FBOs, Fuel Distributors, Have Sued CEH and CA Attorney General

A coalition of FBOs and fuel distributors who sell leaded aviation gasoline (avgas) in California have sued the Center for Environmental Health (CEH) and the Attorney General of the State of California in response to a notice of an intended lawsuit against coalition members for supplying and using leaded aviation gasoline, allegedly in violation of the California Safe Drinking Water & Toxic Enforcement Act (Prop 65). The National Air Transportation Association (NATA), which has engaged common counsel with the coalition to protect the interests of all NATA members, is supporting this group with facilitation and administrative services.

Thursday, the coalition asked a U.S. judge to issue an injunction to stop Prop 65 enforcement actions from proceeding. According to the complaint, the Prop 65 lawsuits will disrupt ongoing efforts by the U.S. Federal Aviation Administration (FAA) and Environmental Protection Agency (EPA), who are working with industry groups to identify an alternative to leaded fuel that can be safely and reliably used by piston-powered airplanes. Because any lawsuit under Prop 65 initiates state enforcement proceedings in California and can lead to imposition of huge civil penalties, which would cripple the small businesses who sell avgas, the complaint seeks immediate relief to protect the rights of coalition members to sell avgas under federal law and the U.S. Constitution. Aircraft have used leaded aviation gasoline, under FAA and EPA regulations, for decades.

The legal actions come on the heels of the May 9, 2011 "notices of violation" issued to a large number of California aviation fuel suppliers and airport FBOs, claiming they failed to warn residents near airports that aircraft emissions contain lead and "discharged" lead through engine emissions on take-off and landing. In the Notices CEH proposes as "remedies" a complete bar on the sale of leaded avgas, clean up of allegedly contaminated drinking water sources, and the payment of substantial civil penalties -- plus CEH's attorneys' fees.

"The CEH litigation under California Proposition 65 threatens to interfere with obvious federal interests in aviation safety and aircraft engine emissions policy," stated NATA President & CEO James K. Coyne. "It is imperative that the issues involving the safe and effective transition to an unleaded aviation gasoline be addressed in a coordinated way at the federal level, and that the FAA and EPA play their role as the agencies whose expertise will be applied through activities that are already well underway."

In addition to NATA's efforts, the group has received significant support from the General Aviation Manufactures Association (GAMA), the Experimental Aircraft Association (EAA), and the Aircraft Owners and Pilots Association (AOPA), all of whom share a common interest with the coalition in protecting the GA community from efforts to utilize state laws to block the sale of avgas in California.

NATA says that the remedies sought in the Prop 65 enforcement suit would shut down the entire piston-engine aircraft fleet in California and end all flight training at the named airports, with a detrimental impact on related economic activity. CEH has claimed that aircraft operators can freely substitute unleaded automobile gas for leaded avgas - suggesting a course of action that could put tens of thousands of aircraft operators and pilots in jeopardy if they were to use unapproved fuel.

California alone has 254 public-use airports, 219 of which are general aviation airports. These airports are home to 99,594 pilots and 37,128 general aviation aircraft that rely upon aviation gasoline. General aviation is an important economic engine that accounts for 1.7 million direct and indirect jobs in the state.

The coalition complaint points out that federal law completely preempts the use of local law such as Proposition 65 to block or limit the sale of aviation gasoline in California or elsewhere. According to the complaint, the Federal Aviation Act bars state law from being used to regulate the routes and services offered by air taxi and charter airlines, while the federal Clean Air Act bars states from applying local emission standards to aircraft or engines. The complaint explains how a state prohibition on the sale and use of aviation gasoline would undermine the FAA's authority over safety certification of aircraft and aircraft engines. Only the FAA may specify what type of fuel may and may not be used by aircraft.

Currently, no safe alternative exists to replace leaded aviation gas for the entire piston-powered aircraft fleet. Indeed, the FAA has observed, "Over 160,000 piston-engine aircraft rely on this fuel for safe operation. The lead additive in avgas protects piston engines against damaging detonation (or engine knock) at the higher power levels required by aircraft. Operation with inadequate fuel performance can result in engine failure and aircraft accidents."

Fortunately, significant federal and private resources are being expended to facilitate a transition away from the necessary use of lead in aviation gasoline. The FAA, with exclusive oversight for aviation safety, and the EPA, which oversees environmental regulation of aircraft emissions, are hard at work with the general aviation industry - including fuel producers, developers and distributors, aircraft and engine manufacturers, and consumers - on the safe transition to an unleaded aviation gasoline for piston-powered aircraft. This collaboration is being accomplished through the FAA's Unleaded Avgas Transition Aviation Rulemaking Committee, which is tasked to address a host of factors including safety certification, fuel production and distribution, and environmental and economic concerns. The industry has also filed comments in an ongoing EPA rulemaking.

Additionally, Congress has expressed a significant interest in prioritizing federal activities by the FAA and NASA qualifying unleaded aviation fuel and safe transition to this fuel for the fleet of piston engine aircraft. The House FAA Reauthorization and Reform Act of 2011 (H.R. 658) includes a provision directing the FAA to develop a plan, within 120-days of enactment, containing the specific research and development objectives for a transition to an unleaded aviation gas, including consideration of aviation safety, technical feasibility, and other relevant factors, and the anticipated timetable for achieving the objectives. The general aviation community is asking Congress to authorize $2 million annually over four years in the FAA's research and development budget for Alternative Fuels for General Aviation, as requested in the President's budget. This research program will help develop FAA performance and certification methodologies necessary for qualification and certification of alternative unleaded aviation fuels.

FMI: www.nata.aero