Aviation Official Says State Case Over Avgas Ban Would Devastate Industry

By Sean Belk - Staff Writer

January 31, 2012 - Legal action initiated in state court last year, aimed at prodding the end of leaded aviation fuel by aircraft users due to the potential health risks to residents near airports, may devastate aviation business in California, and eventually the country, according aviation business advocates.

The Center for Environmental Health (CEH), a non-profit environmental justice advocacy group, filed a preliminary lawsuit in May 2011, claiming that the suppliers and producers of 100-low-lead, or avgas, fuel used by piston-engine airplanes, primarily classified as general aviation aircraft, have violated California law for not warning the public about lead exposure.

Under California’s Safe Drinking Water and Toxic Enforcement Act, known as Proposition 65, established in 1986, residents near sources of high lead emissions must be notified of the potential for lead exposures, while lead found in drinking water above legal limits is prohibited.

Only piston-engine aircraft, including small airplanes and some helicopters, are federally permitted to use avgas, which includes lead additives. Jet-powered airplanes, such as corporate jets, currently use jet fuel, which contains no lead. Although federal efforts are underway to formulate an alternative, the CEH has brought the case forward at the state level, mainly to spur the eventual elimination of lead in avgas and to reduce air pollution throughout the nation, according to CEH officials.

The suit against five oil companies and 38 aviation fuel retail businesses, such as fixed based operators, or FBOs, aircraft charter companies and private suppliers, at 25 airports in California, threatens to assess significant civil penalties against the businesses if warnings, such as mailers, about the existence of lead exposure from aircraft aren’t provided to residents living near airports.

According to CEH, at seven airports drinking water sources are polluted with leaded avgas. Los Angeles International, Oakland International, John Wayne, San Diego and Long Beach airports are among the 12 airports in the country with the highest lead emissions.

Under Prop 65, the aviation businesses and fuel producers could be assessed fines of up to $2,500 per day for lead exposures, including past violations, which could lead to several millions of dollars worth of fines or more, if the CEH wins the case. Also, the law allows CEH to get a 25 percent share of the penalties if the lawsuit is upheld.

In a meeting with business aviation representatives and airport officials at Toyota AirFlite at Long Beach Airport, James Coyne, president of the National Air Transportation Association (NATA), said the CEH’s lawsuit is a form of “legal abuse,” since the suppliers of avgas are often required under lease agreements to provide the fuel to general aviation aircraft users.

Avgas fuel is currently the only fuel able to be used by general aviation aircraft users, and until an alternative form of fuel is found, which is currently underway at the federal level, aviation businesses have their hands tied, he said. The industry doesn’t anticipate a working alternative to avgas until about 2020, Coyne said.

The NATA, which represents some 2,000 aviation business organizations nationwide, is currently taking on the case on behalf of the defendants. The NATA took the case to federal court last year, declaring that federal law preempts Prop 65. However, a federal judge threw out the case since the defendants couldn’t prove industry damages yet.

The NATA also requested the Federal Aviation Administration (FAA) send a letter to California’s attorney general in defense of federal regulations. However, the FAA has so far declined to take any action on behalf of the NATA due to the current political climate in Washington, D.C. A settlement is currently being negotiated by the CEH, which would get a percentage of the award and paid legal fees. However, the outcome of the settlement, expected in the next six months, would largely determine legal standing for both parties if the case goes back to federal court, and the potential for any future lawsuits, Coyne said.

“We really got to get the message out to the business community . . . that aviation in California is facing a threat that exists nowhere else in America today,” he said. “We have the State of California, individually, all by itself, deciding how dangerous aviation fuels are or not and imposing the threat of very, very significant mitigation which may lead to the abandonment of fuel for piston-aircraft if worse comes to worse.”

In an industry that has already been heavily impacted by the down economy, the lawsuit most likely has already had an impact on aircraft sales and values in California since potential buyers wouldn’t want to buy an airplane if they can’t purchase the fuel, Coyne said.

Curt Castagna, president and CEO of Long Beach-based Aeroplex Aerolease Group, said aircraft users, such as pilots and airplane owners, would be greatly impacted if the litigation goes forward, even though they aren’t directly tied to the lawsuit. “From my perspective, there’s a clear disconnect between what the FBOs are challenged with, the defendant and the end users, which some may have this perception that it’s not an issue and it’s not impacting them,” he said. “I don’t think the majority of pilots in California have a clear understanding of the real threat that exists.”

Charles Margulis, spokesperson for CEH, told the Business Journal that the goal of the litigation is to push for a speedier process of finding an alternative to avgas and reducing lead pollution nationwide.

“Will this have a big impact on the industry? Well, we hope that it has such a big impact that it will reduce lead pollution while [aviation businesses] can maintain their fleets,” he said. “That’s why we brought the lawsuit: to encourage those efforts to go forward as quickly as possible so people aren’t polluted anymore.”