[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[House]
[Pages 15783-15789]
[From the U.S. Government Publishing Office, www.gpo.gov]




     APPOINTMENT OF CONFEREES ON H.R. 6, ENERGY POLICY ACT OF 2005

  Mr. BARTON of Texas. Mr. Speaker, I ask unanimous consent to take 
from the Speaker's table the bill (H.R. 6) to ensure jobs for our 
future with secure, affordable, and reliable energy, with a Senate 
amendment thereto, disagree to the Senate amendment, and agree to the 
conference asked by the Senate.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.


                Motion to Instruct Offered by Mrs. Capps

  Mrs. CAPPS. Mr. Speaker, I offer a motion to instruct conferees.
  The Clerk read as follows:

       Mrs. Capps moves that the managers on the part of the House 
     at the conference on the disagreeing votes of the two Houses 
     on the Senate amendment to the bill H.R. 6 (An Act to ensure 
     jobs for our future with secure, affordable, and reliable 
     energy) be instructed not to agree to the inclusion of any 
     provisions in the conference report modifying the liability 
     with respect to methyl tertiary butyl ether (MTBE).

  The SPEAKER pro tempore. Pursuant to clause 7 of rule XXII, the 
gentlewoman from California (Mrs. Capps) and the gentleman from Texas 
(Mr. Barton) each will control 30 minutes.
  The Chair recognizes the gentlewoman from California (Mrs. Capps).
  Mrs. CAPPS. Mr. Speaker, I yield myself 5 minutes.
  Mr. Speaker, this motion would do one thing: it urges conferees to 
reject a provision granting MTBE manufacturers a waiver from liability 
for the damage their products have caused to groundwater supplies 
throughout this country.
  This broad liability waiver for MTBE manufacturers should be rejected 
for a number of reasons.
  First, and most recent, a new draft risk assessment on MTBE written 
by the Environmental Protection Agency has concluded that MTBE is a 
likely, and I quote ``likely,'' human carcinogen. According to the 
publication ``Inside EPA,'' the study pinpoints kidney and lymph node 
tumors as a result of MTBE exposure.
  Up until now, most of the concern about MTBE contamination has been 
that a tiny bit of it makes water smell and taste like kerosene, 
rendering the water unusable. But now EPA has released information that 
says MTBE in water may mean more than an unpleasant taste or smell: it 
may threaten your health.
  MTBE contamination is a huge problem, and it is not going away. To 
date, this contamination has been found in over 2,300 water systems 
serving 36 States. Two recent studies have reconfirmed that the cost of 
removing MTBE from drinking water is substantial. The new studies put 
MTBE cleanup costs in the range of $25 billion to $33 billion and could 
be as high as $85 billion or more, and that is the cost for existing 
pollution.
  Third, documents unearthed in court cases show that MTBE 
manufacturers knew as early as the mid-1980s about the damage their 
products caused to groundwater sources; and yet they continued to add 
it to gasoline. That is why juries have found that MTBE is a defective 
product. They also found that oil companies acted with malice because 
they knew what could happen with MTBE, and they did not do anything to 
stop it. That is why these oil companies have settled their cases. They 
did not pay millions of dollars to Tahoe, Santa Monica, and other 
communities out of good citizenship. They did it because they knew that 
juries would lower the boom on them for their actions. That is why this 
bill voids defective product lawsuits, because that is the way oil 
companies are being held accountable for their actions.
  Fourth, CBO has found that the liability waiver in this House bill is 
an unfunded mandate. This protection for MTBE manufacturers is a huge 
unfunded liability that would shift the cost of the cleanup, literally 
billions of dollars, on to towns, cities, and water districts, on to 
your constituents, I say to my colleagues; and that is just plain 
wrong.
  Mr. Speaker, 2 months ago, the House narrowly voted down my amendment 
to strike the MTBE liability waiver from our bill. Many Members voted 
``no'' because of some impending deal to address the cleanup issue once 
and for all. Well, reports of this deal have leaked out. They are not 
pretty, and they will not address the MTBE contamination that your 
constituents face today or may face in the future.
  The deal would provide full liability protection to MTBE producers 
and establish a $4 billion to $8 billion trust

[[Page 15784]]

fund to address the contamination crisis. One big problem: remember, 
the cleanup of MTBE contamination is going to cost between $25 billion 
and $33 billion and could be as high as $85 billion, dwarfing this 
deal's cleanup fund.
  Another problem: at least half of this fund comes from taxpayers. Mr. 
Speaker, why should taxpayers pay to clean up MTBE contamination? MTBE 
manufacturers caused this problem, and they knew it when they did it. 
They should clean it up.
  This is a deal written by the industry for the industry. And it is no 
surprise that no one from the water industry, no cities, no counties, 
the people who will have to deal with the contamination, none of these 
people support this bill.
  Finally, these are the controversial MTBE provisions that killed the 
energy bill in the last Congress. The Senate bill did not include MTBE 
provisions in their bill, and for good reason. They knew that giving 
these manufacturers protection from liability would end the chances of 
the bill becoming law. With the country continuing to experience record 
energy prices, the need for comprehensive energy legislation is clear, 
and MTBE provisions once again threaten the passage of this bill.
  Mr. Speaker, the MTBE industry knowingly caused widespread 
groundwater pollution, and now it is trying to shirk its responsibility 
to the communities living with this huge problem.
  So I urge my colleagues to support the Capps motion to instruct 
conferees and to reject this ridiculous bailout for the MTBE industry.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1400

  Mr. BARTON of Texas. Mr. Speaker, I rise just to say that I object to 
the motion to instruct.
  Mr. Speaker, I reserve the balance of my time.
  Mrs. CAPPS. Mr. Speaker, I yield 1 minute to the gentlewoman from 
California (Ms. Pelosi).
  Ms. PELOSI. Mr. Speaker, I rise in strong support of the motion to 
instruct. I commend the Congresswoman for her extraordinary leadership, 
for working to protect communities from MTBE and from unfunded mandates 
that shift of cost of clean-up to communities without the funding to 
match.
  For 5 years, Republicans have pushed policies to give billions of 
dollars to special interests which then reaped record profits. 
Republicans are not listening to the American people's concerns about 
the need for save drinking water, clean air, or for lowering the price 
at the pump of gasoline.
  Instead of siding with the Americans strangled by high gas prices, 
President Bush's own Department of Energy said that the energy bill 
would actually raise gas prices, and that the President's proposals 
would increase our foreign oil dependance by 85 percent.
  But nowhere is Republican pandering more on display than in the 
provisions relating to MTBE. Mr. Speaker, as you probably know, a few 
drops of MTBE can poison whole drinking water supplies. The industry 
knew that MTBE would leak from gasoline storage tanks when they lobbied 
for its use.
  They deliberately hid this fact from Congress. The result of their 
malfeasance is clear: MTBE contaminated groundwater in every single 
State in America with estimated clean-up costs between $25 billion and 
$85 billion.
  Incredibly, instead again of siding with communities poisoned by 
MTBE, House Republicans lined up to protect polluters from liability. 
Last year, the Majority Leader, the gentleman from Texas (Mr. DeLay) 
added language to the energy bill to protect MTBE polluters knowing it 
would kill the legislation and he did the same this year.
  The House-passed bill protects MTBE producers form lawsuits. By their 
actions, House Republicans imposed an unfunded mandate on local 
communities to protect polluters. This is contrary to a fundamental 
principle that in our society polluters must pay for the damage they 
cause, not our children with their health.
  The Republicans said to localities, not only will we protect the 
people who poisoned your water, but we are going to leave you with the 
bill.
  Mr. Speaker, we are spending our time debating yet another huge 
subsidy for profitable oil and gas companies at taxpayer's expense, 
when we should be focusing on what consumers want, clean water to drink 
and relief from high prices at the pump.
  This is a disgrace. Conferees should insist on the Senate version 
that excludes this shameful MTBE liability waiver. Only then can we 
reaffirm our commitment to strengthening community by promoting a clean 
and healthy environment where polluters pay again for the damage they 
cause, not our children with their health.
  Again, I thank the gentlewoman from California, (Mrs. Capps) for 
seizing this opportunity as she did when the House first considered 
this legislation. I urge my colleagues to vote for the motion to 
instruct so that we can end this disgraceful giveaway to oil companies 
and MTBE polluters that poison water all across the country.
  Mrs. CAPPS. Mr. Speaker, I yield 3 minutes to my colleague, the 
gentleman from Massachusetts (Mr. Markey).
  Mr. MARKEY. Mr. Speaker, I rise in support of the Capps motion. The 
House Energy Bill contains a so-called ``Fuels Safe Harbor'' that hands 
over get-out-of-court-free cars to the big oil companies responsible 
for polluting our communities' drinking water supplies with MTBE. The 
MTBE safe harbor is really a pirates cove for corporate polluters.
  If enacted, it will let corporate polluters off the hook for water 
contamination and other damages to the environment and public health 
resulting from MTBE contamination.
  A few months ago, President Bush said, ``I will tell you, with $55 
oil, we do not need to give incentives to oil and gas companies to 
explore, there are plenty of incentives.''
  Well, the President is right. Oil prices are now up to $60 a barrel, 
but the Republican energy bill would nonetheless hand billions of 
dollars worth of tax and regulatory subsidies over to wealthy oil 
companies. The MTBE liability waiver is only the tip of the vast 
iceberg of subsidies in this bill. $8 billion in tax subsidies and 
incentives for energy companies in the energy bill; $3 billion for the 
oil and gas industry; billions more in the Senate bill for the oil and 
gas industry.
  There is something called royalty relief for the oil industry, which 
basically suspends requirements for oil companies to pay the Government 
for drilling on public land. There is a $2 billion subsidy for 
ultradeep water drilling R&D, and they also get a special exemption 
from the Clean Water Act.
  With oil prices hovering at $60 a barrel, they do not need these 
breaks. Exxon reported $25 billion worth of profits last year; Conoco, 
$8 billion; royal Dutch Shell, $18 billion; BP, $16 billion; Chevron-
Texaco, $13 billion. They do not need any incentives from the taxpayer, 
they are already in the pockets of the very same people as consumers, 
tipping them upside down.
  And just think about it. The oil companies are making more money than 
they can ever spend, and Congress, in this bill, is going to pass a 
bill totally immunizing MTBE producers from any legal liability for 
producing an inherently defective product.
  If there is an industry that can pay for this problem, it is the 
industry that has made more profits in the last year than any industry 
in the history of the world. We are going to do this despite scientific 
studies which have shown that MTBE causes cancer in laboratory animals.
  Ladies and gentlemen, this is a huge mistake, the House ``safe 
harbor'' from legal liability will shift the burden of cleaning up MTBE 
contamination from the companies back to the local community. So again, 
the consumer will be paying high gasoline prices, high home heating oil 
prices, they will be paying out of their tax dollars to give subsidies 
to the oil companies, and then they will have to go into their pockets 
again to clean up the mess which is left over.

[[Page 15785]]

  Vote yes for the Capps motion to instruct the conferees.
  Ms. CAPPS. Mr. Speaker, I yield 3\1/2\ minutes to the gentlewoman 
from California (Ms. Eshoo).
  Ms. ESHOO. Mr. Speaker, I thank my distinguished colleague for her 
leadership, not only on this issue, but on so many others that come 
before the House Commerce Committee.
  Mr. Speaker, I rise in support of this motion to instruct. It may 
indeed be our very last chance to get something right in this flawed 
energy bill, so-called energy bill. According to the independent 
analysts at the U.S. Energy Information Administration, this bill has 
virtually no impact on energy production, on consumption, on imports or 
on prices at the pump.
  In fact, these independent analysts say that gas prices will 
increase. So wake up, America. Look what is happening to you under a 
so-called energy bill. The price that you pay at the pump is going to 
go up. Is that what we need the Congress for? I do not think so.
  If the House bill did nothing, that would be one story. But the truth 
is that the bill imposes huge costs on taxpayers. And that is what we 
are protesting here on the floor, and why there is this motion to 
instruct.
  Probably the worst provision of the bill is the MTBE liability 
waiver. What is it? It provides a safe place, a safe harbor that 
prevents refiners and MTBE manufacturers from being held accountable in 
court for selling a defective product. What this safe harbor does is 
relieve the industry of any obligation to pay even a portion of the 
estimated $29 billion to $85 billion cost of cleaning up drinking water 
that has been contaminated by the product.
  So who pays? You pay. Not those that are responsible for it, but you. 
All under the guise of we want to lower your taxes. Imagine what is 
going to happen in your local community. Do you think your local 
government has this money? Mine does not.
  The Congressional Budget Office calls this an unfunded mandate--you 
have to do it, but there is no money to do it--on local and State 
governments, because they have to pay for the clean-ups on their own.
  This is not just a matter of accounting. It is a matter of public 
health. Just last week it was reported in a new EPA draft report that 
MTBE is a likely carcinogen. And when MTBE is found in drinking water, 
we know we have to clean it up. There is not an option on this. I do 
not want my kids drinking it. I do not want yours to.
  Successful lawsuits in California have led to substantial settlements 
with oil companies. And these settlements have enabled communities to 
begin cleaning up their drinking water supplies. Now, because 
communities are winning these suits, the industry wants Congress to let 
them off the hook.
  Mr. Speaker, there is no reason to do this. If they are losing in 
court, it is because they have a lousy case. And there is a reason that 
these settlements are taking place, the industry is responsible for the 
mess and they have known about the threat for years.
  So why is a safe harbor being created for the industry? No one 
outside the industry thinks this is a good idea. In May of this year, 
the Governor of California wrote to us and said that this provision 
should be stripped from the bill. I think that my California colleagues 
should be paying attention to that.
  Along with the Governor, the National League of Cities, National 
Association of Counties, the Association of California Water Agencies 
and many others have sent letters voicing their opposition. This is a 
bad provision.
  Last Congress the provision sank the bill. And it should have. This 
year we should strip it from the bill. Vote for the motion to instruct.
  Mrs. CAPPS. Mr. Speaker, I yield 3\1/2\ minutes to the gentleman form 
Maine (Mr. Allen).
  Mr. ALLEN. Mr. Speaker, I rise in support of the gentlewoman from 
California (Mrs. Capps') motion to instruct energy bill conferees to 
strike the MTBE liability waiver provision from the final energy bill.
  The conferees should understand that we want an energy bill, not an 
energy subsidy bill. What is more important? The profits of oil 
companies or the health of our people and the financial health of 
States and communities in which we live?
  The liability waiver assumes that Congress mandated MTBE use in 1990. 
But that is really not true. Congress mandated the use of an oxygenate 
in reformulated gasoline, but MTBE is not and was not the only 
oxygenate.
  MTBE was used extensively in non-RFG areas where no mandate applied. 
Furthermore, MTBE was marketed and used extensively before 1990. 
Maine's experience really illustrates the MTBE problem.
  Maine volunteered to phase into the Federal reformulated gas program 
in 1991. And in 1995 reformulated gas containing MTBE entered the 
marketplace in Maine. Two years later, in 1997, the Maine Bureau of 
Health reported MTBE in 7 percent of Maine public water supplies.
  One year later, 1998, MTBE was detected in 16 percent of the public 
water supplies. So starting that year, 1998, Maine began phasing out 
the use of MTBE, and in 2007, Maine will impose a partial ban of MTBE.

                              {time}  1415

  This liability waiver creates a massive unfunded mandate. Communities 
face a 25 to $85 billion bill to clean up the MTBE. And juries in some 
cases have recently found the MTBE manufacturers, lax Texas oil firms, 
were dishonest about the impact of their product on groundwater. The 
juries concluded that the companies are liable for the cost of cleanup.
  One reason is when you go back to 1981, the Shell engineers were 
joking with each other that MTBE stood for ``menace threatening our 
bountiful environment'' or ``most things biodegrade easier.'' They knew 
what the impact of this substance would be.
  Just this month, just this month EPA developed a draft risk analysis 
that concludes that MTBE is a ``likely'' human carcinogen. If 
finalized, this would dramatically increase the cost of MTBE cleanup.
  So this liability waiver provision takes away the best claim that 
communities and States have to require manufacturers to help clean up 
the mess they created by manufacturing a defective product.
  Now, finally, we hear a lot about a deal in the works to address this 
crisis. I would ask, will this deal protect communities from having to 
pay to clean up MTBE? Will this deal cover the cost of cleaning up the 
water, or will it just pay to remove leaking tanks? Will this deal be 
subject to an annual appropriations at a time when funding for clean 
water programs here in Congress is being cut, or will it charge cleanup 
costs to the American people in order to bail out Texas oil companies?
  I encourage all of my colleagues to support the motion.
  Mrs. CAPPS. Mr. Speaker, I yield 2 minutes to the gentleman from 
Massachusetts (Mr. McGovern), a member of the Committee on Rules.
  Mr. McGOVERN. Mr. Speaker, I rise in strong support of the Capps 
motion to instruct.
  Though this administration and the Republican majority often stress 
the need for an energy bill, citing rising gas prices, this bill will 
not do anything to lower energy prices in this country. Gas prices 
continue to rise, and this bill does nothing to lower them.
  The Republican energy bill does nothing to reduce our Nation's 
dependency on foreign oil. It harms our environment, and in the end it 
is nothing more than a big fat giveaway to the oil and gas industries 
at a time when they do not need these giveaways.
  If that were not bad enough, oil companies have knowingly 
contaminated our Nation's water systems with the fuel additive MTBE, 
polluting the same drinking water that serves 45 million Americans. 
These companies were fully aware of MTBE's ability to seep in the water 
supply, and they understood the impact that this potential human 
carcinogen could have on public health. Yet they still chose to use 
MTBE for nearly 20 years. And now the Republican leadership wants to 
protect these

[[Page 15786]]

same oil companies from any liability for the damages they have caused.
  Instead, they want to leave it up to our State and local governments 
to pick up the tab. This is unconscionable. This motion to instruct is 
based on common sense. These companies should be held responsible for 
the damages they caused.
  Now, we all know the arguments. This is an unfunded mandate passed on 
to our State and local governments. Many communities have filed 
legitimate suits to recover the costs of MTBE cleanup estimated to 
exceed $29 billion. Yet this bill essentially blocks these suits and 
could preempt hundreds more, leaving communities with a multibillion 
dollar unfunded mandate at the hands of this Congress.
  Mr. Speaker, the party of States' rights has become the party of Big 
Business. This bill is another handout to the oil, gas, and MTBE 
producers. Support the Capps motion to instruct and strike this lousy 
provision.
  Mrs. CAPPS. Mr. Speaker, I yield 3 minutes to the gentlewoman from 
California (Ms. Solis).
  Ms. SOLIS. Mr. Speaker, I would like to commend the work of the 
gentlewoman from California (Mrs. Capps) on this important issue that 
not only affects California but the entire country.
  Mr. Speaker, today I rise in strong support of the motion to instruct 
conferees on the MTBE provision in the House energy bill. I adamantly 
oppose the language in the House bill passed which would give a free 
ride to manufacturers of MTBE, leaving taxpayers across the country 
holding the bag for cleanup. This is not an issue where a deal can be 
struck.
  The industry, the only supporters of these deals, has been spreading 
false statements about the cleanup of MTBE being paid for by 
responsible parties and wants us to believe that future cleanup will be 
paid for. But who ends up paying that? The taxpayers.
  These groups are ignoring two important items. One is that the 
leaking underground storage tank program which the manufacturers 
believe will bail them out is not appropriately funded right now. They 
are not cleaning anything up as they should be and many of the State 
programs are broke. Right now EPA oversees 700,000 leaking underground 
storage sites. Of the 700,000 underground storage sites, 136,000 are 
currently leaking, and they are not being cleaned up.
  EPA anticipates that over the next 10 years, 120,000 new leaks will 
occur. Despite the need for cleanup funds and the growing inability of 
the funds needed to clean these up, we know that this administration 
cut back by 8 percent that fund.
  State programs right now like California and other places are also 
being starved of this much needed funding.
  Twelve States have funds with more claims than money. Two State funds 
have gone bankrupt. Fifteen State funds are funded only by gas taxes, 
and five States do not even have cleanup funds.
  The provision in the House energy bill and any deal that may be 
struck is going to leave our taxpayers holding the bag. No deal is 
going to help our communities bear the burden for the rest of the 
cleanup. The only way to fairly and adequately pay for the cleanup is 
to allow for those manufacturers to be found responsible and 
accountable.
  Lastly, I want to say also that the House Republican energy bill 
fails to address the Nation's record gas prices; and according to the 
Bush administration's own energy department, they would actually cause 
gas prices to increase.
  Hello? What are we doing here today by not addressing the consumers' 
needs right now where gas prices and a barrel of oil is up to $60 a 
barrel.
  We need reform. We need something that is going to help our 
consumers, and we do not want to see more of our water polluted by 
MTBE. Support the motion to instruct.
  Mr. BARTON of Texas. Mr. Speaker, how many speakers does the 
gentlewoman have?
  Mrs. CAPPS. Mr. Speaker, I do not have any further speakers, just 
closing comments of my own.
  Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, back in the middle of the Depression in the late 1920s 
or the early 1930s, the east Texas oil field was discovered, and at 
that time it was the world's largest oil field. And since it was 
discovered by a man named Joiner who was an independent, all kinds of 
folks rushed in to get a piece of that action.
  It was not discovered by the major oil companies, and so literally 
tens of thousands of people from all over the country came to east 
Texas and to Kilgore and to Longview to try to make their fortune.
  The law enforcement facilities and the personnel were just 
overwhelmed. So finally in desperation, one of the county judges called 
down to Austin to speak to the Governor of Texas. He said, Governor, we 
are being overwhelmed here. We have a riot on our hands. Can you send 
the Texas National Guard and the Texas Rangers? Could you send us some 
help so we can restore law and order? The Governor of Texas said, I 
will be happy to do that.
  So about a day later, the sheriff and the county judge and some of 
the county commissioners, they went to the train station to meet the 
help. And they were expecting hundreds, if not thousands, of troops and 
Rangers to step off the train; and one lonely Texas Ranger, a grizzled 
old guy stepped off the train. The county judge says, I called the 
Governor and I asked for help, where is it? The Ranger said, You are 
looking at it. The county judge said, We got a riot on our hands. And 
the Ranger said, How many riots? And the judge said, One. The Ranger 
said, Well, I am one Ranger. One Ranger, one riot. And he proceeded to 
quell the disturbance.
  Well, we have heard from our friends, and they are my friends, every 
one of them except for one that just spoke is a member of the Committee 
on Energy and Commerce. They are all good people. Not one of them voted 
for the energy bill. That is okay. That is what democracy is all about.
  You have heard the other side of the story, but that may not be the 
whole story. There is another side to this story on MTBE, and let us 
talk about it.
  Our distinguished minority leader, the gentlewoman from California 
(Ms. Pelosi), when she spoke, stood up and said that back when they 
began to put MTBE in the gasoline, the manufacturers knew that it would 
leak. They knew that it would leak.
  Well, let me ask you a question. If you put something in a tank 
underground and the tank is not tight, is it going to leak or not leak? 
The answer is it is going to leak if you do not have a tank that is not 
leakproof. So to say they knew MTBE would leak is to say they knew 
there were leaking underground storage tanks.
  You put gasoline in a storage tank underground, whatever is in that 
gasoline, if there is a leak in the tank, it is going to leak. That is 
a fact. So when MTBE leaks, which is a fact, it is not just the MTBE. 
It is everything else in the gasoline. It is the benzene and all the 
other additives and the gasoline itself.
  Now, to say that the solution to that is to ban MTBE is to say if I 
cut my arm and it is bleeding, instead of putting a BandAid on it and 
stopping the leak, I drain the blood out of my body. That is one way to 
stop the leak. But that may not be the most cost-effective and the most 
sensible way.
  Now, surprising as it may be, under existing law we have a leaking 
underground storage tank fund called the LUST fund. It was specifically 
set up in law to prevent tanks from leaking, to have a mechanism to pay 
to repair these underground storage tanks. Just one problem, the law 
did not say the money that goes into the fund has to be used just for 
leaking underground storage tanks.
  So what have the States done? They have used it for every purpose but 
that. We set up this fund. We funded it. We put money into the trust 
fund. We send that money to the States, and the States use it for any 
purpose. Some States actually do use it to repair and maintain leaking 
underground storage tanks, but not many.

[[Page 15787]]

  This bill that my friends who have just been speaking voted against 
has a provision in it that says the States have to use some of the 
money for the underground storage tanks. And, in fact, it doubles the 
amount and it sets up a maintenance program where the States have to go 
out and actually enforce the law in this bill that is pending. That is 
my first point.
  The gentlewoman who is offering the amendment said, and she is right, 
there are 2,600 water systems in this country that have MTBE 
contamination. She says it and I am going to say it is a fact. I have 
no reason to doubt that.
  What she does not say because the reports that she studies do not 
tell her is what the level is. Now, the EPA standard is somewhere 
between 20 and 40 parts per billion. Some States have a tighter 
standard, as low as 13 parts per billion. The problem is, with all of 
these lawsuits that have been filed, the trial lawyers have found out 
that you can detect MTBE down to one part per billion. Somebody shows 
up in your city council office and says, we have a lawsuit on MTBE 
contamination. Can we check your water supply? Of course they are going 
to say, sure, check the water supply.
  They come back and say, you got MTBE contamination, 2 parts per 
billion. Oh, my God. Let us join up. Well, unless you have got the most 
sensitive nose, you are not even going to be able to smell it, but it 
is there. It is way below the standard.
  Now, if the State wants to set a standard even lower than 13 parts 
per billion, I have got no problem with that. If the State wants to ban 
MTBE, which some States have, I have got no problem with that. But to 
sit here and say that you have all this contamination, well, I could 
take a thumbful of MTBE and take it out and throw it on the ground out 
here in the Capitol. And if it rains very quickly after that, the 
thumbful gets into the water system, the wastewater run-off here in 
Washington, D.C., and some of that goes to a reservoir and the city of 
Washington gets some of its drinking water from that reservoir, it 
might show up at one part per billion.

                              {time}  1430

  That does not mean it is contaminated in the real sense, but it does 
mean there is some MTBE in there.
  So the fact that we have all these water systems that claim 
contamination, part of that is because the trial lawyers have been 
going on and recruiting people to join the lawsuit, and they go out and 
study their water supply and they may actually be able to find a little 
MTBE in it.
  The next thing, and my friend from Maine talked about the fact that 
MTBE was not mandated under the Clean Air Act Amendments of 1991. He is 
telling you the truth. But, again, as he pointed out, we did not 
mandate MTBE but we did mandate that you had to put an oxygenate 
requirement of 2 percent by weight. At that time, there were two ways 
to do it: One was ethanol and the other was MTBE.
  Now, since that time, the oil and gas industry has come up with a 
product called reformulated gasoline that meets the minimum standard 
for combustion under the Clean Air Act Amendments, so there are now 
three ways to do it. But at the time there were two, and it was a 
mandate. So we told the industry, if you are in a nonattainment area, 
you have to put one of two things, MTBE or ethanol, in your gasoline 
during certain parts of the year so that you get better combustion in 
the engine so that you get cleaner air quality.
  That was a good thing, not a bad thing. And what did they find out? 
They found out that those communities who used the MTBE, it was much 
more cost effective. It cost less money; and two, it cleaned the air 
better, about 40 percent better than ethanol, 40 percent. But, as has 
been pointed out, if you store it in a tank that leaks, it may leak. 
And when the gasoline leaks, the MTBE as part of the gasoline leaks and 
the MTBE does get into the water table and that does cause an odor.
  Now, the last thing I want to talk about is this study that has been 
leaked. Is it not interesting we are having a debate about leaking 
underground storage tanks and a study has been leaked from the EPA? 
Heaven help us. This study that has been leaked is a draft study. It 
has not been peer reviewed. It will probably never become part of an 
actual public document that is presented to the Congress. But the folks 
at EPA understand the energy bill is about to go to conference, and 
those that agree that MTBE is not a good thing, somebody over there has 
conveniently leaked a draft report that says MTBE is now a likely 
carcinogen. Likely.
  Well, I drink a lot of Diet Dr. Pepper. And my guess is if I were to 
drink ten gallons of Diet Dr. Pepper everyday for the rest of my life, 
I might develop cancer because of that. I do not think that MTBE, under 
the standard that is in current law, is a carcinogen, and all the 
studies that I have seen that have tried to prove it have come back 
just the opposite. So to hang our hat now on a draft study that has not 
been peer reviewed and has been leaked by the EPA, to me, is pretty 
weak soup indeed.
  Let me just say that we are getting ready to go to conference with 
the other body. That is a good thing, not a bad thing on the energy 
bill. We need to find a compromise on MTBE. I think that is a good 
thing, not a bad thing. And I agree with some of the proponents of the 
Capps amendment that the manufacturers and the distributors and the 
retailers and the refiners, the people in the chain of custody for MTBE 
should help pay to clean up the water systems that are contaminated. 
Should. Should. So the compromise that we have been working on for 
several months now says that they have to do that.
  We actually are going to set up a specific fund just for MTBE 
remediation, and that fund is going to be sufficiently funded to pay 
for the actual cleanup and remediation of contaminated sites. It is not 
going to pay for trial lawyers' contingency fees. Not going to do that. 
But if you are one of these water systems that has real contamination 
and you want it cleaned up, if this compromise becomes a part of the 
bill and the bill becomes law, you are going to get your water site 
cleaned up very quickly and you are not going to have any MTBE 
contamination in it.
  If what you are really trying to do is enrich the pockets of the 
trial lawyers, when they talk about $85 billion or $30 billion or 
whatever the number is, most of that money is trial lawyer contingency 
fees. I am not in that game. I am about good government. I am about 
real cleanup. I am about a cleaner environment. And the bill that I 
hope to report back as a conference report, if I have anything to do 
with it, is going to have a compromise on MTBE that does exactly that.
  The people that have helped cause the problem are going to help pay 
for it and help to clean it up. The communities that want clean water 
are going to get it quicker and sooner under the compromise that will 
be in our bill. I would think that the majority of the House, including 
41 Democrats who voted for the energy bill when it went to the Senate, 
are going to continue to agree with me. And if that is the case, I hope 
they will vote against this Capps motion to instruct, as they already 
have done once at the end of the debate on the energy bill, and let us 
go to conference and find a real compromise to solve this problem.
  Mr. Speaker, I yield back the balance of my time.
  Mrs. CAPPS. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, I want to thank my esteemed colleague, who is in 
opposition to this amendment and, indeed, he, the chairman of the 
Committee on Energy and Commerce, is my friend and friends of all of us 
who have spoken today who are members of his committee. But I wish to 
comment on some of the remarks he made in his speech.
  First, regarding the list funds which he spoke about as being a place 
for managing this pollution. Stopping the leaks from the tanks stops 
additional MTBE contamination, Mr. Chairman, but it does nothing about 
existing contamination, and that is the contamination that has polluted 
over 2,300 water

[[Page 15788]]

districts across this country in 36 different States.
  Second, the chairman referred to the very minute amounts of MTBE that 
have polluted all of this groundwater that we have been discussing. And 
it is true that the groundwater is rendered unusable because of the 
strong smell and taste of kerosene, even in a very small amount of MTBE 
which is in the groundwater. But I would argue, respectfully, that the 
American people deserve to know that the Environmental Protection 
Agency has a report, even though it is a draft report, because it 
identifies the state of a likely carcinogen that MTBE contains. Even if 
it is nothing more than a small amount, I do not believe, as a public 
health nurse, that we want to contaminate our drinking water with even 
a small amount of a likely carcinogen.
  Third, I want to get back to the point about the liability of 
manufacturers of MTBE who knew when they created this product in the 
1970s as an additive to gasoline that it was toxic and that it would 
pollute groundwater. Here is a statement from the deposition of Curt 
Stanley, a Shell Oil remediation expert, which is part of the testimony 
for the South Lake Tahoe water district when it was presented with a 
huge lawsuit against the Shell Company.
  The question was asked: ``So is it fair to say,'' and this is taken 
from testimony, ``that by 1981, the Shell Oil Company knew that MTBE in 
its gasoline could contaminate public drinking water supplies?'' The 
answer is: ``Yes.'' Question: ``And is it also fair to say that they 
knew by that time that it created taste and odor problems in public 
drinking water supplies?'' The answer: ``Yes.'' And the final question: 
``And did you report those facts to the Shell management?'' And the 
answer is: ``Yes.''
  Since at least that time, 1981, the oil companies, the MTBE 
manufacturers knew that they were making a defective product and 
knowingly they continued to manufacture it.
  Now, the chairman described the compromise that has been worked out 
on the underlying bill, and in doing so, interestingly, acknowledges 
fault on the part of the MTBE manufacturers, because they are liable if 
they are going to be part of the deal in coming to a conclusion. ``They 
should pay,'' he says. I say, ``they must pay.'' They must be held 
accountable. And the deal that is struck is one in which they will pay 
only a portion of the damages and the taxpayers will pay the remainder.
  The House Republican energy bill fails to address this Nation's 
record gas prices. And according to the Bush administration's own 
Energy Department would actually cause gas prices to increase, and that 
at a time when they are increasing. This energy bill we are now going 
to be considering in conference will do nothing to cause containment of 
that increase in gas prices. Instead of giving real relief to 
consumers, this Republican bill gives loads of new tax breaks and 
loopholes to special interests. And the worst example of these special 
interest giveaways is the complete liability shield for MTBE 
manufacturers, a shield that will shift billions of dollars in cleanup 
costs from MTBE manufacturers to the American taxpayer.
  MTBE is responsible for polluting groundwater in so many communities 
across this country. Cleanup costs are estimated in the billions, $28 
billion to maybe as high as over $50 billion. MTBE manufacturers are 
now being held accountable in court, but this provision would end that 
accountability. I would remind Members that it was the special 
protections granted to MTBE manufacturers that brought this bill down 
in the last Congress. Senate leaders have made it clear they are not 
including this grossly unwanted get-out-of-jail-free card for the MTBE 
this year either.
  So I know many Members of the House have school boards, have water 
districts or towns with lawsuits against MTBE manufacturers, and those 
lawsuits are going to be voided. Null. They are not going to be able to 
proceed under this energy bill. Your constituents would lose their 
right to hold these manufacturers of MTBE accountable for the pollution 
in their groundwater. And the billions in MTBE cleanup that your 
communities face will be shifted from the oil companies, who have 
record profits and who caused the problem, to your constituents, who 
have to live with the problem.
  Make no mistake, that is what this vote is all about. By voting for 
the motion to instruct conferees, you will be saying that it is not 
okay to make your constituents pay for pollution that they did not 
cause, but that was caused by MTBE manufacturers. The special 
protection in this bill for MTBE manufacturers is completely 
unwarranted and it will cost your constituents a fortune.
  So I urge you to vote for the motion to instruct conferees. Vote for 
the Capps motion.
  Mrs. WILSON of New Mexico. Mr. Speaker, the Energy Policy Act of 2005 
that recently passed the House by a vote of 249-183 included a narrowly 
drafted provision giving manufacturers and distributors of MTBE limited 
liability protections for claims based upon a defective product. I 
voted in favor of this legislation knowing that in conference with the 
Senate, MTBE compromise language would be negotiated with members from 
affected states that would be based on a concept of shared 
responsibility focused on cleanup.
  MTBE has reduced smog from cars and trucks and improved air quality. 
But when MTBE gets in water, it smells and tastes bad and is hard to 
clean up, raising questions about whether we should continue to use it 
to produce cleaner burning gasoline.
  For the last couple of weeks, I have contributed to the discussions 
on an MTBE compromise to recommend to the Energy conferees. I do not 
believe that the views of states impacted by MTBE contamination have 
been adequately taken into account to this point. We are no closer 
today to an acceptable compromise than we were 2 weeks ago. 
Additionally, I am greatly concerned by a draft EPA internal risk study 
that suggests that in high concentration, MTBE is a likely human 
carcinogen. This is the first indication we have had of a public health 
impact of MTBE.
  I continue to believe that a lawsuit based system is the wrong way to 
address this problem. We should spend money on getting the spills 
cleaned up quickly rather than having a lawsuit based system where 
people fight in court for years and the lawyers get a big cut of the 
pie before any cleanup is done.
  I voted in favor of the Democrat motion to instruct conferees 
because, at this point, I think we should move toward the Senate 
language and focus on solving the problem, not litigating it.
  I would be willing to support an MTBE provision that would create a 
joint industry/government financed MTBE remediation trust fund that 
would cover state and local government remediation costs. But 
industry's contribution must be mandatory and the government's 
contribution must be guaranteed and not subject to appropriations.
  Mr. BACA. Mr. Speaker, I rise in support of the Motion to Instruct 
Conferees by Representative Capps.
  Our greatest obligation is to protect the people we represent. That 
means protecting their health and wellbeing. Therefore, it is important 
that we do not let those responsible for MBTE contamination of our 
water off the hook.
  Clean and safe drinking water is vital to our health, not a luxury.
  So I want to make sure that chemicals that cause cancer or other 
illnesses that threaten the health, even the lives, of my constituents 
are not able to contaminate the water we drink.
  That is why I have been working hard to gain funds to pay for the 
removal of perchlorate from groundwater in San Bernardino County.
  And that is why I am concerned about MBTE and its impact on the 
communities I represent.
  MBTE is a dangerous chemical that has contaminated the groundwater in 
thousands of sites across the country.
  Unfortunately, instead of holding the manufacturers of MBTE 
accountable for the harm their products have caused, some Republicans 
in Congress want to make the American people pay.
  I believe in being accountable and responsible. This Administration 
has talked about accountability, but now Republican leaders are now 
trying to pass the buck.
  The cost of cleaning up MBTE-contaminated water nationwide is 
estimated to be $29 billion.
  It is wrong to ask the county and city governments and local water 
agencies to pay. Their budgets are already under a lot of stress, and 
they would have to raise the funds from taxpayers and ratepayers.

[[Page 15789]]

  We must reject provisions that give corporate polluters a free pass. 
MBTE manufacturers must be held accountable for the harm they have 
caused and clean up their own mess.
  Mrs. CAPPS. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Boozman). Without objection, the 
previous question is ordered on the motion to instruct.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to instruct 
offered by the gentlewoman from California (Mrs. Capps).
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mrs. CAPPS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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