 automobile or a 2011 

automobile. It affords the same protection to an off-road vehicle, a 

handheld power equipment, a motorboat, or a snowmobile. 

In the testimony we compare it to that in the fact that the pharmaceutical folks have a series of things they go through, and that 

particular thing is absolutely government approved. Now, it may 

have something else in the marketplace, or some—an individual 

kind of reaction. What we are looking at is stop the bifurcation, 

stop the trifurcation of EPA, and make sure that all equipment is 

safe to use E15 or higher blends safely for all concerned. That is 

what we are talking about here. 

69 

Mr. GREEN. I know, but there is a difference between what we 

did with pharmaceutical and vaccine immunizations and what the 

bill does. I would like this bill to do what we did for the pharmaceutical industry, because, believe me, I want not only refiners— 

and I am proud to represent five of them—but also my retail outlets, because you are doing what the EPA tells you to do, and you 

shouldn’t be held liable, but there ought to be someone there, and 

the Federal Government ought to be the one doing it. 

Mr. DREVNA. Well, I can agree. I think we can agree the ultimate 

goal here is to protect the consumer. We are not trying to make an 

end run around any consumer. We are trying to protect the consumer. 

Mr. GREEN. A consumer with a 2000 vehicle shows up at a station and fuels, and that fuel is bad because it doesn’t fit that particular engine, you have to admit—you know I am not a big fan of 

E15, and Mr. Dinneen understands that. 

But be that as it may, I understand refiners and retailers are 

concerned about the liability and damage from E15, and I share 

your concern. That is why we have cosponsored—I have cosponsored a bill that—523, which was introduced by Mr. Gonzalez. As 

I mentioned in my statement, it is the use of renewable fuels mandated by Federal Law 523 says, the government should be responsible for any liability, and 523 is targeted for that response. 

But the bill before us today is entirely different. It goes far beyond just E15. It goes far beyond harm to equipment and engines 

and lets individuals end up absorbing the cost. 

Ms. Baker-Branstetter, what are some of the problems that vehicle or equipment owners may experience with E15? 

Ms. BAKER-BRANSTETTER. Well, in the nonroad engines, lawn 

mowers, trimmers, anything that requires gasoline, there could be 

corrosion in the gas tank. 

Mr. GREEN. I bought a new motor at Sears last month. That is 

a new lawn mower. It could not use E15 even though it was bought 

in 2012. 

Ms. BAKER-BRANSTETTER. Right. EPA has not approved for use 

in that appliance. 

Mr. GREEN. So we are going to have to be able to buy our gas 

somewhere else from another pump from one of the convenience 

stores? 

Ms. BAKER-BRANSTETTER. Yes. It is very expensive to buy pure 

gasoline. Sears does sell it, but it is about $24 and up per gallon. 

Mr. GREEN. But we can use E10 now in our lawn mowers? 

Ms. BAKER-BRANSTETTER. Correct. 

Mr. DINNEEN. I think that is an important point. Small engines 

do certify and warranty E10 in most of those vehicles, and an important distinction, E15 is not being mandated. It could be an option for those consumers that have a 2001 or newer vehicle and 

want to use it because it is appropriate for their—— 

Mr. GREEN. So are we going to be able to have an E10 and E15 

pump at the convenience stores? Is that really possible? 

Mr. EICHBERGER. It is most likely that you are only going to have 

a few markets where E15 is even going to be available. 

Mr. GREEN. Well, I will give you an example with only 30 seconds left. The only place that I can find anything but E10 in my 

70 

district is at a Kroger store, and that is because GM made an 

agreement with them to market ethanol. But in my area it is really 

difficult to find ethanol, even though I drive a flex-fuel vehicle. And 

so that is my problem, because we are an oil and gas area, and, 

you know, it is just difficult to get the renewables. 

Now, we can debate MTBE all day, because I lost that battle in 

2005, but we used to make MTBE in our district. Now, we still 

make it for export, but not near as much as we used to. 

But, Mr. Chairman, I know I am— I would love to, but I am running out of time; in fact, I am over time. 

Mr. SHIMKUS. The gentleman’s time is expired. You are welcome 

to southern Illinois. I will show you where all of my E85 stations 

are, and we will get past the E15 debate. 

Mr. GREEN. And I will take you to any refinery I have got. 

Mr. SHIMKUS. So we are going to recess this hearing, and we 

have three votes on the floor, which means, what, about an hour, 

45 minutes to an hour. So you can take a break, stretch your legs, 

get some coffee, and we will reconvene after votes. The hearing is 

recessed. 

[Recess.] 

Mr. SHIMKUS. If everyone could take their seats. The great hightech committee. I don’t care, I don’t need it. We will call the hearing back to order, and I would now like to recognize Mr. Whitfield 

for 5 minutes. 

Mr. WHITFIELD. Thank you very much. And I also would like to 

thank all of you for coming and testifying on this legislation today. 

I was listening to your opening statements and the comments 

made by Ms. Branstetter, and Henry Waxman and others. So we 

find ourselves in a situation where we have this Federal mandate 

on the renewable fuel standard. We have EPA with responsibility 

of administering the renewable fuel standard. We have EPA 

issuing regulations to mitigate liability in certain situations. And 

yet, as Ms. Branstetter pointed out, we do have a situation where 

cars that are older than a certain year, you can’t put E15 in it 

without damage. And small engines, and lawn mowers, and so 

forth, we have that—so we have this liability problem. We have a 

liability problem where people, through no fault of their own, can 

accidentally have this fuel put in, and they are going to suffer some 

damages because of it. So then the question becomes, well, who 

really is responsible for that? And in some ways you can say, you 

know what, the Federal Government should be responsible for it. 

So I just want to toss out a thought that I had which may not 

have any merit at all, but under the Clean Air Act, before they had 

the Equal Access to Justice Act, which, as you know, under the 

Equal Access to Justice Act, the legal fees are paid by certain 

plaintiffs who bring actions under the Clean Area Act, and then 

also the Equal Access to Justice Act actually pays some of the damages in some situations. 

So you could almost make an argument here that we could extend the ability to have access to the Equal Access to Justice Act 

under the Clean Air Act for people who end up suffering damages 

because of this Federal mandate because of Federal regulations, 

and through no fault of their own, they end up suffering damages 

for their motors, for their vehicles. And I was just—this may be so 

71 

off the wall, but I will just ask you if you have any comments on 

that or thoughts on that? 

Now, John Shimkus and I, Mr. Chairman Shimkus and I, and 

others have really been upset about the Equal Access to Justice Act 

because it lacks transparency. We never really know how much 

money is being paid out. But if there was ever a time—I mean, 

most of that money goes to environmental groups and others who 

want to enforce the Clean Air Act when they think EPA is not enforcing it. Here we have a situation where you have citizens suffering damages that they had no responsibility for whatsoever, and 

why should they not have access to that fund? So do you all have 

any thoughts on that? 

Mr. DINNEEN. Congressman, I will wade into it, because I don’t 

hear anybody else stepping up. 

I am not an expert on the Equal Access to Justice Act, but in 

terms of the premise of your question, and I can’t speak for other 

fuels or fuel additives—— 

Mr. WHITFIELD. Yes. 

Mr. DINNEEN [continuing]. But at least with respect to E15, I 

don’t think that there is any data anywhere that would suggest 

that one act of misfueling E15 into a pre-2001 vehicle is going to 

cause damage. 

Mr. WHITFIELD. OK. 

Mr. DINNEEN. EPA took the action that they did, I believe, in an 

abundance of caution, because there wasn’t sufficient data out 

there for older vehicles. It is real hard to test over the useful life 

of an engine a fuel in a vehicle that is that old. You can’t find vehicles to test. 

Mr. WHITFIELD. Yes. 

Mr. DINNEEN. And so they didn’t have appropriate test data. 

Now, higher blends of ethanol than E15 are used elsewhere in the 

world with no problems whatsoever. 

Mr. WHITFIELD. OK. 

Mr. DINNEEN. Brazil, as everybody knows, uses a blend of E25. 

Mr. WHITFIELD. OK. 

Mr. DINNEEN. So I don’t think that one act of misfueling, anybody would suggest, would cause damage that anybody would have 

to seek redress for. 

Mr. WHITFIELD. Well, I am certainly no expert on it. I was just 

reading Ms. Branstetter’s testimony, and I sort of came to that conclusion. 

So anybody else have any comments? Yes. 

Mr. DREVNA. Mr. Whitfield, again, I am no expert on that provision or that particular act. I think the focus as this—as the bill we 

are talking about today is focused on not only, you know, protecting 

the supply chain from lawsuits—— 

Mr. WHITFIELD. Right. 

Mr. DREVNA [continuing]. But I think we should also be focused 

on protecting the consumer. And I guess our—my agreement or Mr. 

Dinneen’s agreement with me has been short-lived, but—— 

Mr. SHIMKUS. Not surprising. 

Mr. DREVNA. You know, there is a reason why Congressman Sensenbrenner had letters delivered to him by the automakers. And I 

think we are letting the theory go. I think it has to be addressed. 

72 

You know, we are talking about 2000 vehicles backwards, 1999— 

whatever. I agree, there are not that many out there. But there is 

a reason why those automobile manufacturers said they will not 

warranty anything over E10. There is a reason why the marine 

manufacturers say they will not warranty anything over E10. 

There is a reason why the outdoor power equipment people say 

they will not warranty anything over E10. 

So, I mean, you know, there is a—it is not because they are trying to, you know, void any warranties; it is because they are trying 

to tell the consumer, be careful, let us not do this. We haven’t had 

enough testing on this stuff yet. 

So yes, we fully support this bill. And as long—as I said earlier, 

as long as the RFS with its ever-increasing mandates for increased 

renewables blended into gasoline is the law of the land, that I believe just not—just not only refiners, but everyone down the supply 

chain has to be protected. 

But I also believe that the consumer ultimately has to be protected, and it can’t be on some four-by-four little thing on a pump 

that says—I mean, I am quite surprised at EPA itself that—when 

in the history of EPA has compliance with a major environmental 

law ever been placed on the consumer? And that is what they are 

doing. 

Mr. EICHBERGER. If I can make one quick comment. I don’t know 

anything about the Equal Access to Justice Act, but this legislation 

is not talking about the procedures that EPA goes through to set 

certain rules. If we want to talk about EPA not doing what they 

are supposed to do, that is a different topic. Right now we have a 

process in place. We have rulemaking. We have comments. There 

were—I don’t think the three of us agreed on what the misfueling 

label mitigation measure should be for E15. EPA made a decision. 

If we don’t like the decision process, let us talk about that at another forum, but once a decision is made, we have to have something to rely upon. We have to be able to live under the rule of law, 

and that is what we have right now. 

Mr. SHIMKUS. The gentleman’s time is expired. Now I will now 

just take a brief second. 

You know, the whole diesel story I gave as a prelude, you can’t 

do that anymore, because they have retrofitted the nozzles. And 

the reason why I know that is I was about to do it one time. Here 

I was blaming staff; now I—and the system caught me. So now I 

would like to recognize Mr. Latta for 5 minutes. 

Mr. LATTA. Well, thank you, Mr. Chairman. Actually, that is 

leading right into my question, about your situation with that diesel. And, you know, late at night, as Members of Congress are at 

home, we put a lot of fuel in our cars, and there is one time I actually picked up the diesel nozzle, and I looked at the ends and said, 

well, at least I couldn’t have put it into the car at that time, or I 

would have been in big trouble like you had a while back. 

But if I could ask Mr. Eichberger this question: How common is 

it for people to maybe misfuel when they are at a pump? 

Mr. EICHBERGER. Well, right now there is not a whole lot of that 

happening because most dispensers have three grades of gasoline. 

The dispensers are usually on a different nozzle, a different nozzle 

size, sometimes a different dispenser completely. E85 is typically at 

73 

a different dispenser and very clearly marked and labeled. Right 

now we don’t have a whole lot of incidents of that occurring. 

Mr. LATTA. Let me follow up then. Do you believe that the posting of the legally required notices would deter a lot of people from 

using the wrong fuel when they are at the pump? 

Mr. EICHBERGER. It will deter some. It really is going to come 

down to what is the price differential. And unfortunately, consumers are sometimes willing to take risks with their vehicles in 

order to save a couple of pennies at the pump. 

The decal requirement—and keep in mind this decal is about one 

and a half times bigger than any other decal identifying fuel identity on the dispenser—has to be put right onto the selector area, 

so you will see it. You cannot push an E15 button without seeing 

an E15 sign. So you are going to be well informed. Some people will 

say, you know what? It is 5 cents cheaper, I am doing it anyway. 

And that is just the reality of it. 

Consumers—when we were going from lead to unleaded, leaded 

gasoline was less expensive. We had nozzle size restrictions like on 

diesel fuel. People took can openers and pried open their fill pipes, 

or stuck funnels in their cars to put unleaded fuel in theirleaded 

cars—or leaded fuel in their unleaded cars. EPA fined retailers for 

that action. That is why we are so concerned. 

No matter what EPA does in terms of misfueling, a consumer 

who wants to misfuel will find a way to misfuel, and the retailer 

cannot prevent that independent action, just like we couldn’t prevent people from manipulating their vehicles in the 1980s to put 

leaded fuel in unleaded cars. 

Mr. SHIMKUS. Will the gentleman yield for 1 second? 

Mr. LATTA. I yield to the chairman. 

Mr. SHIMKUS. Just to make a point, we have the 85 pumps all 

over southern Illinois. You do have individual citizens mixing at 

the retail location. So they may fill half their tank up with E85 and 

then the other half with regular gasoline. So that then what is the 

litigation issue there, and who is blamed for a process when it was 

the individualconsumer’s conscious decision to mix at the pump? 

And that is kind of part of the reason why we have been talking 

about this. 

Mr. LATTA. Well, thank you. Just to kind of continue on that line 

of questioning, you know, what equipment would have to be replaced? We are talking about, you know, most of the pumps I see 

you have got three grades of gasoline, without—if you don’t have 

the ethanol right there, or diesel, you have one, two, three. And if 

you are talking about another, you know, with the E15, I assume 

you would have to have put in another pump, and then you would 

have to put in more tanks? Could you fill me in on that? 

Mr. EICHBERGER. Well, each retailer will have to decide how they 

want to configure their station, assuming the equipment is compatible, and that is a big assumption, assuming you have compatible 

equipment. Most retail stations have two underground storage 

tanks, a regular and premium. We blend through the dispenser in 

a blender pump to give you midgrade. 

In order to offer an E85 or an E15 mix, we would probably have 

to—we would have to dedicate one of those tanks to either an E85 

or a higher-grade ethanol blend in order to get that product. That 

74 

would likely lead to us reducing our overall gasoline offer by a full 

grade, unless we have room to put in another tank. Now, there are 

some places where you don’t have the room, you can’t get the permitting. Putting in a tank is expensive. There is a retailer in California that wanted to put in a diesel tank. It is going to be 

$200,000 just to put in a 6,000-gallon tank. So you look at retailers 

that are making $35- and $40,000 in pretax profit, $200,000 for installation is a pretty hefty bill to pick up. 

Mr. LATTA. You know, and also just follow-up with my last 39 

seconds here, without the legislation, who would be liable pretty 

much if an individual puts that incompatible fuel in their—you 

know, that is a big concern out there. 

Mr. EICHBERGER. Under the Clean Air Act, the retailer could be 

find $37,500 per day for each incident for allowing the consumer 

to do that. And so the liability could fall directly on the retailer for 

the independent action on the consumer. 

Mr. LATTA. Thank you, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes my colleague from California Mrs. Capps for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman. And thank you, each of 

you, for your presence here today and your testimony. 

In my congressional district and across the country, the effects 

of MTBE contamination have been significant. Cities like Cambria 

and Oxnard on the central cost of California have lost their public 

water supply sources, and homeowners have lost their private 

wells. And so many have learned through personal experience 

when fuel containing MTBE leaks from an underground storage 

tank, the chemical travels quickly through the soil into sources of 

drinking water. It makes the water foul-tasting and undrinkable. 

Studies suggest that it causes cancer. 

It is very expensive to clean up. According to drinking water utilities, the total cost to clean up MTBE contamination of public 

water systems in this country could be as high at $85 billion. Cities 

and towns in my district are still seeking to recover their cleanup 

costs from the oil companies that caused the contamination. If this 

legislation passes, its liability shield will halt those lawsuits, and 

leave these communities, some in my district, with MTBE-contaminated water supply stranded with billions of dollars in cleanup 

costs while the companies that created and distributed the product 

may pay little or nothing at all. 

Mr. Brooks, I would like to direct a few questions to you. Can 

you tell me about the costs and difficulties your State of New 

Hampshire has faced with MTBE contamination? 

Mr. BROOKS. Thank you, Representative Capps, for your question. It has been a significant concern. Again, our lawsuit alleges 

that to actually find and clean up all of the MTBE in the States, 

we are talking easily in the hundreds of millions of dollars. Already, through various funding mechanisms, we have spent—depends on your estimate, but overall for gasoline, hundreds of millions of dollars and a significant portion of that for MTBE. 

As you said, MTBE costs more to clean up than other contaminants. It travels faster, stays longer, and it costs more money. So 

we have additional costs, and these costs aren’t going to go away 

soon because it is a long-lived contaminant. 

75 

In New Hampshire, we have different kinds of aquifers. We have 

some stratified aquifers, which is essentially sand, but we also 

have a lot of bedrock with fractures. MTBE gets in a fracture, and 

you cannot tell where it is or where it is going for many, many 

years, and it will still be there. So we are talking about a significant cost. 

Mrs. CAPPS. Do you believe that New Hampshire citizens should 

bear these costs of cleaning up pollution? 

Mr. BROOKS. No, and I was gratified to hear that it seems to be 

a fundamental theme of many people on the committee that people 

who are harmed need redress. And that is a fundamental principle 

for us as well is that someone who has done nothing wrong. We 

talked about some instances of someone who puts fuel in their 

tank, you know, possibly having some behavior or warranty voided 

or something like that, and that is certainly a concern. We have 

many instances where the person wasn’t involved at all. They are 

a homeowner. They might be several hundred feet away or more 

from a convenience store. Their property, their home, which is 

something that is we consider sacred in New Hampshire and other 

places, has been affected, and they have—they need to have redress. 

Mrs. CAPPS. New Hampshire, you know, is not alone in its concern about this legislation. The Association of California Water 

Agencies is very concerned about this bill and has sent a letter asking us—and I think it has already been held up by our ranking 

member—asking us to ensure that these lawsuits are not dismissed. As they point out, this bill will further strain communities 

already struggling with the cost to repair aging drinking water infrastructure and further burden ratepayers in those communities. 

Do you agree, Mr. Brooks? 

Mr. BROOKS. Yes. 

Mrs. CAPPS. The California water agencies ask us, and I am 

quoting now, ‘‘to ensure that no local community or drinking water 

system will be left without the ability to recover costs associated 

with remediating MTBE or other similar contaminations of drinking water sources.’’ 

Is that a position with which you would agree, and perhaps you 

speaking on behalf of the State of New Hampshire? 

Mr. BROOKS. We do. And it is very important for a State like 

New Hampshire that has a rural character. We have only 1.3 million people; 200,000 private wells supply drinking water to people 

of New Hampshire. Those people don’t have the ability to spend a 

lot of money to clean things up, and certainly don’t have the ability 

even sometimes to sue for redress. So it is very significant that 

that type of community has the ability to do what they need to do. 

Mrs. CAPPS. Thank you. 

We have already heard today that this legislation will be redrafted so that it is no longer a liability shield for MTBE. If this 

bill is amended so that MTBE is not covered, will you still be concerned about your State’s ability to recover costs when contamination from other fuels, the next MTBE, if you will, and fuel additives 

occur in the future? 

Mr. BROOKS. We will be concerned any time where someone has 

been harmed, especially wrongfully, by the conduct of another 

76 

party where they could not seek redress. So we would want to 

make sure that someone has some means for compensation if actually they have been harmed. 

Mrs. CAPPS. Thank you. 

I share these concerns, and I urge this committee to heed the request of those water agencies to make sure that communities are 

not left without the ability to recover costs when polluters contaminate their water supply. 

I yield back. 

Mr. SHIMKUS. The gentlelady yields back her time. 

Seeing no other Members, I can ask, Mr. Green, do you have 

anything else you want to add? 

Mr. GREEN. Mr. Chairman, we could probably talk all day, and 

let Charlie and Bob talk, too, and—but I appreciate you doing this 

legislative hearing. I know we were just talking, and I said it publicly, there is a solution. We need to do this for both the refiners 

and our retailers, and hopefully we can work together and come up 

with a plan. 

Mr. SHIMKUS. Seeing no other Members, this hearing is adjourned. 

[Whereupon, at 11:25 a.m., the subcommittee was adjourned.] 

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