[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
          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

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman
JOE BARTON, Texas                    HENRY A. WAXMAN, California
  Chairman Emeritus                    Ranking Member
CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
  Vice Chairman                      DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California         TAMMY BALDWIN, Wisconsin
CHARLES F. BASS, New Hampshire       MIKE ROSS, Arkansas
PHIL GINGREY, Georgia                JIM MATHESON, Utah
STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio                JOHN BARROW, Georgia
CATHY McMORRIS RODGERS, Washington   DORIS O. MATSUI, California
GREGG HARPER, Mississippi            DONNA M. CHRISTENSEN, Virgin 
LEONARD LANCE, New Jersey                Islands
BILL CASSIDY, Louisiana              KATHY CASTOR, Florida
BRETT GUTHRIE, Kentucky              JOHN P. SARBANES, Maryland
PETE OLSON, Texas
DAVID McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
TIM MURPHY, Pennsylvania             GENE GREEN, Texas
  Vice Chairman                        Ranking Member
ED WHITFIELD, Kentucky               TAMMY BALDWIN, Wisconsin
JOSEPH R. PITTS, Pennsylvania        G.K. BUTTERFIELD, North Carolina
MARY BONO MACK, California           JOHN BARROW, Georgia
JOHN SULLIVAN, Oklahoma              DORIS O. MATSUI, California
CHARLES F. BASS, New Hampshire       FRANK PALLONE, Jr., New Jersey
ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
CATHY McMORRIS RODGERS, Washington   LOIS CAPPS, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              HENRY A. WAXMAN, California, ex 
CORY GARDNER, Colorado                   officio
JOE BARTON, Texas
FRED UPTON, Michigan, ex officio

                             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


          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.
    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 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 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 
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 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.
    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 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.
    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 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. 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 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 Baker-
Branstetter. 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.
    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 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 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 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 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.
    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 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 
high-tech 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 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. 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 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 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.
    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 
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.]
    [Material submitted for inclusion in the record follows:]
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