You asked if (1) Connecticut can require the use of a specific fuel additive, and (2) state law prohibits a corporation or elected official from knowingly endangering the environment or public health. You also asked for a list of U.S. Environmental Protection Agency (EPA) certified fuel additives.

SUMMARY

Whether the state can require that gasoline contain a specific fuel additive depends on a number of factors, including the type of additive, and whether (1) it performs as claimed, (2) it meets federal Clean Air Act and “boutique fuel” requirements, and (3) its benefits outweigh possible adverse effects.

Numerous state laws prohibit individuals and corporations from knowingly polluting the state's air, water, and soil. We list some of these.

Lists of EPA certified additives for gasoline and diesel fuel can be found at: http://www.epa.gov/OMS/additive.htm.

FUEL ADDITIVES

Under the federal Clean Air Act (CAA) the EPA sets limits on certain air pollutants. Each state must prepare a State Implementation Plan (SIP), which identifies how the state will attain or maintain the National Ambient Air Quality Standards (NAAQS) for these pollutants.

The CAA also requires that areas of the country that exceed federal standards for ground level ozone, including Connecticut, use reformulated gasoline (RFG) to reduce motor vehicle emissions and improve air quality. Under the CAA, states with special air quality needs may adopt unique fuel requirements and sell specially formulated gasoline ("boutique fuels").

States must include these boutique fuels in their SIPs, and EPA may approve such a SIP if it finds state fuel control is necessary to achieve the NAAQS. EPA must find that no other measures would bring about timely achievement of the NAAQS, or that such other measures would be unreasonable or impractical.

The federal Energy Policy Act of 2005 set a fixed limit on the number of boutique fuels EPA can approve. In 2006, EPA published a list of seven different types of fuels used in 15 areas in 12 states. According to a December 2006 report to Congress (available on-line at http://www.epa.gov/oms/boutique/420r06901.pdf), EPA "is permitted to approve state requests for fuel standards…only for fuels already on this list or by replacing fuels on the list. Therefore, states seeking approval of new fuel programs generally would be limited to fuel types already in existence within the PADD (Petroleum Administration for Defense District) in which the state is located." This restriction applies in addition to the requirements a state must meet to get EPA approval of a boutique fuel. The Energy Policy Act exempts fuel additives from the boutique fuel list limit and PADD restrictions, but they still must meet the necessity determination that there is no other non-fuel measure that is reasonable or practicable.

In addition, a fuel additive must obtain EPA verification that it works as claimed; that it is needed to achieve the state SIP; and that its benefits outweigh any adverse impacts, such as it might have on the environment, or on fuel supply, distribution, costs, or pricing. We have attached OLR Report 2002-R-0808, which goes into more detail on the EPA additive testing process.

LAWS PROHIBITING ENVIRONMENTAL POLLUTION

The law gives the DEP commissioner all powers necessary to (1) prevent and abate all water, land, and air pollution, including that related to particulates, gases, dust, vapors, noise, radiation, odors, nutrients and cooled or heated liquids, gases, and solids; (2) regulate the disposal of solid and liquid waste; (3) regulate the storage, handling, and transportation of solids, liquids, and gases that may cause or contribute to pollution (CGS § 22a-5). CGS § 22a-6a lists a number of laws the knowing violation of which makes the violator liable to the state for the reasonable costs and expenses of detecting, investigating, controlling, and abating the violation.

In addition, there are a number of specific laws barring anyone from knowingly polluting the state's natural resources, including its air, soil, and water. For example, the law imposes specific penalties for knowing violations of laws concerning air pollution (CGS § 22a-175); solid waste (CGS §§ 22a-226 and 226a); and water pollution (CGS § 22a-438). The law also imposes penalties for knowing violations of laws concerning tidal wetlands (CGS § 22a-35); inland wetlands and watercourses (CGS § 22a -44); pesticides (CGS § 22a-63); hazardous waste (CGS § 22a-131a); aquifer protection (CGS § 22a-354s); and mercury regulation (CGS § 22a-628).

PF:ts