Lead emissions may lead to costly California lawsuits

 - May 30, 2011, 11:25 AM

The Center for Environmental Health (CEH) sent a notice of violation to oil companies and fuel supplier Avfuel, as well as to more than two dozen companies at 25 California airports, notifying them that they have been violating the California Safe Drinking Water and Toxic Enforcement Act (Proposition 65). The warning serves 60-day notice that the CEH plans to file a lawsuit against each company unless it warns people near airports about the lead in avgas, stops using leaded avgas and pays a civil penalty for violating the California health and safety code. The CEH is a non-profit organization that earns revenue by filing actions against purported Proposition 65 violators. When civil penalties are assessed in these actions, an organization such as the CEH earns 25 percent of the penalty as well as attorney fees and money from consent agreements reached with the accused parties. One of the CEH’s efforts resulted in tire companies switching to non-lead-based balance weights for automobile tires.

“It’s not too far from extortion,” said Jim Coyne, president of the National Air Transportation Association (NATA), which is mounting a campaign to fight the CEH notice and potential lawsuits. “There are hundreds of law firms that exist to try to reach settlements out of court with businesses of all stripes,” he said. “It’s one of the great shortcomings of our American system.” As far as the potential harm from lead in avgas, he added, “There’s little evidence that anyone’s been able to produce, [showing] that the quantities of lead emissions by general aviation aircraft ever injured anybody.”

Coyne, a former congressman, pointed out that the purpose of the Proposition 65 violation clause is to allow someone who is aware of something being done contrary to the law to notify the government about that violation. “It’s intended to uncover actions that have been undisclosed or that the government is unaware of. There’s nobody in the government of California who is not fully aware of the fact that general aviation airplanes fly across their state and that small concentrations of lead in avgas have been subject to a host of analysis and research. The whole intent of the law is being turned upside down by this group. We’ve never been an industry hidden from the government. We’re upset that this process has been abused and it’s going to cost our industry to defend this. But we’re prepared to take those steps.”

Avgas Data Questioned

The CEH is basing its action on a 2008 report prepared for the Environmental Protection Agency (EPA) by the South Coast Air Quality Management District (AQMD), which measured emission levels during two phases in 2005 and 2006 at Santa Monica and Van Nuys airports. “There is data showing elevated lead concentrations in the air around both those airports,” said CEH research director Caroline Cox.

The AQMD report found that total suspended particulate lead concentrations at the two airports were “mostly below the new national ambient air quality standard (NAAQS) of 150 ng/m3,” although they were two to nine times higher than the corresponding levels in the South Coast Basin during the testing periods. The AQMD did find concentrations close to or above the national standard at Santa Monica “near the tarmac on more than one occasion and during both phases of the study.” The sensors that detected the elevated lead concentrations were on the airport itself, not in the neighborhood surrounding the airport.

In October 2008, the EPA tightened the NAAQS lead standard to the current 150 ng/m3 from the previous standard of 1,500 ng/m3. “In this respect,” the AQMD reported, “none of the concentrations measured at the Van Nuys Airport between November 2005 and September 2006 were close to or above the current NAAQS.”

While Cox acknowledged that she knows of no evidence of harm caused by tetraethyl lead used in avgas, she said, “Our goal is to remove this one particular chemical from the fuel used to power that fleet. We feel like there’s good data from the studies that shows it’s a health hazard that needs to be addressed.” One study that she cited claimed that 300,000 cases of attention deficit hyperactivity disorder in the U.S. were the result of excess lead exposure.

“What the 60-day notice says is we think that people in California are being exposed to this toxic chemical,” she told AIN, “and we don’t know of any data that says the exposure is insignificant or below lawful levels. If a company wants to present data, that’s part of the process.” She conceded, however, “There isn’t a way that we could ground the fleet even if we wanted to. It’s not an option.”

Cox is aware that it’s not a simple matter to replace leaded avgas. “We’re at the very beginning of this process,” she said. “There haven’t been discussions with the companies to see what’s feasible or not.” She pointed out that a violation of Proposition 65 doesn’t have to lead to a lawsuit. “If we have good discussions with the companies, it might be a while before we file a complaint, depending on how things are moving along.”

The General Aviation Avgas Coalition, which includes most aviation associations, said that it is “exploring all options” to support the accused violators. “Because the National Airspace System belongs to the people of the United States and benefits the entire country, Congress has reserved to the federal government, through the FAA, the right and responsibility to regulate all aviation activities in the U.S. The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.”

“Any environmental concerns arising from the sale and use of aviation gasoline belong under the purview of the EPA and FAA,” NATA stated. “Currently, both of these agencies, along with numerous industry stakeholders, are engaged in a collaborative process to address the issues arising from the use of leaded aviation gasoline.”

Coyne added, “The people behind this legal action have an agenda and they’re going to pursue it. We’re going to respond as quickly as we can to show that this is an improper exercise of abuse of the legal system. Preserving general aviation is as honorable a goal as any, and we’re going to do our best to keep our airplanes flying until there are alternatives.” NATA is seeking a variety of operators to join the battle, including public agencies such as police and fire departments and agricultural operators that rely on piston-powered aircraft.

“I’m committed to working as hard as I can to respond with the cooperation of aviation groups and NATA members and non-members,” said Coyne. “We’re fired up.” o