Submission

Summary of the matter addressed in the submission:

The Submitter believes that “applicable regulatory agencies in California are not enforcing environmental laws, as defined in the NAAEC, relating to underground storage tanks (USTs) with the result that significant volumes of gasoline continue to leak into and contaminate soil, water and air in that State.” The Submitter alleges that based on its knowledge of the current political and regulatory environment in California relating to gasoline and methyl tertiary butyl ether (MTBE) specifically, private remedies appear to be impractical. It asserts that it is aware of the particulars of the submission filed by Methanex Corporation on 18 October 1999 (SEM-99-001), that it has done its own extensive research and investigations and, based on its knowledge of the facts, it submits that the documentary evidence that Methanex has provided to the Secretariat accurately reflects the current situation. The Submitter emphasizes that the State of California has repeatedly acknowledged that its own environmental laws are not being properly enforced with regard to the permitting, monitoring, testing, repair and removal of defective USTs; and that although there are harmful components and additives in gasoline, MTBE is not harmful itself. It believes that the removal of MTBE from gasoline will not, in itself cause one less gallon of gasoline to escape into the environment, it will simply make detection of the contaminants in groundwater and the environment more difficult.

Summary of the response provided by the Party:

In its response to the consolidated Methanex-SEM-99-001 and Neste-SEM-00-002 Submissions, the United States asserts that it believes the Articles 14 and 15 process is a critical component of the cooperative efforts for environmental protection among the Parties to the NAAEC.

The Party asserts that although the U.S. Government is a firm supporter of the submission process, the Secretariat should not request authorization for development of a factual record, because the matter raised in the Submission is the subject of a pending judicial or administrative proceeding. Methanex is already challenging California’s enforcement of its Underground Storage Tanks regulations as part of its arbitration claim against the United States under NAFTA Chapter 11. The Party claims that, in accordance with Article 14.3(a) of the NAAEC, the Secretariat should proceed no further with the consideration of the submission. The Party also asserts that California is vigorously and effectively enforcing its law pertaining to underground storage tanks and water resources and that Methanex’s undifferentiated claim that the State of California is failing to effectively enforce its environmental laws relating to underground storage tanks is belied by the vigorous enforcement program now being carried out by the State.

Names and citations of the environmental laws in question:

Safe Drinking Water Act (U.S.), U.S. Clean Water Act (U.S.), California Water Code (California) and Underground Storage Tank Regulations (California).

Submitter(s):

Neste Canada Inc.