Statement of the Honorable Brian Bilbray
Before the Senate Committee on Environment and Public Works Hearing on S. 1576, and the use of MTBE in California's Cleaner-Burning Gasoline
September 16, 1998

Mr. Chairman, I want to first thank you for making the time on your Committee's calendar to schedule this hearing, on an issue which is of such great significance to my home state of California. I am very pleased to be here today to continue my close work with my fellow Californian, Senator Feinstein, on the legislation we have respectively introduced in the House (H.R. 630) and here in the Senate (S. 1576). I also appreciate the interest of our California colleague, Senator Boxer, a member of this Committee, and look forward to the discussions which will ensue and the testimony of the witnesses you have assembled on the other panels.

The fundamental facts about S. 1576/H.R. 630 are simple -- it would allow the State's more stringent RFG program to operate in lieu of the overlapping, less stringent federal RFG program, so long as the State program continues to demonstrate that it is achieving equal or better reductions in overall emissions of air tonics and VOCs.

EPA has recognized that the California program Is more stringent, and has stated as much in several Federal Register notices. Further, S. 1576/H.R. 630 is content-neutral and performance-based. I strongly believe that we need to focus more on outcome and less on process in setting environmental policy and protecting the public health. As a former member of the California Air Resources Board, I am very proud of California's role on the cutting edge of such strategies. We will have further elaboration on this from Mr. Dunlap in the second panel.

This legislation has been carefully constructed to build exclusively on California's unique, preexisting ability under the Clean Air Act to operate its own reformulated gasoline program. This is so for good reason; California has historically had unique air pollution challenges which require innovative and creative solutions. Congress, recognizing this, singled it out for special status in Section 211(c)(4)(b) of the Clean Air Act, which states "Any state for which application of section 209(a) has at any time been waived under section 209(b) may at any time prescribe and enforce, for the purpose of motor vehicle mission control, a control or prohibition respecting any fuel or fuel additive. " Under Section 209(b)(1) a waiver is provided to "any State which has adopted standards...for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966... " California is the only state which meets this requirement; as a result, this legislation applies exclusively to California, and without further amendment (and the science to support or justify such amendment) cannot be utilized by any other state.

Mr. Chairman, I also want to make clear to this Committee that I am highly sensitive to concerns which have been expressed previously that this bill might somehow be a "first step" in efforts to "undermine" the national oxygenate requirement. Let me again clarify that this is neither the intent nor the effect of S. 1576 -- it is applicable only to California. Questions about the national program itself may arise and may be legitimate, but they are a horse of an entirely different color, and one which may well be saddled up at some point in the future, perhaps by future Congresses during reauthorization of the Clean Air Act. However, that is a discussion for another time, and is not what we are about here today with Senator Feinstein's and my bill. Again, it is narrowly written to be California-specific and to meet California's unique circumstances; it cannot be "piggy-backed" upon by other states, without the appropriate congressional action. If other states should have similar intentions, that is certainly their prerogative -- but that is a matter for individual states to decide, and to pursue on their own. California's exclusive status under the Act as written, and this bill which builds upon it, do not provide other states that opportunity.

Expanding further on this, Mr. Chairman, S. 1576 is content-neutral. It is written to provide California added flexibility to continue to meet and improve upon its already stringent emissions standards. In doing this, it does not mandate the use, nor does it ban the use, of any fuels additive which might be used to manufacture cleaner-burning gasoline in California. I would also point out that this legislation, which I first introduced in the 104th Congress as H.R. 3518, largely predates the current discussion in California over MTBE use in reformulated gasoline.

As Senator Feinstein recognized with her introduction, the beauty of this bill is that it is content~ neutral and outcome-based. By not mandating the use of particular "recipes" in California's cleaner-burning gasoline, S. 1576 provides the ability for the state to improve on its clean air successes, while being able to respond to previously unforeseen concerns that science may show to impact our environment and public health.

Science must be what guides us in these endeavors, and sound science is the foundation on which the California Air Resources Board has built its stringent reformulated gasoline program. My approach to this is simple -- allow the State to "set the bar high" from an emissions reduction standpoint (as it has done), and allow it to have the added flexibility or options by which to reach that bar without mandates, one way or the other. Regardless of one's perspective on MTBE or any other additive, science is what must dictate this approach, not government mandates.

At the hearing on H.R. 630 which was held in the Commerce Committee this past Earth Day, there was testimony which suggested that this legislation would somehow result in "dirtier air" in California, or the "weakening" of our state's stringent standards. The implication that Senator Feinstein, myself, and the bipartisan legion of our California colleagues that support the bill would do anything to willingly undermine California's air quality is outrageous in and of itself, and in my mind simply indicates an unwillingness to discuss the bill in a factual manner.

California has the toughest air standards in the world, and is constantly seeking to improve them. Additionally, the California program is enforceable federally under its State Implementation Plan (SIP). It is therefore difficult to envision a scenario under this bill in which California would do anything but continue to build on the successes it has achieved to date in reducing air pollution. Both our responsibility to the public and simple reality indicate that clean air strategies in California will not be allowed to move backwards; rather we are working together to pioneer new gains in protecting the public health. I am certain that Mr. Dunlap will confirm California's resolve in this regard.

A last word on the public health merits of this bill, Mr. Chairman. At the Earth Day hearing on H.R. 630, I asked that several levers of support for the Bilbray/Feinstein legislation be included in the record. I do not wish to be redundant, but I do believe it is important for the Senators on this Committee to be aware of this significant measure of support -- from the California Air Pollution Control Officers Association, the South Coast Air Quality Management District, the San Diego County Air Pollution Control District, the Sacramento Metropolitan Air Quality Management District, the Santa Barbara County Air Pollution Control District, and the San Joaquin Valley Unified Air Pollution Control District, among others. Such an accounting from the ranks of California's clean air professionals further underscores the public health-oriented foundation of this legislation, and I would submit these letters to the record for the Committee's consideration.

Finally, Mr. Chairman, I know that there have been concerns expressed by several Members, Senators, and other stakeholders, to which I know you are also sensitive, not about the practical effects of S. 1576 but about the potential for "opening up" the Clean Air Act. I am frankly pleased at the unanimity which is found here, and am reassured to see so many colleagues and other interested parties on the same proverbial page with Senator Feinstein and I on this. We have concerns about "opening up the Act" also. That is why the bill is drafted as narrowly as it is, and is structured to build upon California's existing unique status under the Clean Air Act. This bill is quite simply a narrow, targeted "fix" to strengthen a California-specific section of the Act.

This Committee, and the House Commerce Committee, has on several occasions in recent years demonstrated its ability to shepherd though the legislative process bipartisan "rifle-shot" amendments to the Act, without "opening it up". I believe that such a scenario could be repeated in this instance, Mr. Chairman, and would have the utmost confidence in your ability to do so. I have similar confidence in Chairman Bilirakis and Chairman Bliley, both of whom have publicly stated their willingness to maintain the integrity of this legislation. I recognize that time is short in this session, and understand the concerns expressed by other stakeholders about the Act. However, given the assurances which have been delivered, I feel that we ought to be able to move forward in discussions of the bill without being distracted by concerns about "opening" the Act.

To conclude, Mr. Chairman, since the 104th Congress, I have tried to be as plain as I can about my intent with this bill, and believe that while differences in perspective may remain, there are no surprises here. It is my hope that the Committee's time today will not be excessively occupied with extensive and redundant discussion of hypotheticals and conjecture. I would respectively submit that among the parties which have been and are in involved and interested in this issue, the practical effect of this bill is clear, and has been vigorously and thoroughly contemplated now for the better part of two Congresses.

What we can and should talk about and focus on today is the hard science and the facts which underlie the bill. In essence, California has different clean air needs than the rest of the nation. The Clean Air Act already reflects this. Going a step further, California has built the proverbial "better mousetrap", one which, with all due respect, may not have been envisioned during completion of the Clean Air Act amendments of 1990. S. 1576/H.R. 630 will build on those accomplishments to maximize the State's ability within the Act to address and improve upon its clean air strategies. This can occur without opening up the Act, or creating unmerited loopholes for other states without the requisite Congressional review. These are the facts that I hope will be discussed here today, and I look forward to the testimony of the witnesses.

On MTBE specifically, Mr. Chairman, I strongly suggest that we continue to be guided by science. We know there have been significant benefits in reducing smog-forming compounds throughout California as a direct result of cleaner-burning gasoline. I have a series of newspaper articles which reflect this, and which I would ask to be included in the record. On groundwater contamination, we know that there are problems with plumes resulting from tank leaks and spills, and are moving to address these. We are closer to having a much better understanding of the impacts of MTBE, from the University of California study and the California Energy Commission study. I will defer to Mr. Dunlap for an update on the status of those and other research efforts.

We must adhere to science even in the face of the difficult situations we face in parts of California which have experienced problems with groundwater contamination from MTBE. Quite clearly, Mr. Chairman, there are Q components of gasoline which belong in our drinking water, MTBE among them, and we must pursue every effort to correct and mitigate for the leakage and contamination problems which have been documented throughout our state. However, as the EPA has pointed out, it is important to compare the risks of any gasoline additive to the components of gasoline which it replaces. We must keep in mind that while MTBE certainly warrants additional careful research, its use in California's cleaner-burning gasoline has reduced considerably the presence of benzene, which is a known and dangerous human carcinogen.

I strongly believe that the flexibility provided under Senator Feinstein's and my legislation provide the tools California needs to best manage and respond to this situation. Again, the beauty of the bill is in the outcome-based process of providing the flexibility needed to continue to produce CBG by moving away from mandates, flexibility is provided also for responding to other public health concerns. As science provides us with the best strategies for responding to these concerns, we can and must continue to act swiftly to address them.

As the Secretary of the California EPA, Peter Rooney, testified to this Committee on this issue previously (12/9/97) "The problem we are discussing here today is yet another example of what can happen when the federal government tells states not just what to do, but how to do it. Do not mandate technology. Set standards, hold us to them, but allow us to determine how best to meet them -- in this case, through California's far stricter reformulated gasoline requirements that build in flexibility for producers."

In conclusion, I would like to again thank Senator Feinstein for her leadership on this important matter, and appreciate your consideration and that of this Committee. Thank you, Mr. Chairman.