Originally published at: Judge Denies G100UL Motion - AVweb
Court rules it’s “premature” to force the sale of unleaded avgas in California
Maybe the CEH folks can promote MIT’s solution which, apparently, will spew caustic soda over the countryside. Sounds like maybe an improvement over lead…
The judge made the right call on this. Eventually a suitable fuel will emerge. The engine manufacturers and regulatory bodies can fix this. We have 40 years of automotive innovation and history to sort this out. A few entrenched interests perhaps?
Yes, the judge is correct to mandate continued access to 100LL, but I fear some text in the ruling will reinforce the mainstream industry cabal’s fight against G100UL. Are the reports of o-ring problems significant? GAMI says the o-rings expand but don’t lose effectiveness. Are the reports of paint damage material or can Windex Wipes solve that problem? Are industry threats to transportation companies anticompetitive? I have the G100UL STC and would love to use it more often but I need answers to these and other questions. AOPA flew a light twin for a year with G100UL in one engine and 100LL in the other and reported good results. So what’s going to happen with G100UL?
A reasonable ruling. At the heart of this conflict is economics. GAMI wants to preserve their income and patents. Competitors want them divulge their engineering details and run G100UL through the ASTM process so they can shoot it down. This gives competitors more time to run their own fuels through the lengthy ASTM process. Meanwhile, the public just wants to get rid of lead, which is a worthy goal. GAMI could help the adoption of G100UL along by reducing the price of their STC. It cost me $600 for my single engine Maule. Not all owners are going to jump at that cost, especially since some doubts have been raised about safety by engine manufacturers. If the industry and engine manufacturers are going to rely on ASTM testing to determine whether or not a fuel is safe, then G100UL needs to go through the ASTM testing process. If I was GAMI, I would release the engineering details to ASTM and let them test G100UL relying on my patent to keep competitors from duplicating it while continuing to sell G100UL via the STC process. It’s going to be quite a while before ASTM testing results will be available.
If safe fuel is not available the logical move for those negatively impacted is to close the airports. Perhaps a prohibitive tax on leaded fuels to mitigate the damage would be a more moderate solution. The clean up of lead contaminated materials is very expensive. It sometimes pays to try to look at the issue from another perspective. What a different world from my days flying a J3 sans electrical.
ASTM doesn’t test anything. They just host meetings where folks who have tested come and talk, and second-guess each other.
Yes, GAMI had intellectual property stolen from them when they first tried the ASTM process… and of course ASTM can’t approve a fuel either, that’s the domain of the FAA. Understandably, GAMI decided the cost/benefit of enduring the ASTM meeting process was unfavorable.
ASTM does make standards, which provides all the dozens of members of the fuel supply chain comfort that things like distribution, mixing, labeling, and vending are handled in a safe, reasonable, and most importantly, legally protected way. (Meaning, when someone inevitably gets sued for mixing G100UL and 100LL and a plane crashes, they can say, “We were following the industry approved standard, how could we do anything else?”)
GAMI had intellectually property stolen just doesn’t make sense. If it’s patented, it’s public anyway–that’s a requirement of the patent process. If it’s a trade secret, then tough luck–you don’t get to hide your production and test data and just claim “Don’t worry! George says it’s safe, but we won’t prove it to you”.
GAMI has decided on secrecy and claiming the standards don’t apply to them because they’re smarter. That’s fine, but shouldn’t expect the world to take on the resultant legal risk unless GAMI is also willing to indemnify every member of the supply chain with an awfully large bond.
A lot of those are EI standards, but whether EI or ASTM, they apply equally to G100UL, and are being observed in the G100UL supply chain, Vitol tells us. Those supply chain comfort specs are not part of the fuel spec for either 100LL or G100UL.
We tried to find a single case where adherence to an ASTM spec was an effective defense is a product liability suit. We could not find one. Can you cite the cases you have in mind where that defense worked?
GAMI’s spec, and the FAA approval cover mixtures of G100UL and 100LL from 1% to 99%… and such 100LL mixed fuels meet GAMI’s spec and the FAA approval. That’s not true for the ether fuels from Swift and Lyondell… maybe that’s what you’re thinking of?
Actually, that’s the very definition of what a trade secret is. But GAMI has offered to share that information with any responsible party… and some, like Cirrus, have taken them up on it, and asked that their trade secrets be protected in return.
Actually, Steve, if you want to come to Ada, or meet with GAMI elsewhere (ASTM meeting?) they’d be happy to prove it to you.
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GAMI has decided on secrecy and claiming the standards don’t apply to them because they’re smarter.
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That’s not accurate. They have shared their spec, and it in turn references about 40 ASTM specs for the properties of their fuel, above and beyond what D910 provides.
The way product liability generally works is that the manufacturer generally bears that risk. You don’t sue ASTM if that’s the spec being used, or at least primarily, you don’t sue GAMI.
Vitol has about a $30 billion equity value, and made a $15 billion operating profit last year. I think they can handle a little product liability.
Paul
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Sad to hear that the court system is involved in the totally inept, FAA and AOPA 40 year effort to get lead out of Aviation Fuel. It should not be like this in other countries they have made efforts to make 91 UL available, but seems no effort at AOPA has been made. This is a good reason to leave AOPA for the EAA which has a least been trying to make some effort in that direction.
It’s not clear from your message, but you represent GAMI? Are GAMI? You mix “we” and “they”.
Standards compliance is not dispositive in either product liability or related tort cases, so obviously I cannot site a “case where it worked”. However, standards compliance goes far in shifting liability away from members of the supply chain. Various law school textbooks on torts can help you with classic cases where adherence to standards (as opposed to customs or self-created processes) was an important factor.
Assume, arguendo, there’s a distributor who followed GAMI’s rules, but there is no ASTM standard. They acted without any obvious negligence and with reasonable diligence.
There are at least 2 major changes to a prospective liability case against the distributor:
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With the ASTM standard, the question of liability might have been limited to “is the standard reasonable?” rather than “did the distributor act reasonably?” The latter is a much broader subjective inquiry into all aspects of reasonableness on the part of the distributor (including in relying on GAMI who chose willingly and publicly not to participate in industry standards) than when the standard is established by industry experts in a consensus and the inquiry may be limited to objectively whether the distributor followed the standard.
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There may be a rebuttable presumption of reasonableness. See Texas Civil Practice and Remedies 82.008, for example. Granted this code is specific to government standards, but it’s fairly reasonable to argue this should extend to industry consensus standards.