EWG to Rep. Bass: Where Is Your Plan For MTBE Relief?

EWG to Rep. Bass: Where Is Your Plan For MTBE Relief?

Friday, June 15, 2007

When Rep. Charles Bass (R-NH) voted in favor of lawsuit immunity for drinking water polluters—and against the interests of his own constituents and thousands of communities nationwide — he claimed he had developed a massive 'trust fund' plan to pay for clean up of MTBE contamination. EWG President Ken Cook has asked Bass for details on his strategy, proposal, and who helped him develop it.


The Honorable Charles Bass
2421 Rayburn House Office Building
Washington, DC 20515-2902

April 26, 2005

Dear Congressman Bass:

In light of your many recent public statements and your votes to give MTBE manufacturers immunity from defective product lawsuits, we respectfully submit that the time has come for you to disclose publicly details about the proposal you claim to have devised for a massive trust fund to clean up MTBE pollution nationwide. We also request that you disclose the parties with whom you have been negotiating in the development of the proposal and the amount of money taxpayers in New Hampshire and elsewhere will be required to provide in order to clean up the MTBE mess oil refiners have made in thousands of communities across the United States.

We request these details because of numerous statements attributed to you in the media, or made by you during consideration of the energy bill in committee and, most notably, on the House floor, when you urged your colleagues to defeat Rep. Lois Capps' motion to strike House Majority Leader Tom DeLay's MTBE polluter immunity provision from the energy bill.

Our inquiry concerns the entire country, but it is particularly relevant to your constituents. Rep. Capps' motion would have preserved the legal right the People of the State of New Hampshire exercised in 2003, when your Governor and Attorney General alleged in a lawsuit that MTBE companies produced and sold a defective product—a product they knew in advance would ruin drinking water in New Hampshire and elsewhere. This is precisely the cause of action that has proven successful in forcing MTBE manufacturers to pay hundreds of millions of dollars to clean up drinking water their product fouled in South Lake Tahoe, Santa Monica and other communities. By urging your colleagues to oppose the Capps motion, and voting yourself to defeat it--stating you were 'proud' to do so--you have placed yourself in direct opposition to the position taken in New Hampshire's statewide lawsuit.

Who have you involved in the development of the trust fund proposal?

Which officials in the drinking water sector from New Hampshire, other states, or leading trade associations have been involved, and when did you meet with them? Which public interest groups in the state or elsewhere in the nation have had a role and when were they consulted? Which independent scientists, engineers, economists, lawyers or other experts have provided advisory assistance, and when did they provide it? Which officials from New Hampshire—regulators, mayors, legislators—have been working with you to develop the idea, and where and when did that work take place? What about their counterparts in other states that have severe MTBE contamination problems?

Which oil refiners or MTBE companies have you met with in developing this proposal, and when did you meet with them? Which members of the New Hampshire delegation have been party to your negotiations?

You have been quoted as comparing your still-undisclosed proposal to the Superfund program, the tobacco settlement, and the 9-11 victims compensation fund. All of those programs were developed after an extensive public process. Do you consider it good policymaking to develop in secrecy what is supposedly a major new federal program on an highly controversial and costly issue affecting hundreds of New Hampshire communities and thousands nationwide? If you have been working on this for a long time, may we ask why did you not submit your ideas to the rigor of full public deliberations in Congress, with hearings, testimony, open negotiation, and an opportunity for elected representatives to debate and vote on your proposal?

Can you tell the public anything about your trust fund proposal?

Has your proposal been put in writing? Will you share it with the public? Can you release your original proposal—or describe it if it was not written down—and explain how it may have changed during 'negotiations'?

How much money will be in the trust fund? What are the sources? How much will the public pay? How much of the public cost, if any, will be borne by local taxpayers whose water is contaminated by MTBE; by New Hampshire taxpayers; or by taxpayers nationwide? When will the fund be operational? Will the fund depend on congressional authority and annual appropriations? Given the track record of insolvency for the federal Superfund, and perennial under-funding of the Leaking Underground Storage Tank Fund, how can you assure the thousands of communities and individuals with MTBE contamination problems that public funding will be adequate?

Can you explain why MTBE manufacturers are not paying the full cost of the fund? Can you tell us which MTBE companies have agreed to contribute and how much? What guarantee does the public have that those contributions will be made?

You have repeatedly indicated that one of your objections to ongoing MTBE litigation is the involvement of trial lawyers. Do those objections apply to the case brought by your own Governor and Attorney General? Are you aware that in 1990, House Majority Leader Tom DeLay, the primary advocate of legal immunity for MTBE manufacturers facing defective product lawsuits, hired trial lawyers to pursue a $15 million defective product lawsuit on behalf of his family?

Can you describe your strategy?

If your proposal will provide the swift, full and efficient relief you have publicly vowed to bring to your constituents in New Hampshire and to the millions of people around the country whose drinking water is contaminated by MTBE, why didn't you make the proposal public ahead of time so that everyone would understand and appreciate the concessions you received in return for voting and speaking against the Capps amendment in the energy committee and her motion to strike on the House floor?

To put it another way, why did you work to kill Rep. Capps' motion to strike the MTBE polluter immunity provision before you had an ironclad, detailed and public agreement on your trust fund from Rep. Barton? By leading the effort to give MTBE polluters immunity, didn't you give away the only real leverage you had to win passage of your trust fund?

You have said that you will vote against final passage of the energy bill's conference report if an acceptable version of your still-undisclosed MTBE clean-up fund is not in it. But what will your 'no' vote accomplish at that late stage, given the likelihood that the conference measure will pass the full House?

What leverage, and what opportunities will you have thereafter to make your trust fund law if the energy bill is enacted without it — and with Rep. DeLay's MTBE polluter immunity provision?

What is your plan for getting MTBE polluters to pay for clean-up costs in the future if in the final energy bill they have been given immunity from lawsuits like those in New Hampshire?

We look forward to your responses. To say the very least, they are long overdue.


Kenneth A. Cook
Environmental Working Group