Last year Congress failed to agree on an energy bill partly because of a proposal to protect makers of MTBE from liability for water contamination caused by the gasoline additive. The House recently passed its version of the massive bill, which again contains the MTBE waiver. For this reason – and the bill’s emphasis on energy production rather than conservation – the energy legislation should again be returned to the drawing board.

Maine was one of the first states to document groundwater contamination with MTBE as a result of leaking underground fuel tanks. Between 1992 and 1996, the Department of Environmental Protection documented 345 private wells contaminated with MTBE. Contamination was found even when small amounts of gasoline were spilled, such as from an overfilled tank and a traffic accident.

Further testing by the DEP, Bureau of Health and Maine Geological Survey found MTBE in 16 percent of the 951 private wells tested and 16 percent of the public water supplies tested. The additive was more likely to be found in the areas where reformulated gasoline was required.

To reduce air pollution, Congress required the use of reformulated gas in areas of the country, including southern Maine, that did not meet Clean Air Act standards. The gas was required to have a higher oxygen content to reduce smog-forming compounds and cut emissions of lead and benzene. Refineries picked MTBE, a byproduct of oil refining, as the oxygenate of choice. Federal courts have ruled that Congress did not mandate the use of MTBE over other oxygenates, such as ethanol.

Methyl-tertiary butyl ether moves quickly through the water and does not adhere to soil so it can quickly contaminate a water supply. Nationally, MTBE cleanup is estimated to cost between $12 billion and $63 billion. The Congressional Budget Office last week categorized the MTBE waiver provision as an unfunded mandate on state and local governments, which would be left paying for cleanup.

While House leaders initially blocked a vote on an amendment co-sponsored by Rep. Tom Allen to strip the waiver language from the bill. Because of the unfunded mandate determination, the House parliamentarian ruled that a recorded vote on the amendment was required. It failed by a 219-213 vote and the waiver language stayed in the House energy bill.

In addition to banning lawsuits after Sept. 5, 2003 – odd how Congress wants to insert itself in ongoing litigation – the House bill also stretches a ban on MTBE on gas to 2014. Maine received permission from the Environmental Protection Agency in 1999 to switch to gasoline with minimal MTBE and a lower sulfur content to meet the Clean Air Act requirements.

The Senate will soon begin work on its version of the energy bill. Maine Sens. Olympia Snowe and Susan Collins have opposed the MTBE waiver in the past. They should ensure it is not in this year’s version of the bill either.