Provided by the National Association of Convenience Stores

Another step closer ... Can they finally do it?

The U.S. Congress has taken another step toward enacting comprehensive national energy policy. And with the backdrop of consistently high energy prices — including, of course, gasoline — the pressure to finish the job it started several years ago is growing. But there remains a significant hurdle — the U.S. Senate.

In April, the House of Representatives passed its legislation, which closely mirrored the conference report that failed to pass the Senate by two votes last Congress. For the convenience-store and petroleum-marketing industry, this year’s energy bill — in it’s current form as of late April — is something to celebrate. Among the provisions important to the industry are:

Repeal the Clean Air Act’s oxygenate mandate:This will give refiners greater flexibility to more efficiently produce Reformulated Gasoline for the nation’s most polluted markets.

Protect retailers from product liability suits associated with MTBE: By declaring that MTBE and gasoline containing MTBE are not defective products, the legislation restores the traditional liability structure of negligence and polluter pays. Without this provision, retailers could be held liable not because they were responsible for a petroleum release, but simply because they sold gasoline containing MTBE.

Authorize retailers to temporarily blend different RFGs in their storage tanks: This provision will give retailers greater flexibility to respond to disruptions in RFG supply without having to completely drain their storage tanks.

Stop the proliferation of boutique fuels: With new ozone standards coming into effect, additional market-specific fuel formulations may be adopted, further complicating the distribution system. This bill would prevent that from happening and begin the process of rationalizing fuel regulations to enhance supply stability.
Reform the underground storage tanks program: By improving the enforcement of existing regulations, this bill will help level the playing field among all tank owners and hold recalcitrant operators responsible for their actions.

Extend Daylight Saving Time by two months: This is an ancient issue for the industry, relatively speaking, given that NACS lead the coalition 20 years ago that extended Daylight Saving Time by six weeks. This bill would add one additional month to both the beginning and the end of Daylight Saving Time, reducing the industry’s demand for electricity while extending the shopping day to generate more customers visits.

These are great provisions for this industry, but they are not law yet. They must first survive the Senate and then another conference between the two congressional bodies. The Senate was expected to begin consideration of its legislation in May and begin conference negotiations in early summer, with a goal of presenting the President with a bill to sign in August. But there is a significant challenge to achieve this goal.

Senate Energy and Natural Resources Committee Chairman Pete Domenici, R-N.M., has said that the MTBE safe harbor provision — considered by many to be the straw that broke the Senate’s back in the last Congress’ energy bill deliberations — would not be included in the Senate’s legislation. House Energy and Commerce Committee Chairman Joe Barton, R-Texas, however, has said that any bill that goes to the President must include the MTBE provision and he is working on a way to make that happen. For the c-store and petroleum-marketing industry, it is essential that Barton is successful in his efforts; otherwise, the legislation will likely fail ... again.
What can you do to help?

The Senate must come to understand that the MTBE liability provision (featured in this column last month) is a critical issue for gasoline retailers. Several companies across the nation have already been named defendants in large scale, class action lawsuits, whether or not they have experienced a release. This type of broad net litigation strategy that catches the c-store owner like a dolphin in a tuna net must be brought to an end.

Opponents have characterized the provision as a “get-out-of-jail-free” card for MTBE manufacturers and refiners. Some senators, like Chuck Schumer, D-N.Y., have already begun preparing to filibuster the energy bill in anticipation that the House-Senate conference will approve the liability provisions. Therefore, it is essential that retailers use the next few months to tell their senators how this provision will protect the small business owner and encourage them to support an energy bill that saves the dolphins from the tuna net.

The energy bill fell two votes shy of enactment last Congress. Talking with your senator can help ensure that those two votes are cast in favor of your business. If you would like more information on this issue, please contact NACS Director of Motor Fuels John Eichberger at jeichberger@nacsonline.com or (703) 518-4247.