December 6, 2011
By Dan Namowitz
California aviation businesses, sued at the state level and facing possible stiff fines for selling or distributing leaded avgas, want the U.S. Department of Transportation to intervene in the case and assert federal jurisdiction over regulation of the fuel.
National Air Transportation Association President James Coyne has asked DOT General Counsel Robert S. Rivkin and the FAA to enter the case brought by the Center for Environmental Health (CEH) under California’s Proposition 65. The lawsuit seeks to hold aviation businesses such as fixed-base operators, responsible for lead emissions by aircraft, exposing them to severe financial penalties.
“Without DOT and FAA intervention in this case, the future of aviation gasoline will be charted by the ability of these few small businesses to fight against a scheme that tilts the table in favor of the plaintiff's narrow agenda and against orderly and thorough agency rulemaking that considers all the relevant public policy goals at stake.,” he wrote in a letter to Rivkin, according to a NATA news release.
Meanwhile, NATA “is continuing to work facilitating and assisting the FBOs in mounting their legal defense to CEH's attack,” the statement said.
The request for federal intervention comes several weeks after a federal judge declined to grant an injunction against the CEH lawsuit on technical grounds without addressing the aviation businesses' argument that federal law preempts state regulations on avgas.
The legal maneuvering has been in progress since May, when the CEH threatened to sue the businesses for the distribution of leaded fuel under the California Safe Drinking Water and Toxic Enforcement Act, known as Proposition 65. The businesses, led by NATA, have countered that the FAA's responsibility to regulate aviation and flight safety preempts state regulations.
Dan Namowitz is an aviation writer and flight instructor. He has been a pilot since 1985 and an instructor since 1990.
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