[Federal Register Volume 75, Number 213 (Thursday, November 4, 2010)]
[Proposed Rules]
[Pages 68044-68091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27446]
[[Page 68043]]
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Part II
Environmental Protection Agency
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40 CFR Part 80
Regulation To Mitigate the Misfueling of Vehicles and Engines With
Gasoline Containing Greater Than Ten Volume Percent Ethanol and
Modifications to the Reformulated and Conventional Gasoline Programs;
Proposed Rule
Federal Register / Vol. 75 , No. 213 / Thursday, November 4, 2010 /
Proposed Rules
[[Page 68044]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2010-0448; FRL-9215-4]
RIN 2060-AQ17
Regulation To Mitigate the Misfueling of Vehicles and Engines
With Gasoline Containing Greater Than Ten Volume Percent Ethanol and
Modifications to the Reformulated and Conventional Gasoline Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a regulatory program to help mitigate the
potential for misfueling of certain engines, vehicles and equipment
with gasoline containing greater than 10 volume percent (``vol%'')
ethanol up to 15 vol% ethanol (E15). This proposal is in conjunction
with the Agency's partial waiver, pursuant to Clean Air Act section
211(f)(4), which allows for the introduction into commerce of gasoline-
ethanol blends containing up to 15 vol% ethanol for use in model year
2007 and newer on-highway light-duty motor vehicles. The E15 waiver is
limited in scope to a portion of the light-duty fleet, and the proposed
misfueling mitigation program will help avoid the misfueling of all
other engines, vehicles, and equipment with unapproved fuels. This
proposed rule would require all E15 gasoline fuel dispensers to have a
label if a retail station chooses to sell E15 and seeks comment on
separate labeling requirements for fuel blender pumps and fuel pumps
that dispense E85. Similar to the prohibition in section 211(f)(1), the
proposed rule would prohibit the use of gasoline containing greater
than 10 vol% ethanol in vehicles and engines not covered by the partial
waiver for E15. In addition, the proposed rule would require product
transfer documents specifying ethanol content and Reid Vapor Pressure
(RVP) to accompany the transfer of gasoline blended with ethanol and a
national survey of retail stations to ensure compliance with the these
requirements. The proposed rule would also modify the Reformulated
Gasoline (``RFG'') program by updating the Complex Model to allow fuel
manufacturers to certify batches of gasoline containing up to 15 vol%
ethanol.
DATES: Comments must be received on or before January 3, 2011. Under
the Paperwork Reduction Act, comments on the information collection
provisions are best assured of full consideration if the Office of
Management and Budget (OMB) receives a copy of your comments on or
before December 6, 2010, thirty days after date of publication in the
Federal Register.
Hearing: We will hold a public hearing on November 16, 2010 at the
Millennium Knickerbocker Hotel in Chicago, IL. The hearing will start
at 10 a.m. local time and continue until everyone has had a chance to
speak. If you want to testify at the hearing, notify the contact person
listed under FOR FURTHER INFORMATION CONTACT by November 8, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0448, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2010-0448, Environmental Protection Agency, Mailcode: 6102T, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total
of two copies.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20460. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0448. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to ``What Should I Consider as I Prepare My Comments for
EPA?'' in the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air and Radiation
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Julia MacAllister, Office of
Transportation and Air Quality, Assessment and Standards Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105; Telephone number: 734-214-4131; Fax number: 734-214-4816; E-mail
address: [email protected], or Assessment and Standards
Division Hotline; telephone number (734) 214-4636; E-mail address
[email protected].
SUPPLEMENTARY INFORMATION:
Does This Action Apply to Me?
Entities potentially affected by this action include those involved
with the production, importation, distribution, marketing, or retailing
of diesel fuel and production of gasoline. Categories and entities
affected by this action include:
[[Page 68045]]
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NAICS \1\
Category codes SIC \2\ codes Examples of potentially regulated entities
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Industry.......................................................... 324110 2911 Petroleum refineries.
Industry.......................................................... 325193 2869 Ethyl alcohol manufacturing.
Industry.......................................................... 424710 5171 Petroleum bulk stations and terminals.
Industry.......................................................... 424720 5172 Petroleum and petroleum products merchant
wholesalers.
Industry.......................................................... 454319 5989 Other fuel dealers.
Industry.......................................................... 447190 5541 Gasoline service stations.
Marine service stations.
Truck stops.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action; however, other types of entities not listed in the table could
also be affected. To determine whether your entity is affected by this
action, you should examine the applicability criteria of Parts 79 and
80 of title 40 of the Code of Federal Regulations. If you have any
question regarding applicability of this action to a particular entity,
consult the person in the preceding FOR FURTHER INFORMATION CONTACT
section.
What should I consider as I prepare my comments for EPA?
A. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the information that
you claim to be CBI. For CBI information on a disk or CD ROM that you
mail to EPA, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information marked as CBI
will not be disclosed except in accordance with procedures set forth in
40 CFR Part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided by 40 CFR Part 2.
Outline of This Preamble
I. Overview
II. Background
A. Statutory Authority
B. E15 Waiver Request
C. Reasons for the Proposed Actions in This Rulemaking
D. Federalism Implications
III. Misfueling Mitigation Measures
A. Labeling Requirements
1. E15 Labels
a. Information Component
b. Legal Approval Component
c. Technical Warning Component
d. Legal Warning Component
e. E15 Label Proposal
2. Additional Fuel Pump Labeling Requirements
3. Stakeholder Labeling Suggestions
4. FTC Labeling Proposal
5. Labeling Requirements and Liability for Misfueling
B. Product Transfer Document Requirements
1. PTD Requirements Downstream of the Point of Ethanol Addition
2. PTD Requirements Up to and Including the Point of Ethanol
Addition
3. General PTD Requirements
C. Retail Fuel Dispenser Label and Fuel Ethanol Content Survey
D. Program Outreach
E. What Other Means of Mitigating Misfueling Were Considered?
F. Cost of Compliance
1. Labeling Costs
2. PTD Costs
3. Survey Costs
4. Avoided Motor Vehicle and Nonroad Product Repair Costs
G. Compliance and Enforcement
1. What are the Prohibited Acts?
2. What are the Proposed Liability and Penalty Provisions for
Noncompliance?
a. Presumptive Liability
b. Affirmative Defenses for Liable Parties
c. Penalties for Violations
IV. Other Measures to Ensure Compliance
A. The 1.0 psi RVP Waiver for E10 Blends
1. National RVP Survey
2. RVP and E15 Underground Storage Tank Transition
B. Credit for RFG Downstream Oxygenate Blending
V. Modification of the Complex Model
A. Background of RFG Requirements
B. The Complex Model
VI. Why are we proposing misfueling mitigation measures?
A. History of Ethanol Use in the U.S.
B. Chemical and Physical Differences between Ethanol and
Gasoline
1. Impact on the A/F Ratio--Combustion Enleanment
2. Polarity and affinity for water
3. Material Compatibility
4. Corrosion
5. Solvency
6. Volatility
C. Model Year 2000 and Older Light-Duty Motor Vehicles
1. Enleanment
2. Material Compatibility
3. Motor Vehicle Population and Anticipated Emissions Impact
D. Heavy-duty Gasoline Engines and Vehicles
E. Motorcycles
F. Nonroad Engines, Vehicles, and Equipment (Nonroad Products)
1. Introduction
2. Enleanment
3. Material Compatibility and Corrosion
4. Phase Separation and Solvency/Detergency
G. Model Year 2007 and Newer Light-duty Motor Vehicles
H. Model Year 2001-2006 Motor Vehicles
I. Emissions Impact Summary and Conclusions
VII. What is our legal authority for proposing these misfueling
mitigation measures?
A. Health and Welfare Concerns of Air Pollution Caused by E15
B. Impact of E15 Emission Products on Emission Control Systems
C. Effect of Misfueling Mitigation Measures on the Use of Other
Fuels or Fuel Additives
VIII. Public Participation
A. How Do I Submit Comments?
B. How Should I Submit CBI to the Agency?
C. Will There Be a Public Hearing?
D. Comment Period
E. What Should I Consider as I Prepare My Comments for EPA?
IX. Administrative Requirements
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A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Overview
In today's action, the U.S. Environmental Protection Agency (EPA or
the Agency) is proposing regulations to mitigate the potential for
misfueling of vehicles and engines with gasoline containing up to 15
vol% ethanol (E15).\1\ These regulations are being proposed in
conjunction with today's action by EPA granting of a partial waiver for
ethanol blends up to 15 vol% ethanol under section 211(f)(4) of the
Clean Air Act (CAA or the Act). This partial waiver will allow the
introduction into commerce of E15 for use in 2007 model year (MY) and
newer light-duty motor vehicles. In partially granting the E15 waiver,
EPA imposed a number of conditions on the refiners and renewable fuel
producers subject to the waiver. These conditions are designed to help
ensure that E15 is introduced into commerce for use in MY2007 and newer
light-duty motor vehicles and flexible-fueled vehicles, and not for use
in any other vehicles or engines. Some of the regulatory provisions
proposed today parallel those conditions and are expected to be a more
efficient way to help ensure that the conditions of the E15 partial
waiver decision are met and to minimize in-use emissions increases that
might result from misfueling vehicles and engines with E15. The
proposed safeguards would also promote the successful introduction of
E15 into commerce.
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\1\ For purposes of this preamble, E15 refers to gasoline-
ethanol blended fuels that contain greater than 10 vol% and no more
than 15 vol% ethanol content.
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We are proposing four requirements as part of our misfueling
mitigation regulations. The first requirement, consistent with the
partial waiver being granted today, is a prohibition against using E15
in MY2000 and older motor vehicles, heavy-duty gasoline engines and
vehicles, on and off-highway motorcycles,\2\ and nonroad engines,
vehicles, and equipment.\3\ This prohibition is similar in nature to
the prohibition on producers of fuels and fuel additives under section
211(f)(1); however, the prohibition in section 211(f)(1) only applies
to these upstream parties. The prohibitions proposed today would apply
at the retail level as well as upstream. The conditions on the partial
waiver and the regulations proposed today are similar in nature and
have a common goal--ensuring that E15 is used in appropriate motor
vehicles covered by the partial waiver, and is not used in other motor
vehicles and engines. Since the Agency is deferring a decision for
MY2001-2006 light-duty motor vehicles, we are not proposing a
prohibition with respect to the fuel used in these motor vehicles at
this time. DOE testing of MY2001-2006 light-duty motor vehicles is
ongoing and EPA expects to make a waiver determination for these
vehicles shortly after the results of the DOE testing are available. If
EPA does not grant an E15 waiver for MY2001-2006 light-duty motor
vehicles, then we would expect to include the same prohibitions for
these MY motor vehicles in the final rulemaking.
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\2\ For purposes of this preamble on and off-highway motorcycles
are referred to collectively as ``motorcycles.''
\3\ For purposes of this preamble, nonroad engines, vehicles,
and equipment are referred to as ``nonroad products.''
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Second, we are proposing labeling requirements for fuel pumps that
dispense E15 to effectively inform consumers regarding the appropriate
fuel to be used in vehicles and engines. Third, EPA proposes that
product transfer documents (PTDs) from refiners, gasoline terminals,
and oxygenate blenders specify the ethanol content or approved level of
ethanol addition, of the fuel being sold to retail stations or
wholesale purchaser-consumer to ensure that retail stations and
wholesale purchaser-consumers know the level of ethanol content they
are buying so that, in turn, the retail pumps can be properly labeled.
Fourth, EPA proposes a national survey requirement on ethanol producers
and the blenders of E15 (e.g., refiners, gasoline terminals, oxygenate
blenders) to ensure that retail station pumps are in fact being labeled
properly. EPA is seeking comment on including an RVP component to this
national E15 labeling survey to help ensure that summertime RVP
requirements are being met throughout the gasoline distribution chain.
To avoid confusion for consumers when pumps are not labeled, the Agency
is also seeking comment on requiring the labeling of non-E15 pumps. The
Agency has used such misfueling mitigation strategies to implement
several fuel programs over the past thirty years, including the
unleaded gasoline program, the RFG program, and the diesel sulfur
program. The Agency believes that the misfueling mitigation measures
proposed in this rulemaking, coupled with the E15 waiver and a
substantial consumer education and outreach effort by industry, can be
an effective strategy to help reduce misfueling and the associated
emissions impacts while enabling the use of E15 in appropriate
vehicles.
The misfueling mitigation program proposed today generally mirrors
the misfueling conditions in today's partial waiver decision. While the
waiver provides an opportunity for a fuel or fuel additive manufacturer
to meet the conditions, the Agency believes that the proposed
safeguards would provide the most practical method of addressing the
purposes and satisfying the conditions of today's partial waiver
decision.
These misfueling mitigation regulations are proposed under CAA
section 211(c), based on the projected emission increases that would be
avoided by deterring the use of E15 in older motor vehicles, heavy-duty
gasoline engines and vehicles, motorcycles and nonroad products.
Engineering judgment supported by test data, where available, forms the
basis for our technical review and conclusions. Our engineering
assessment described in Section VI identifies a number of emissions
related concerns with the long-term use of E15 in MY2000 and older
light-duty motor vehicles, heavy-duty gasoline engines and vehicles,
motorcycles, and nonroad products. For motor vehicles these concerns
include the potential for catalyst deterioration or catalyst failure as
well as material compatibility issues that could lead to extremely
elevated exhaust and evaporative emissions. For nonroad products and
for motorcycles the misfueling concerns include not only the potential
for elevated exhaust and evaporative emissions but also the potential
for engine failure from overheating. While it is not possible to
quantify precisely the frequency at which motor vehicles and nonroad
products might experience these problems with the use of E15, we
believe that emissions related problems could potentially occur with
enough frequency that the resulting emission benefits from avoiding
misfueling would outweigh the relatively low cost imposed by the
proposed regulations. This would justify the proposed rule,
[[Page 68047]]
even if a very low percentage of vehicle and engines experiences
problems.
As described below in Section VI and in the E15 partial waiver
decision document,\4\ our assessment indicates that manufacturers have
designed at least MY2007 and newer light-duty motor vehicles to be
durable for use on gasoline blends up to E15. This conclusion is
primarily based on the recently completed catalyst durability test
program conducted by the Department of Energy (DOE) wherein they tested
19 vehicle models representative of the Tier 2 motor vehicle fleet out
to their full useful life. The study found that Tier 2 motor vehicles
continued to meet their emissions standards after operating on E15 for
full useful life mileage accumulation. Additionally, according to our
analysis of the DOE test data, for Tier 2 motor vehicles we found no
statistically significant increases in the emissions of regulated
pollutants for motor vehicles operating on E15, and no apparent
material compatibility issues, when compared to vehicles that were
operated on E0.\5\ These results confirm our engineering assessment
that MY2007 and newer motor vehicle's emissions should be less
sensitive to the increased ethanol content in E15. This engineering
assessment is based on the advances in motor vehicle materials and
technology in response to in-use experience with E10 and the
requirement that motor vehicles comply with a series of important new
EPA emission requirements over the years, e.g., enhanced evaporative
emission standards and E10 durability testing, supplemental FTP
emission standards, CAP2000 in-use durability requirements, and the
Tier 2 motor vehicle standards themselves.
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\4\ See Partial Grant and Partial Denial of Clean Air Act Waiver
Application Submitted by Growth Energy to Increase the Allowable
Ethanol Content of Gasoline to 15 Percent; Decision of the
Administrator elsewhere in this issue of the Federal Register.
\5\ See Partial Grant and Partial Denial of Clean Air Act Waiver
Application Submitted by Growth Energy to Increase the Allowable
Ethanol Content of Gasoline to 15 Percent; Decision of the
Administrator elsewhere in this issue of the Federal Register.
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For MY2001-2006 light-duty motor vehicles, it is currently less
clear whether they could experience significant emission increases when
fueled on E15 like MY2000 and older motor vehicles, or continue to
function properly like the newer 2007 and newer motor vehicles. On the
one hand we believe that many of the same elements for ethanol
compatibility of MY2007 and newer light-duty motor vehicles also apply
to MY2001-2006 light-duty motor vehicles (e.g., enhanced evaporative
emission standards, SFTP, CAP2000). On the other hand, they were not
all required to demonstrate evaporative emission system durability on
E10 or to upgrade their catalyst and emission control systems to the
extent needed to comply with the Tier 2 standards. Furthermore,
currently available test data on these model year vehicles is much more
limited. DOE is in the process of developing relevant data for these
model year vehicles. Specifically, DOE is conducting catalyst
durability testing on six motor vehicle models certified to NLEV
standards and two motor vehicles certified to Tier 1 standards
scheduled to be completed in November, 2010. Additionally, a study of
in-use motor vehicles by Rochester Institute of Technology on E20 \6\
suggests such motor vehicles may operate acceptably on E20--and by
interpolation E15. However, the mileage accumulation of RIT test
vehicles is limited and the study is still ongoing until November 2010.
This additional information, as well as information gathered through
comment on this proposal and any final decision on a section 211(f)
waiver for MY2001-2006 light-duty motor vehicles, will be considered in
the decisions made for the final rule.
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\6\ The effect of E20 ethanol fuel on vehicle emissions, B
Hilton and B Duddy, Center for Integrated Manufacturing Studies,
Rochester Institute of Technology, June 26, 2009. See Docket ID No.
EPA-HQ-OAR-2010-0448.
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In addition to misfueling mitigation measures, today's action also
proposes slight modifications to the Reformulated Gasoline and
Antidumping fuels programs to open the way for refiners and importers
to produce and certify gasoline containing up to 15 vol% ethanol. To
measure compliance with the RFG and anti-dumping standards, the
emissions performance of gasoline is calculated using a model, called
the Complex Model, which predicts the emissions of each regulated
pollutant based on the measured values of certain gasoline properties.
For gasoline to be sold in the U.S., it must comply with the RFG and
Antidumping standards and refiners are required to certify that their
fuel meets the standards by using the Complex Model. Currently, the
equations in the model are limited to an oxygen content of no more than
4.0% by weight in gasoline, which is the maximum possible amount of
oxygen in E10. EPA is proposing to modify the Complex Model to allow
fuel manufacturers to certify batches of E15 fuel.
Finally, EPA proposes to require that Reid Vapor Pressure (RVP) be
identified on PTDs from fuel refineries to oxygenate blenders for
conventional gasoline to ensure that EPA summertime RVP requirements
are met. This is necessary because the waiver announced today is for
blends that meet the summertime gasoline volatility standards for
conventional gasoline.\7\ In order to introduce a fuel that meets both
the Federal summertime RVP standards and contains between 10 and 15
vol% ethanol, fuel refiners would have to create a fuel or blendstock
that has approximately 1.0 psi lower RVP than a fuel or blendstock
intended for E10 due to the interaction between gasoline volatility and
ethanol when blended. Oxygenate blenders would need to know the RVP of
a blendstock or have the intended ethanol content of a blendstock be
specified on the PTD to ensure that they know the correct amount of
ethanol that should be blended into a fuel. The Agency is not proposing
to change RFG PTD requirements found at 40 CFR 80.77 since RVP is
carefully controlled throughout the distribution chain in order to
comply with summertime RFG VOC emissions performance standards.
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\7\ See section IV.A. for more information on the 1.0 psi RVP
waiver.
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II. Background
A. Statutory Authority
CAA section 211(f)(1) makes it unlawful for any manufacturer of any
fuel or fuel additive to first introduce into commerce, or to increase
the concentration in use of, any fuel or fuel additive for use in motor
vehicles manufactured after model year 1974 unless it is substantially
similar to any fuel or fuel additive utilized in the certification of
any model year 1975, or subsequent model year, vehicle or engine under
section 206 of the Act.
Section 211(f)(4) of the Act provides that upon application by any
fuel or fuel additive manufacturer, the Administrator may waive the
prohibition of section 211(f)(1). A waiver may be granted if the
Administrator determines that the applicant has established that the
fuel or fuel additive, and the emission products of such fuel or fuel
additive, will not cause or contribute to a failure of any emission
control device or system (over the useful life of the motor vehicle,
motor vehicle engine, nonroad engine or nonroad vehicle in which such
device or system is used) to achieve compliance with the emission
standards to which the vehicle or engine has been certified. In other
words, the Administrator may grant a waiver for an
[[Page 68048]]
otherwise prohibited fuel or fuel additive if the applicant can
demonstrate that the fuel or fuel additive will not cause or contribute
to engines, vehicles or equipment failing to meet their emissions
standards over their useful life.
EPA previously issued a ``substantially similar'' interpretive rule
for unleaded gasoline which allows oxygen content up to 2.7% by weight
for certain ethers and alcohols.\8\ E10 contains approximately 3.5%
oxygen by weight, which means E10 is not ``substantially similar'' to
certification fuel under the current interpretation. As explained at 44
FR 20777 (April 6, 1979), E10 received a waiver of the substantially
similar prohibition by operation of law since EPA did not grant or deny
a waiver request for a fuel containing 90% unleaded gasoline and 10%
ethyl alcohol within 180 days of receiving that request. This waiver by
operation of law was based on the then current terms of CAA section
211(f)(4), which has subsequently been amended.
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\8\ See 56 FR 5352 (February 11, 1991).
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Section 211(c)(1) of the Act allows the Administrator, by
regulation, to ``control or prohibit the manufacture, introduction into
commerce, offering for sale, or sale of any fuel or fuel additive for
use in a motor vehicle, motor vehicle engine, or nonroad engine or
nonroad vehicle (A) if, in the judgment of the Administrator, any fuel
or fuel additive or any emission product of such fuel or fuel additive
causes, or contributes, to air pollution or water pollution (including
any degradation in the quality of groundwater) that may reasonably be
anticipated to endanger the public health or welfare, or (B) if
emission products of such fuel or fuel additive will impair to a
significant degree the performance of any emission control device or
system which is in general use, or which the Administrator finds has
been developed to a point where in a reasonable time it would be in
general use were such regulation to be promulgated.'' Today's proposed
misfueling regulations are based on this authority in section
211(c)(1), as well as our recordkeeping and information collection
authority under sections 208 and 114.
B. E15 Waiver Request
On March 6, 2009, Growth Energy and 54 ethanol manufacturers
submitted an application to EPA for a waiver under section 211(f)(4) of
the CAA. This application sought a waiver for ethanol-gasoline blends
of up to 15 vol% ethanol.\9\ On April 21, 2009, EPA published notice of
the receipt of the application, and, as required by CAA section
211(f)(4) of the Act, EPA requested public comment on all aspects of
the waiver application, to assist the Administrator in determining
whether the statutory basis for granting the waiver request for
ethanol-gasoline blends containing up to 15 vol% ethanol had been met.
(See 74 FR 18228).
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\9\ Since E15 has greater than 2.7 wt% oxygen content, E15 needs
a waiver under CAA section 211(f)(4).
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In a separate action today, EPA waived the prohibition in CAA
section 211(f)(1) to allow introduction into commerce of E15 for use in
MY2007 and newer light-duty motor vehicles, including passenger cars,
light-duty trucks and medium duty passenger vehicles (hereafter light-
duty motor vehicles). EPA is deferring a decision concerning MY2001-
2006 light-duty motor vehicles, and has denied the waiver for all other
motor vehicles.\10\ EPA's partial waiver decision is based on a
determination that E15 will not cause or contribute to a failure of
MY2007 and newer light-duty motor vehicles to achieve compliance with
the emissions standards to which they were certified under section 206
of the CAA over their useful lives. EPA is still evaluating the effect
of E15 on MY2001-2006 light-duty motor vehicles to determine whether a
waiver of CAA section 211(f)(1) is appropriate for use of E15 in those
motor vehicles. EPA also decided that it could not make such a
determination and therefore was denying the waiver for all other motor
vehicles, including MY2000 and older light-duty motor vehicles. EPA
requests comment and additional information regarding the use of E15 in
MY 2000 and older motor vehicles.
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\10\ See Partial Grant and Partial Denial of Clean Air Act
Waiver Application Submitted by Growth Energy to Increase the
Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the
Administrator elsewhere in this issue of the Federal Register.
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EPA issued the partial waiver with several conditions, some of
which would be fulfilled by the safeguards being proposed today. The
conditions apply to the upstream parties subject to the waiver
(refiners, producers of ethanol and oxygenate blenders that introduce
E15 into commerce), and are designed to ensure that when E15 is
introduced into commerce, it will only be used in the appropriate
light-duty motor vehicles. Some of the conditions call for the ethanol
blenders, fuel manufacturers, and fuel additive manufacturers (ethanol
producers) to take various actions to control the distribution and use
of their product so that E15 is only used in approved motor vehicles.
The partial waiver imposes different conditions on the different
parties. Ethanol blenders, fuel manufacturers, and ethanol producers
that introduce E15 into commerce are all responsible for making sure
that appropriate labeling occurs on fuel pumps to mitigate potential
misfueling. However, this condition, in particular, may be difficult
for these parties to satisfy given their limited control over actions
taken at retail, which, as discussed below, prompted today's proposal
for fuel pump labels. All three parties are also responsible for
conducting fuel pump labeling surveys to ensure that pumps are properly
labeled and that the correct ethanol blends are loaded into the
appropriate tanks at retail stations. Ethanol blenders and fuel
manufacturers must also use PTDs to properly document information
regarding the ethanol blends to help ensure proper blending and
distribution.
In June 2010 EPA received a request from ADM to consider, within
the context of the E15 waiver application, a waiver for E12 for all
motor vehicles.\11\ As discussed in the E15 waiver decision document,
EPA concluded that there was insufficient basis to support such a
waiver for motor vehicles or nonroad products beyond the MY2007 and
newer model year light-duty motor vehicles for which the E15 waiver was
being granted.
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\11\ Woertz, P.A. Letter to Lisa P. Jackson. 7 June 2010. See
Docket ID EPA-HQ-OAR-2009-0211.
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C. Reasons for the Proposed Actions in This Rulemaking
The proposed rules would directly prohibit or control the
distribution and use of E15. The rules would apply to parties such as
retail stations that are not directly subject to the conditions on the
waiver. Collectively, these provisions would mitigate misfueling and
maximize the likelihood that E15 is only used in approved motor
vehicles. This would also promote the successful introduction of E15
into commerce. The specific provisions are discussed in detail in
Sections III-V.
In this action, the Agency is proposing to use its authority to
help minimize the potential for emissions increases associated with
misfueling with E15. Importantly, the proposed safeguards would also
assist the ethanol producers and blenders in carrying out the
conditions of the waiver. EPA realizes that ethanol blenders, fuel
manufacturers, and ethanol producers
[[Page 68049]]
may have difficulty satisfying the conditions outlined in the E15
partial waiver decision, particularly the fuel pump labeling
requirements. Most retail stations are independently owned and
operated, which may make it difficult for the ethanol blenders, fuel
manufacturers, and ethanol producers to ensure that labels are properly
placed on fuel pumps dispensing E15. Under CAA section 211(f)(4), EPA
is limited in what kind of conditions it can place on a waiver decision
and on whom those conditions may be placed. For example, EPA placed the
partial waiver conditions on the ethanol blenders, fuel manufacturers,
and ethanol producers, the parties subject to the prohibition in
section 211(f)(1), and not on the retail stations. This makes it
difficult to ensure effective or complete pump labeling and misfueling
mitigation. Without Agency action that requires the provisions proposed
in today's rulemaking (i.e. fuel pump labeling, PTDs, and a national
survey), the conditions contained in the E15 partial waiver decision
would likely make the distribution of E15 impracticable. However, under
CAA section 211(c), EPA has the authority to adopt appropriate controls
or prohibitions on the distribution and sale of fuels and fuel
additives to avoid emissions increases. EPA's proposed use of this
authority would also assist the ethanol blenders, fuel manufacturers,
and ethanol producers in carrying out the conditions of the partial
waiver so the conditions on the E15 partial waiver are properly
implemented. Today's rulemaking also provides EPA with additional tools
for regulatory oversight of the ethanol blenders, fuel manufacturers,
and ethanol producers introducing E15 into commerce.
D. Federalism Implications
As mentioned in Section II.A, the proposed prohibition regarding
use of E15 in MY2000 and older vehicles, heavy-duty gasoline engines
and vehicles, motorcycles, and nonroad engines, vehicles, and equipment
is based on the authority in section 211(c)(1) of the Act, as well as
our recordkeeping and information collection authority under sections
208 and 114. Section 211(c)(4)(A) of the CAA provides that no State or
political subdivision thereof may prescribe or attempt to enforce ``for
purposes of motor vehicle emission control'' any control or prohibition
``respecting any characteristic or component of a fuel or fuel
additive'' in a motor vehicle or motor vehicle engine if EPA has
prescribed a control or prohibition applicable to such characteristic
or component of the fuel or fuel additive under section 211(c)(1). This
prohibition applies to all States except California, as provided in
section 211(c)(4)(B). Also, section 211(c)(4)(A) applies only to
controls or prohibitions respecting any characteristics or components
of fuels or fuel additives for motor vehicles or motor vehicle engines,
that is, highway vehicles. Therefore, a State control or prohibition
would be preempted under section 211(c)(4)(A), only if it is ``for the
purposes of motor vehicle emission control.'' Further, even if a State
rule is established for purposes of motor vehicle emission control, it
will not be preempted under section 211(c)(4)(A) unless it is for the
same ``characteristic or component of a fuel or fuel additive in a
motor vehicle or motor vehicle engine'' for which EPA has prescribed a
control or prohibition under section 211(c)(1)(A). Today's action
proposes a rule that would limit the ethanol content in fuel used in
certain vehicles and engines as well as proposes misfueling mitigation
measures to effectuate that limitation.
The Agency is not aware of any State rules or laws that would be
preempted by today's proposed rule if adopted. States have not
controlled ethanol volumes in gasoline for purposes of motor vehicle
emission control. Also, our rule would not require States to change
their existing labels. The rule as proposed would impose no substantial
direct costs, nor would it have any substantial direct effects on State
or local governments. EPA requests comments on the issue of preemption
of State fuel programs.
Further, EPA consulted with State and local officials early in the
process of developing the proposed action to permit them to have
meaningful and timely input into its development. EPA met with members
of the National Association of Clean Air Agencies (NACAA) to discuss
the nature of today's proposed rule. Additionally, we provided State
and local governments an opportunity to provide comment on the
implementation of misfueling mitigation measures for a partial E15
waiver in both the RFS2 NPRM (see 74 FR 25016) and the E15 waiver
request notice (see 74 FR 18228). We received comments from only one
State on this issue in the RFS2 NPRM, and it supported efforts for
properly labeling fuel pumps containing gasoline-ethanol blends.
III. Misfueling Mitigation Measures
As explained above, CAA section 211(c) grants the Agency authority
to control or prohibit the distribution of a fuel or fuel additive when
it will significantly impair emission controls or the emission products
from that fuel will cause or contribute to air pollution that we
reasonably anticipate may endanger public health or welfare. As more
fully discussed in Section VI, we are proposing to prohibit use of E15
in MY2000 and older light-duty motor vehicles, and in all heavy-duty
gasoline engines and vehicles, motorcycles and nonroad products based
on the projected increased emissions that would occur from using E15 in
those motor vehicles and nonroad products. We are also proposing to
prohibit gasoline retail stations and wholesale purchaser-consumer
facilities from selling E15 for use in these products if pumps at those
locations are not properly labeled. Since the Agency is deferring a
decision for MY2001-2006 light-duty motor vehicles, we are not
proposing a prohibition for fuel used in these motor vehicles at this
time. DOE testing of MY2001-2006 light-duty motor vehicles is ongoing
and EPA expects to make a waiver determination for these vehicles
shortly after the results of the DOE testing are available. If EPA does
not grant an E15 waiver for MY2001-2006 light-duty motor vehicles, then
we would expect to include the same prohibitions for these MY motor
vehicles in the final rulemaking .\12\
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\12\ Even though we are not proposing an actual prohibition for
motor vehicles MY2001-2006, it is still unlawful to use E15 in these
motor vehicles until an E15 waiver is granted for these motor
vehicles.
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EPA is proposing a misfueling mitigation strategy to effectuate
those proposed prohibitions and to more generally limit the use of E15
to MY2007 and newer light-duty motor vehicles as approved today in the
E15 partial waiver decision. We believe that there are four important
components to an effective misfueling mitigation strategy for reducing
the potential for misfueling with E15. First, effective labeling is a
key factor. Labeling is needed to inform consumers of the potential
impacts of using E15 in vehicles and engines not approved for its use,
to mitigate the potential for intentional and unintentional misfueling
of these vehicles and engines. Labeling is also done at the point of
sale where the consumer most likely will be choosing which fuel to use.
Second, retail stations and wholesale purchaser-consumers need
assurance regarding the ethanol content of the fuel that they purchase
so they can direct the fuel to the appropriate storage tank and
properly label their fuel pumps. The use of proper
[[Page 68050]]
documentation in the form of PTDs has proven to be an effective means
of both ensuring that retail stations know what fuel they are
purchasing and as a possible defense for retail stations in cases of
liability in the event of a violation of EPA standards. Third, national
labeling and fuel sampling surveys are necessary to ensure that retail
stations are complying with labeling requirements, ethanol blenders are
not blending more than the stated amount of ethanol on PTDs, and
assuring downstream compliance for fuel refiners. The Agency has used
this general strategy to implement several fuel programs over the past
thirty years, including the unleaded gasoline program, the RFG program,
and the diesel sulfur program. EPA solicits comments on all of these
provisions as more fully described below.
The fourth component of an effective misfueling mitigation strategy
is effective public outreach and consumer education. Outreach to
consumers and stakeholders is critical to mitigate misfueling incidents
that can result in increased emissions and vehicle or engine damage.
Consumers will need to be engaged through a variety of media to ensure
that accurate information is conveyed to the owners and operators of
vehicles and engines.
The misfueling mitigation program proposed today generally mirrors
the misfueling conditions in today's partial waiver decision. While the
waiver provides an opportunity for a fuel or fuel additive manufacturer
to meet the conditions, the Agency believes that the proposed the
measures would provide the most practical method of meeting the
purposes of and satisfying the conditions of today's partial waiver
decision.
A. Labeling Requirements
Today's rule proposes to require that retailers and wholesale
purchaser-consumers who choose to sell or dispense E15 must label any
dispensers of this gasoline-ethanol blend. We are also seeking comment
on requiring that dispensers of other gasoline-ethanol blends that
contain 10 vol% ethanol or less to be labeled at such time as a retail
station chooses to dispense E15 to help alleviate any confusion to
consumers. Additionally, we seek comment on requiring labels for E85
pumps and blender pumps.
1. E15 Labels
We are proposing requirements that gasoline pumps dispensing E15 be
labeled. The label would have to indicate that the fuel contains up to
15 vol% ethanol--that is, the fuel is a gasoline-ethanol blend that
contains greater than 10 vol% ethanol but not more than 15 vol%
ethanol. Retailers and wholesale purchaser-consumers who choose to sell
E15 would be required to label pumps dispensing E15, clearly indicating
that the fuel should not be used in MY2000 and older motor vehicles,
motorcycles, heavy-duty gasoline engines and vehicles, or any nonroad
products. However, EPA also proposes that the label would be modified
if the E15 waiver is extended to earlier model year vehicles and/or
nonroad products.
Based on the Agency's experience with fuel pump labeling for Ultra-
Low Sulfur Diesel (ULSD) and Low Sulfur Diesel (LSD) (see 40 CFR
80.570), there are four important elements to an effective label for
misfueling. The Agency proposes that the language of the E15 label
would have four components: (1) An information component; (2) a legal
approval component; (3) a technical warning component; and (4) a legal
warning component. Together, these four components highlight the
critical information necessary to inform consumers about the impacts of
using E15.
a. Information Component
The first component informs consumers of the maximum ethanol
content the fuel may contain. For E15, the Agency proposes that the
information component of the label should contain two aspects, both an
acronym for the fuel (in this case E15) and a description of what the
acronym means (in this case informing consumers that the fuel may
consist of a range of ethanol up to a maximum of 15 vol% ethanol by
volume). We propose that this component of the label read:
This fuel contains 15% ethanol maximum
We propose that this label be applied to any fuel dispenser with
greater than 10% ethanol but not more than 15 vol% ethanol. Thus, in
the case of any mid-grade fuel that might be blended from E10 and E15,
it would also be required to have the E15 label.
b. Legal Approval Component
The second component of the label language would include
information that informs consumers of what vehicles and engines are
approved to use E15, mirroring EPA's decisions taken in the waiver
context. Since EPA granted a partial waiver of E15 limiting its legal
use to MY2007 and later light-duty motor vehicles, its use is only
permitted in these motor vehicles. Based on the partial waiver, the
Agency proposes that this portion of the label read as follows:
Use only in:
2007 and newer gasoline cars
2007 and newer light-duty trucks
Flex-fuel vehicles.
As discussed elsewhere in today's proposal, if EPA decides to include
more model years in a subsequent waiver decision based on the findings
of the testing program, then the model year distinction on the label
would also need to be adjusted accordingly. We anticipate this will
occur before this rulemaking is finalized, and we will make that
adjustment in the final rule. Therefore, the proposed language could
read as follows:
Use only in:
2001 and newer gasoline cars
2001 and newer light-duty trucks
Flex-fuel vehicles.
c. Technical Warning Component
The third component of the label language would alert consumers
that use of E15 in other engines, vehicles, and equipment might cause
damage to these products. Our experience with past labeling provisions
supports the need for both the legal and technical warning so that
consumers are informed of the reason for the prohibition. As discussed
more fully in Section VI, it appears that use of E15 in these
particular products may not only lead to increased emissions but also
has the potential, even if limited in nature, to lead to damage of
motor vehicle and nonroad product components. Without this component to
the label, consumers may more likely be tempted to misfuel--
particularly if the price in the marketplace for E15 is lower than E10.
Therefore, EPA proposes the following language: ``This fuel might
damage other vehicles or engines.''
d. Legal Warning Component
The fourth component of the label would inform consumers that using
E15 in a vehicle or engine not approved for E15 use violates Federal
law. This is similar to the approach used to mitigate the use of LSD in
2007 and newer on-highway diesel engines. Based on that experience, EPA
believes that explicitly notifying consumers that E15 is prohibited by
Federal law for use in MY2000 and older motor vehicles, heavy-duty
gasoline engines and vehicles, on and off-highway motorcycles, and all
nonroad products will result in consumers being less likely to misfuel.
Based on the language currently used on the LSD label (see 40 CFR
80.570), the Agency proposes that the label read
[[Page 68051]]
as follows: ``Federal law prohibits its use in other vehicles and
engines.''
The Agency has traditionally had ``WARNING'' language appear before
the legal warning component to better draw consumers' attention to the
prohibition of using a fuel in certain vehicles and engines (e.g. LSD
in 2007 and newer highway diesel vehicles). After consultation with
stakeholders, it was suggested that the Agency should both change
``WARNING'' to ``CAUTION!'' and place this language at the top of the
label. This would draw consumer attention to the label and help
mitigate both intentional and unintentional misfueling. Therefore, we
propose to have the word ``CAUTION!'' appear at the top of the label
before the information component. The Agency also considered the use of
the word ``ATTENTION'' instead of ``WARNING'' or ``CAUTION.'' We
specifically seek comment on using the term ``CAUTION!'' versus
``WARNING'' or ``ATTENTION''. In addition, the Agency is also
interested in whether using ``STOP'', with or without including a
depiction of a stop sign, would be an appropriate way to draw
consumers' attention to the label. We seek comment on whether there are
other words that would better convey the message to consumers.
e. E15 Label Proposal
Taken together, the Agency proposes the following E15 label:
[GRAPHIC] [TIFF OMITTED] TP04NO10.000
EPA seeks comment on all aspects of the label language. For
example, we seek comment on whether any additional label language
should be required or whether any language should be removed. In
particular, we seek comment on ways to portray the information in ways
that are the most concise and meaningful to consumers. EPA proposes
that the pump labels for E15 be required to be placed on pumps that
will dispense E15 prior to any commercial sale of E15.
One issue that arose from the labeling provisions of the diesel
sulfur program was that the diesel sulfur labeling provisions were
written in a way that allowed flexibility in color and design, causing
retailers difficulty with coming up with a suitable design that
satisfied EPA labeling requirements at the least possible cost. To help
address this issue, stakeholders met with EPA to discuss standardized
label designs that would both satisfy EPA diesel sulfur requirements
and make it easier for retail stations to procure labels. Labeling
templates were designed and made available to retail stations to use.
Based on this experience, we are proposing more explicit specifications
for the E15 label, covering not only the content, but also the
appearance of the E15 pump label.
In today's rulemaking, we are proposing similar appearance and
placement requirements for the E15 labels that were required for the
diesel sulfur program labels. We propose that the titles of the labels
(e.g., E15) must be 24-point, white, bold Arial font, the ``CAUTION!''
text should also be red, uppercase 16-point bold type, the text in the
labels which describes the ethanol content of the fuel must be 20-point
type and that all other required language in the labels must be 14-
point black, Arial font. We propose that the word ``prohibits'' be in
14 point, black, bold, italic, Arial font. All text should be centered
with the arrangement and spacing of the text consistent with the
illustration. We further propose that the label be 3.625'' width by
3.125'' height and that the background for the area which includes
``CAUTION!'', the title (i.e. ``E15''), and the ethanol content (i.e.,
``15% Ethanol Maximum) shall be 1-inch wide and neon-orange in color,
except that a rectangular white background large enough to encompass
``CAUTION!'' shall be superimposed on this neon-orange background.
While we believe it is important to propose these specific label
appearance requirements to aid in consumer recognition and avoid
unnecessary burden on retailers in developing their own designs, we
also recognize that there is a great deal of variation in the design of
fuel pumps and dispensers throughout the nation. Consequently, we not
only seek comment on all visual aspects of our proposed label, but also
suggest that if changes are deemed necessary, regulated and other
interested parties work together to provide us with a consensus
recommendation in their comments, if possible.
In addition to content and appearance, the placement of the label
on the pump is also of concern given the limited space available on the
fuel pump itself. In the diesel sulfur program
[[Page 68052]]
we required that labels must be placed on the vertical surface of each
pump housing and on each side that has gallon and price meters and that
labels be on the upper two-thirds of the pump in a location where they
are clearly visible (see 40 CFR 80.570(d)). We propose the same
placement requirements for the E15 labels. However, since most States
require labels for gasoline blended with ethanol and the Federal Trade
Commission (FTC) requires labels specifying minimum octane levels
across grades of gasoline, the addition of the proposed E15 label may
impact placement of other labels required by State or Federal law.
Furthermore, FTC has proposed a mid-level ethanol gasoline-blend label
(described below) in addition to its octane label which may further
confuse consumers and make E15 label placement difficult. The Agency
seeks comment on the proposed placement of the E15 label in order to
most effectively mitigate misfueling, while at the same time avoid
interference with other labels on the pumps.
2. Additional Fuel Pump Labeling Requirements
In addition to the E15 label proposed above, the Agency is seeking
comment on three additional fuel pump labels that would provide
consistent labeling across all gasoline fuel pumps. First, the Agency
seeks comment on requiring a label on gasoline dispensing fuel pumps
that are dispensing fuels which contain ethanol in concentrations up to
10 vol% (``E10 label'').\13\ We further seek comment on whether E10
labels should be required at a retail station only if and when E15 is
made available for sale at a particular retail station. Such an E10
label would have similar appearance and location requirements to the
E15 label and the required label language would follow a similar form
to that of the E15 label so as to standardize labels for consumers.
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\13\ If the fuel contains no ethanol, it could be labeled as
such.
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The purpose of such a label would be to enhance the effectiveness
of the E15 label to protect against consumer misfueling and the
associated emissions impacts. Without such labels, consumers may be
confused regarding whether an unlabeled pump was appropriate for their
vehicle or engine, undercutting the effectiveness and confidence in the
E15 label. This approach is consistent with the labeling requirements
we used in the diesel sulfur program where we required the use of
labels specifying which type of diesel fuel (low-sulfur diesel, ultra-
low sulfur diesel, etc.) was being dispensed from each pump dispensing
diesel fuel.
However, since increasing the number of labels will increase the
total cost to retail stations by requiring that all gasoline dispensing
fuel pumps at a station be labeled, we seek comment on the
appropriateness of such a requirement. The Agency seeks comment on the
following E10 label language:
E10
(Contains up to 10% Ethanol)
For use in all gasoline vehicles and engines.
The Agency also seeks comment on requiring a label on pumps
distributing E85 fuel. E85 is fuel that contains up to 85 vol% ethanol
and at least 15 vol% gasoline, used by flex fuel vehicles (FFVs).\14\
As we noted in the RFS2 NPRM, fuel retailers expressed concern that if
E85 were priced low enough to encourage FFV owners to fuel on it more
frequently, then owners of non-FFVs would also be enticed to misfuel on
it (see 74 FR 24977). This could cause the vehicles and equipment to
operate very poorly, increasing emissions, as well as cause potential
long-term damage and long-term emissions increases. We believe that in
most cases fuel pump labels warning that the use of E85 in non-flex
fuel vehicles is illegal, can damage the vehicle, and can void vehicle
manufacturer warranties may be a sufficient disincentive to mitigate
intentional misfueling. Non-FFVs and nonroad products were not designed
for operation on E85 and may experience serious emissions increases,
operability, and driveability issues, particularly with prolonged use
(e.g. accelerated catalyst deterioration, fuel system component
failures, etc.).
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\14\ FFVs are vehicles or engines that are designed to run on
gasoline or gasoline-ethanol blends up to E85.
---------------------------------------------------------------------------
Such an E85 label would have similar appearance and location
requirements to the E15 label (discussed above) and the required label
language would follow a similar form to that of the E15 label. The
Agency seeks comment on the following E85 label language:
E85
(Contains up to 85% Ethanol)
For use in flex-fuel vehicles only.
WARNING
Federal law prohibits use in all other vehicles and engines.
May damage these vehicles and engines.
We request comment on whether the proposed labeling requirements would
provide sufficient warning to consumers not to refuel non-flex-fuel
vehicles with E85. Additionally the Agency seeks comment on the label
language for the E85 label.
The Agency also seeks comment on requiring labels for so-called
blender pumps. Blender pumps allow station owners to blend E85 and
gasoline in their storage tanks to create intermediate gasoline-ethanol
blends. This allows either station owners or potentially FFV drivers to
choose which gasoline-ethanol blend they prefer, based on operating
characteristics and price. During both the RFS2 and E15 waiver request
comment periods, the Agency received several comments asking us to
require labeling provisions for blender pumps to address misfueling.
Similar to E85, consumers may misfuel their non-FFVs and engines on
ethanol blends greater than 10% (greater than 15% for 2007 and newer
light-duty motor vehicles) due to possible price differences between
intermediate ethanol blends and gasoline. Non-FFVs and nonroad products
were not designed for operation on such high levels of ethanol and may
experience serious emission, operability, and driveability issues,
particularly with prolonged use (e.g. accelerated catalyst
deterioration, fuel system component failures, etc.).
Such a blender pump label would have similar appearance and
location requirements to the E15 label (discussed above) and the
required label language would follow a similar form to that of the E15
label. The Agency seeks comment on the following two blender pump label
language options. The first option's language addresses a situation
where a vehicle operator can ``dial'' their own gasoline-ethanol blend
level.
E15-E85
(Contains between 15% and 85% ethanol)
For use in flex-fuel vehicles.
WARNING
Federal law prohibits use in all other vehicles and engines.
May damage these vehicles.
The second option's language is to provide for a specific blend of
higher than 15 vol% ethanol content within this range, in which case
the station owner would replace the option 1's language with the
specific value. The language for option 2 would be as follows:
EXX
(Contains up to XX% Ethanol)
For use in flex-fuel vehicles.
WARNING
Federal law prohibits use in all other vehicles and engines
May damage these vehicles and engines.
On this label, ``XX'' is the exact maximum ethanol content a fuel
dispensed from a particular blender
[[Page 68053]]
pump setting is expected to dispense that is greater than 15 vol%
ethanol.
The blender pump labels would not need to specify blends containing
between 10 and 15% ethanol because any such fuel pumps would be
required to display the E15 label. However, since a blender pump may
dispense several intermediate ethanol blends (e.g. E20, E30, E40,
etc.), the label should specify a range of ethanol content from E15
through E85. Therefore, under this second option the blender pump would
have multiple labels for each of the blends that the pump dispenses.
3. Stakeholder Labeling Suggestions
In anticipation of this proposal, EPA met with several stakeholders
to discuss the potential label language used for the E15 label
language. To date, the Agency has received label language suggestions
from Growth Energy.\15\ AllSAFE and the American Petroleum Institute
provided EPA with their public comments to the FTC labeling
proposal.\16\ Copies of these labeling recommendations may be viewed in
the docket.\17\ We have considered the suggestions in these comments
for our proposal, but nevertheless seek comment on whether and if so
how to modify our label proposals based on these and other suggestions.
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\15\ Buis, T. Letter to Karl Simon. 4 April 2010. See Docket ID
No. EPA-HQ-OAR-2010-0448.
\16\ See Docket ID No. EPA-HQ-OAR-2010-0448.
\17\ Federal Trade Commission, `` 335; FTC File No.
R811005; 16 CFR Part 306: The Federal Trade Commission Rule For
Automotive Fuel Ratings, Certification and Posting: Notice of
Proposed Rulemaking and Request for Comments.'' September 2010.
Available at http://www.ftc.gov/os/comments/fuelratingnprm/index.shtm.
---------------------------------------------------------------------------
4. FTC Labeling Proposal
On February 26, 2010, the Federal Trade Commission (FTC) issued a
proposed rulemaking that proposes explicit requirements for gasoline-
ethanol blends that contain more than 10 vol% ethanol and less than 70
vol% ethanol (``Mid-Level Ethanol blends'') (see 75 FR 12470). Since
the FTC labeling proposal did not contemplate the granting of a waiver
for E15, it would have to be modified to be consistent with our recent
E15 partial waiver decision. In addition, as discussed above, we
believe it is important that the label contain certain components and
language necessary to both inform and warn the consumer that are not
fully captured in the FTC labels.
Therefore, EPA is working with FTC to develop coordinated labeling
requirements and seeks comment on how best to achieve this outcome.
Preferably, one label would be developed that meets EPA and FTC
labeling requirements, since imposing separate labeling requirements
may confuse consumers and would ultimately limit the effectiveness of
labeling to mitigate misfueling. Requiring two separate labels would
also create issues concerning the placement of the E15 label and may
impose an unnecessary burden on retail stations. Finally, we also
believe that to ensure the effectiveness of all gasoline pump labels,
it is important that they be of similar type and format (i.e. those for
E10, E15, E85, and blender pumps).
5. Labeling Requirements and Liability for Misfueling
It is important to note that compliance with the labeling
requirements specified in this rule does not protect responsible
parties from liability for misfueling. Today's regulations not only
impose labeling requirements but also a prohibition of the sale or
offer for sale of E15 for use in unapproved engines, vehicles, and
equipment (see section III.G below). Compliance with the labeling
requirement does not ensure that the responsible parties have not made
prohibited sales. In addition, our regulations do not address issues of
common law or contract liability between private parties.
B. Product Transfer Document Requirements
Product transfer documents (PTDs) are customarily generated and
used in the course of business and are familiar to parties who transfer
or receive blendstocks, base gasoline for oxygenate blending and
oxygenated gasoline. In addition, EPA has historically put in place
certain requirements for PTDs for reformulated gasoline blends and
blendstocks to help ensure downstream compliance with our fuel
standards. The introduction of E15 into the marketplace results in the
need for additional information on the PTDs that accompany the transfer
of gasoline and the base gasoline/gasoline blendstocks used for
oxygenate blending, both for reformulated gasoline and conventional
gasoline. The type of additional information needed is different
upstream versus downstream of the point of ethanol addition. We believe
that the additions discussed below to existing PTDs are necessary to
minimize misfueling, to help ensure downstream compliance with our fuel
standards, and thereby to support the introduction of E15.
1. PTD Requirements Downstream of the Point of Ethanol Addition
Downstream of the point where ethanol blending takes place,
information on the maximum ethanol concentration in the ethanol blend
is needed to help ensure that fuel shipments are delivered into the
appropriate storage tanks at retail and fleet fueling facilities.\18\
Information on the maximum Reid Vapor Pressure (RVP) of E0, E10 and E15
blends is needed on PTDs to help ensure that the fuel is compliant with
the applicable summertime RVP requirements. The RVP reported on the PTD
for E10 and E15 blends could be based on the intended RVP that the
manufacturer of the blendstock for oxygenate blending designed for as
identified on the PTD for the blendstock.\19\ Therefore, RVP testing
after the addition of ethanol would not be necessary to provide the
information on RVP that would be required on the PTD.
---------------------------------------------------------------------------
\18\ Currently, ethanol blending typically takes place at the
terminal. Evaluations are underway which may facilitate the shipment
of ethanol-gasoline blends by pipeline to terminals. Hence, although
the proposed PTD requirements regarding maximum ethanol content
currently would typically apply to parties downstream of the
terminal, parties upstream of the terminal may need to include
information on maximum ethanol concentration on product PTDs in the
future.
\19\ This is dependent on the proper amount of ethanol being
added to the blendstock, and on the product being segregated from
all products with a different RVP.
---------------------------------------------------------------------------
We are proposing that the following statements would be included on
the PTDs for the various fuel blends:
For E0: ``E0: Contains no ethanol.
The RVP does not exceed [Fill in appropriate value]''
For E10: ``E10: Contains between 9 and 10 volume percent ethanol
The RVP does not exceed [Fill in appropriate value]''
For E15: ``E15: Contains up to 15 volume percent ethanol
The RVP does not exceed [Fill in appropriate value]''
For EXX: ``EXX--Contains up to XX% ethanol.
``EXX'' refers to fuels blends above E15 up to and including E85
and fuel blends below 9 volume percent ethanol. The maximum potential
ethanol content of the fuel would be required to be specified on the
PTD in the place of ``XX''.
We request comment on whether additional language on E10 PTDs is
needed to inform parties that a blend containing between 9 and 10
volume percent ethanol which benefits from the 1 psi RVP waiver may not
be commingled with an E0 or E15 blend.\20\ We request comment on
whether any other additional information should be
[[Page 68054]]
provided on the PTDs for ethanol fuel blends.
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\20\ Such as, ``Designed for the special RVP provisions for
ethanol blends. Do not blend with gasoline containing less than 9
vol% ethanol or E15.''
---------------------------------------------------------------------------
2. PTD Requirements Up to and Including the Point of Ethanol Addition
Upstream of the point where E10 and E15 blends are manufactured,
information is needed on the PTDs for base gasoline or gasoline
blendstock used for oxygenate blending (BOB) \21\ to facilitate ethanol
blender compliance with the applicable EPA summertime RVP
requirements.\22\ This information would need to include the maximum
potential RVP of the BOB and the maximum ethanol concentration that may
be added to the BOB.
---------------------------------------------------------------------------
\21\ For purposes of this discussion, the blendstock or base
gasoline (BOB) is typically referring to the fungible base gasoline
produced at a refinery for the specific intention of adding ethanol.
The fungible gasoline produced for this purpose is subject to all of
the 40 CFR parts 79 and 80 regulations applicable to gasoline.
However, under 40 CFR 80.101(d)(4), a refiner with direct control of
the ethanol addition to the actual gasoline produced by that refiner
may consider the final fuel including the ethanol when complying
with part 79 and 80 regulations.
\22\ See section IV of this preamble for a discussion of the RVP
requirements for E15 and E10.
---------------------------------------------------------------------------
To satisfy these needs, we are proposing that PTDs for BOBs for use
in the manufacture of ethanol blends that are subject to summertime RVP
controls include the maximum RVP of the BOB. We are also proposing that
such PTDs in non-RFG areas indicate what ethanol concentration is
suitable to be blended with the BOB. The RFG requirements found at 40
CFR 80.77 already contain requirements that PTDs indicate what
oxygenate and oxygenate amount are suitable to be blended with the
reformulated blendstocks for oxygenate blending (RBOBs).
We are proposing that the following statements would be included on
the PTDs for BOBs in non-RFG areas:
``Suitable for blending with ethanol at a concentration up to 15
volume % ethanol'' or, in the case of a BOB designed to take
advantage of the 1psi allowance for E10 in 40 CFR 80.27(d)(2):
``Designed for the special RVP provisions for ethanol blends
that contain between 9 and 10 volume % ethanol''
``The RVP of this blendstock/base gasoline for oxygenate
blending does not exceed [Fill in appropriate value]''
As we are proposing and seeking comment on blendstock commingling
prohibitions in addition to those already in place for RFG (see section
III.D.) we also request comment on whether additional information is
needed on the PTDs for BOBs to help ensure that these blending
restrictions are observed. We request comment on whether the following
language should be added to the PTD for a BOB designed to take
advantage of the 1psi allowance for E10 in order to help prevent
downstream violations of the RVP standards: ``The use of this gasoline
to manufacture a gasoline-ethanol blend with less than 9 vol% ethanol
or E15 may cause an RVP violation.'' We request comment on whether any
additional information should be provided on the PTDs for BOBs.
3. General PTD Requirements
We are proposing that on each occasion when any person transfers
custody and/or ownership of any gasoline or base gasoline/gasoline
blendstock used for oxygenate blending, the transferor would be
required to provide the transferee with an appropriate PTD identifying
the gasoline/blendstock/base gasoline and its characteristics (as
defined below), as well as such general information as the names and
addresses of the transferor and transferee, the volume of product being
transferred, the location of the product on the date of transfer, and
specific information described in this preamble. We are proposing that
all parties would be required to retain PTDs for a period of not less
than five years and would be required to provide them to EPA upon
request. Five years is the normal record retention requirement for 40
CFR part 80 fuels programs, such as the reformulated gasoline (RFG)
program.
We are proposing that PTDs would be required to be used by all
parties in the distribution chain down to the point where the product
is sold, dispensed, or otherwise made available to the ultimate
consumer. We are proposing that product codes could be used to convey
the information required as long as the codes are clearly understood by
each transferee. However, we believe that product codes alone would not
be sufficient for transfers to truck carriers, retailers, or wholesale-
purchaser consumers. Hence, we are proposing that the full proposed
text would need to be included on the PTD for transfers to truck
carriers, retailers, or wholesale-purchaser consumers.
Parties would be afforded significant freedom with regard to the
form PTDs take under this proposal, although we are proposing that the
PTDs would be required to travel in some manner (paper or
electronically) with the volume of blendstock or fuel being
transferred. The addition of the proposed information to PTDs would not
require any additional testing of fuel composition. Adoption of these
proposed changes would add a one-time burden to program and implement
new product codes and statements, as well as a continuing small burden
associated with using product codes and statements on PTDs. Given this
and the fact that PTDs are used in the course of business, we believe
that the proposed new PTD requirements could be readily accommodated by
industry. The increased burden which would result from the adoption of
these proposed PTD requirements is detailed in section IX.B. of this
preamble.
C. Retail Fuel Dispenser Label and Fuel Ethanol Content Survey
To help mitigate the potential for misfueling, oversight of fuel
retailer compliance with the proposed E15 labeling requirements and of
the actual ethanol content of the dispensed fuel in comparison to the
information on the label is needed. To provide adequate oversight, EPA
conditioned the E15 partial waiver on a requirement that ethanol
blenders, ethanol producers, ethanol importers, petroleum refiners, and
petroleum importers participate in a survey of compliance at fuel
retail facilities.\23\ The E15 partial waiver decision specified that
an EPA-approved survey plan is to be in place prior to introduction of
E15 to the marketplace and that the results of the survey must be
provided to EPA for use in its enforcement and compliance assurance
activities.
---------------------------------------------------------------------------
\23\ See Partial Grant and Partial Denial of Clean Air Act
Waiver Application Submitted by Growth Energy to Increase the
Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the
Administrator elsewhere in this issue of the Federal Register.
---------------------------------------------------------------------------
Today's notice contains our proposal on requiring a survey as part
of a misfueling mitigation program. This proposal covers how the
required survey should be formulated and conducted. As discussed in
section III.G., we are proposing that the survey could be used to meet
the periodic sampling and testing elements of a regulated party's
affirmative defenses to presumptive liability in cases where instances
of noncompliance with the applicable maximum ethanol content
specification are discovered. Should EPA finalize the additional
labeling requirements that we requested comment on in section III.A.2.
of this proposal, evaluation of retailer compliance with these labeling
requirements would also be included in the survey. Regardless of
whether we finalize labeling provisions, testing on the ethanol content
of the fuel delivered from all non-FFV dispensers would need to be
included in the survey to help mitigate misfueling.
The survey requirements that we are proposing are based on an
existing
[[Page 68055]]
survey of compliance with the EPA labeling requirements for retail
diesel fuel dispensers, and with the maximum allowable sulfur content
of the diesel fuel delivered from these dispensers under EPA's ULSD
program. EPA recently codified the requirements for this diesel fuel
survey in a direct final rule that became effective on July 12,
2010.\24\ The reformulated gasoline (RFG) program also utilizes a
compliance survey program to ensure seasonal RFG area requirements are
met for predicted emissions performance based on average area fuel
parameters. Based on the ULSD and RFG programs, we are proposing two
options for obligated parties to satisfy the survey requirement. Survey
Option 1 allows individual obligated parties to elect to individually
survey gasoline and retail stations anywhere their fuel might be sold.
Survey Option 2 allows obligated parties to form a consortium that
contracts an independent survey association to conduct a national
ethanol content and E15 labeling survey.
---------------------------------------------------------------------------
\24\ Alternative Affirmative Defense Requirements for Ultra-Low
Sulfur Diesel and Gasoline Benzene Technical Amendment, 75 FR 26121,
May 11, 2010.
---------------------------------------------------------------------------
For Survey Option 1, we propose that obligated parties choosing the
individual survey option must survey labels and ethanol content at
retail stations wherever their gasoline may be distributed if it may be
blended as E15. Prior to conducting such a survey a survey plan would
have to be approved by EPA. We seek comment on all aspects related to
Survey Option 1.
For Survey Option 2, we propose that the survey would consist of a
nationwide program of sampling and testing designed to provide
oversight of all retail stations that sell gasoline. Details of the
proposed survey requirements are similar to those included in the ULSD
and RFG programs. We propose that the survey organization would be
required to submit survey plans on an annual basis that would be
applicable from January 1 through December 31. We propose that EPA
would review the first survey plan within two months of its receipt. We
propose that the survey organization would be required to submit
subsequent survey plans to EPA for approval by November 1 of the year
proceeding the calendar year in which the sampling and testing program
would be implemented. The Agency also proposes that proof that the
amount of money necessary has been paid to the surveyor is sent to EPA
no later than December 15 of the year proceeding the calendar year in
which the sampling and testing program would be implemented. For the
first annual survey, we propose that proof of payment be submitted to
the Agency no later than one month before the sampling and testing
program would be implemented. We seek comment on the deadlines for both
the survey plan and proof of payment for the survey for the first
survey and on subsequent surveys.
We propose that the sampling and testing program would ensure
comprehensive geographic coverage nationally representative of gasoline
sold at retail outlets by providing proportionate coverage of gasoline
across three sampling strata. These three strata generally refer to:
(1) Densely populated areas, which include Metropolitan Statistical
Areas and the reformulated gasoline control areas; (2) transportation
corridors, which are based on interstate highways outside the densely
populated areas;\25\ and (3) rural areas, which include all areas not
included in the previous two strata. These areas would be subdivided
into clusters, generally based on groupings of counties. The specific
criteria used for selecting sampling areas for each survey plan would
be subject to EPA approval. We seek comment on all aspects of the
proposed elements that a survey plan should include.
---------------------------------------------------------------------------
\25\ Transportation corridors would include areas immediately
adjacent to the highways themselves and a swath within several miles
on each side of the highway. For any given survey, a certain length
of any specific highway might be deemed appropriate as a sampling
unit or cluster.
---------------------------------------------------------------------------
Comment is specifically requested on the criteria which should be
used to determine the minimum sample size for the survey. The sampling
and testing program would need to both accurately estimate the
proportion of retail stations that are non-compliant with E15 labeling
and ethanol content requirements and provide a credible deterrent to
deliberate or inadvertent violations of downstream enforcement
standards. For the ULSD survey program, we require a minimum of 5,250
samples annually. For a national survey looking at all gasoline retail
stations, we believe the minimum number of samples needs to be greater
because there are more than three times the number of retail stations
that sell gasoline compared with stations that sell diesel. We propose
that the survey take a minimum of 7,500 samples spread across four
quarterly surveys. We also propose a sample size equation similar to
the one used to determine sample sizes for the ULSD survey program (see
equation in the proposed regulations at 80.1502(b)(4)(v)(A)). This
equation bases sample size on the proportion of retail stations that
are non-compliant. We seek comment on both the minimum number of
samples and the method for determining samples sizes.
Since initially E15 may be introduced into commerce in a limited
geographical area, it may not be necessary to carry out the full survey
or to carry it out nationwide. One way to potentially resolve this
issue would be to limit the areas required to be surveyed to areas that
are known to have E15 being distributed. Unfortunately, there are no
reliable real-time data that show when E15 is first introduced into an
area and it could take awhile for the proposed annual survey program to
incorporate these new geographic areas. Additionally, the borders of
such areas are difficult to define and constantly shift in response to
market forces. This approach also undermines one of the stated purposes
of the survey program, namely that the survey program helps deter
either intentional or unintentional violations by increasing the
likelihood of violators being randomly caught. If EPA allows only
certain areas to be surveyed while excluding others, some parties may
manufacturer, blend, or distribute E15 without properly identifying the
fuel as E15 or properly labeling the fuel dispenser as dispensing E15.
By the time the survey program caught up, motor vehicles and nonroad
products not approved for E15 use may have been misfueled for a long
time. On the other hand, if there were ways to properly identify areas
that are distributing E15 real time, then limiting the survey to only
those areas could considerably reduce the cost of compliance with the
proposed survey requirements. The Agency seeks comment on ways to
possibly limit surveys to only those areas that have E15 being
introduced into commerce.
Another option to limit survey requirements would be to require a
national survey, but have a lower minimum sample size that gradually
increases over time. Since the proposed approach for determining sample
sizes above 7,500 discussed above is based on the proportion of retail
stations that are noncompliant with ethanol content and/or E15 labeling
requirements, if there is very little E15 being introduced into the
marketplace, the proportion of noncompliant retail stations would be
small. In this case, 7,500 samples may be substantially higher than the
number of samples required by the proposed method for determining
sample sizes. Since this is most likely to occur at the beginning of
the survey program, the survey program could gradually increase the
annual minimum sample
[[Page 68056]]
size to reduce the burden to industry. For example, the Agency may only
require a minimum of 2,000 samples the first full survey year (2012),
4,000 samples in 2013, 6,000 samples in 2014, and 7,500 samples in
2015. We seek comment on this gradual minimum sample size approach and
all other issues related to determining the minimum number of samples
for a national ethanol content and E15 labeling survey.
We also are proposing that the independent survey association would
ship fuel samples on the same day that the sample was collected and
that the sample be analyzed for ethanol content within 24 hours from
the time the samples were acquired. Although having such a short
delivery time for fuel samples to be analyzed may increase costs, this
time period is both consistent with other fuel survey programs and
would allow ethanol content and E15 labeling violations found by the
survey to be corrected quickly to mitigate misfueling. We seek comment
on the proposed amount of time allowed for samples to be shipped for
the analysis of ethanol content.
For both survey options, we require that survey plans would include
a methodology for determining when the survey samples will be
collected, the locations of the retail outlets where the samples will
be collected, the number of samples to be included in the survey,
procedures that would prevent the advance notification of retail
stations, and how individual retail stations will be determined for
sampling. We propose that samples at retail stations be taken from all
gasoline dispensers and have the samples tested for ethanol content and
that retail stations be selected randomly with the probability of
selection proportionate to the volume of gasoline sold at the retail
outlet. We also propose that ethanol content be measured in accordance
with a test method that meets the requirement of 40 CFR 80.46(g). We
seek comment on these requirements for survey plans and whether any
additional requirements are necessary. We also seek comment on all
matters related to the national ethanol content and E15 labeling survey
proposed today.
D. Program Outreach
Effective outreach to consumers and stakeholders is often essential
to the successful implementation of environmental protection programs.
To implement the RFS program, for example, EPA provides training
seminars for stakeholders and manages dedicated telephone and e-mail
support lines. Various industry representatives and organizations
provided program information and coordination to their members and
customers as well as to facilitate the introduction of new program
requirements this past July.
In the case of E15, outreach to consumers and stakeholders may be
critical to help mitigate misfueling incidents that can result in
increased emissions or vehicle or engine damage. The potential for E15
misfueling incidents exists because consumers tend to choose the lowest
priced fuel, and E15 may cost less than E10 since ethanol currently
tends to be less expensive than gasoline.
A recent example of successful outreach to consumers and
stakeholders is the coordinated work done in support of the ULSD
program. ULSD was a new fuel with the possibility of consumer
misfueling that could result in engine damage. With ULSD, the fuel
industry trade association API took the lead in working with
stakeholders to establish the Clean Diesel Fuel Alliance (CDFA), a
collaboration of public and private organizations designed to ensure a
smooth program transition by providing comprehensive information and
technical coordination. The organizations represented in the CDFA
include engine manufacturers, fuel retailers, trucking fleets, DOE and
EPA. CDFA efforts to educate ULSD users include developing technical
guidance and educational information, including a Web site (http://www.clean-diesel.org), as well as serving as a central point of contact
to address ULSD-related questions.
The CDFA outreach model could prove beneficial in this case. EPA
anticipates that all parties that may be involved in bringing higher
gasoline-ethanol blends to market would participate in a coordinated
industry-led consumer education and outreach effort. In the context of
this program, potential key participants include ethanol producers,
fuel manufacturers, automobile, engine and equipment manufacturers,
States, non-governmental organizations, parties in the fuel
distribution system, EPA, DOE, and USDA. Potential education and
outreach activities a public/private group could undertake include
serving as a central clearinghouse for technical questions about E15
and its use, promoting best practices to educate consumers or mitigate
misfueling instances, and developing educational materials and making
them available to the public.
Some stakeholders have also suggested that a Web site be created to
inform consumers of the potential impacts of E15 on older motor
vehicles, heavy-duty gasoline engines and vehicles, motorcycles, and
nonroad products. Stakeholders have further suggested that, if a unique
misfueling Web site is created, then EPA should require the Web site
address to be displayed on the E15 label. EPA seeks comment on the
appropriateness of a unique misfueling Web site and of including such a
Web site address on the E15 label.
E. What other means of mitigating misfueling were considered?
EPA believes that the proposed misfueling mitigation approach will
effectively and sufficiently mitigate misfueling based on our past
experience. The Agency employed a similar and relevant misfueling
mitigation program when ULSD was introduced in 2006. Retail stations
and wholesale purchaser-consumers were required to have fuel dispenser
labels indicating whether the diesel being dispensed was 500 ppm (low
sulfur diesel or LSD) or 15 ppm (ULSD). MY2007 and newer on-highway
diesel vehicles and engines were required to use ULSD and prohibited
from using LSD. At the beginning of the ULSD program, we were aware of
several instances where consumers, after checking the labels, had
difficulty finding ULSD in some areas. Consumers were informed that
misfueling would result in significant engine damage. We are not aware
of any significant instances when misfueling occurred during this
labeling program. This indicates that EPA outreach and information
provided by the engine manufacturers, Clean Diesel Fuel Alliance, and
other stakeholders, was effective in educating consumers and mitigating
misfueling. Additionally, we feel that product transfer document
requirements and the ULSD survey program were vital in implementing and
enforcing this fuel transition. Based on the success of the ULSD
program, we believe that similar requirements for E15 will be
sufficient and successful.
Some have argued that the ULSD program example is not applicable in
this case since the MY2007 and newer on-highway diesel vehicles and
engines were at risk from misfueling, whereas for E15, it is primarily
older motor vehicles (i.e., MY2000 and older motor vehicles) that are
at risk. While EPA believes that the potential for engine repair costs
applies in both cases, the Agency also believes that similar misfueling
mitigation measures can be effective for E15 as well. Coupled with an
effective outreach and public education program, the proposed
mitigation measures should deter
[[Page 68057]]
misfueling and encourage consumers to pay close attention to the E15
labels. Some have also argued that the ULSD program is not applicable
because the ULSD program focused primarily on commercial truck drivers,
who may be more cognizant of fuel choices due to the potential impact
on their commercial investments, than the general public. We believe
that consumers are also concerned about their private vehicles, and
that the potential costs associated with misfueling (discussed below in
section III.F) will have just as much of an impact in informing
consumer fuel choices. As long as fuel dispensers are properly labeled
and consumers are adequately informed of the associated risks of
misfueling nonroad products and older motor vehicles on E15, we believe
the proposed misfueling mitigation program will be effective.
While EPA believes that the misfueling mitigation provisions
included in today's proposal will address potential misfueling
concerns, we recognize that these provisions are not the only potential
means for addressing misfueling concerns. EPA has received many
suggestions for mitigating misfueling. For example, API conducted a
scoping study, ``Evaluation of Measures to Mitigate Misfueling of Mid-
to High-Ethanol Blend Fuels at Fuel Dispensing Facilities,'' that
includes many of these suggestions. That study may be found in the
docket.\26\
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\26\ American Petroleum Institute, ``Evaluation of Measures to
Mitigate Misfueling of Mid- to High-Ethanol Blend Fuels at Fuel
Dispensing Facilities,'' EPA Docket EPA-HQ-OAR-2010-0448.
---------------------------------------------------------------------------
One suggestion in API's study was to have full service attendants
at gas stations that ensure E15 is only used in appropriate motor
vehicles. While such a measure may be effective, its overall
effectiveness is unknown and it would be a large burden on service
stations to employ service attendants for this purpose. This option
would come at an extremely large cost, and there would need to be
significant training of new employees. API estimates the average annual
cost per service station at $67,500 and the annual nationwide cost at
$10.6 billion. Another suggestion was to have separate islands at
service stations, with one for blends at E10 and below, and one for
mid- and high- gasoline-ethanol blends. It was noted that this measure
would also likely cause congestion at the pumps, be inconvenient for
the consumer, reduce the number of pumps available for higher-demand
fuels, and not prevent intentional misfueling. API estimates the cost
of separate islands at $700 per station and $40 million nationwide,
though they did not cost out the consumer implications.
Another option discussed is a measure in which keypads or
touchscreens would be made available at each pump to allow consumers to
input data about their motor vehicle or simply answer ``yes'' or ``no''
to the question of whether their motor vehicle is an FFV or non-FFV. If
the motor vehicle is appropriate for the fuel, then the pump would
allow fueling. If existing dispensers do not already have display
screens, this strategy would require retail stations to install keypads
or touchscreens at an approximate cost of $5,000 for dispensers that
may be retrofitted, with the cost prohibitive for dispensers that may
not be retrofitted. There may also be an additional cost per station of
$10,000--$20,000 to install a central controller to accept motor
vehicle information. Such a strategy may cause some congestion at the
pumps. Intentional misfueling would not be prevented through such
measure.
Also discussed in the report was a strategy in which retail
stations would have a video or audio presentation play when a mid- to
high- gasoline-ethanol blend pump is lifted from the dispenser. The
presentation would provide information to the consumer about E10+,
which motor vehicles may fuel with it, and why other motor vehicles
should not. Optionally, the consumer could be required to confirm
fueling with E10+ at the end of the presentation. The cost of such an
alternative for those stations without display screens, is estimated to
be $5,000; if the existing dispenser could not be retrofitted with a
display screen, there would be additional and considerable costs
incurred for replacing a dispenser. Costs for this option could be as
high as $20,000 per station.
API also suggested that a different colored hand warmer or a
different type of nozzle grip for fuel pumps with E15+ may help alert
consumers to the new type of fuel without a large burden on retail
stations. Hand nozzles for E15+ would be a different color than for
other gasoline types, or would have a different texture from other hand
grips. To be effective, one color or one type of grip should be used
for E15+ on a national basis. Consumers would know by the color and/or
texture that those pumps were for E15+. Some concerns about this option
are that it would not be possible to distinguish nozzles that dispense
both E10 and E15, some consumers may not notice the warmer or grip, and
this would not prevent intentional misfueling. However, API believes
that nozzle grips with different textures would be noticeable to most
consumers, even those who do not read the pump labels. Also, hand
nozzle grips are easy to install and replace as needed. API has
estimated the cost at $5 to $11 per nozzle with a national cost of
$800,000 to $1.6 million.
While many of the strategies discussed in the API study may be
effective in communicating with the consumer about E15, EPA believes
that the combination of pump labels, regulatory prohibition on
misfueling, PTDs, a survey, and consumer outreach will adequately
mitigate misfueling by consumers. The labels on the fuel pumps will
notify consumers that the pump is for E15 and only certain MY motor
vehicles should use that fuel. Consumer outreach will give the consumer
more in-depth information, such as why older MY motor vehicles, heavy-
duty gasoline engines and vehicles, motorcycles, and nonroad products
should not fuel with E15 and what damage may occur from misfueling. The
PTDs will help ensure that E15 is identified as such through the
distribution chain, which will help prevent inadvertent mislabeling of
fuel. Finally, a survey will identify where mislabeling (or no
labeling) of E15 has occurred so that appropriate labels are used.
Other options that have been suggested may be too expensive,
difficult to implement, and/or otherwise not likely acceptable to
consumers. As such, EPA does not deem it appropriate to include these
options in today's proposal. We seek comment on any other measures not
proposed in the rule that the regulated industries and other interested
parties feel may be necessary to mitigate misfueling. We seek comment
on any other cost-effective mitigation measures that may be
appropriate. If EPA considers requiring any other mitigation measures
that are suggested by commenters in the final rule, EPA will conduct
appropriate analyses of such measures, including the impacts on small
businesses, before deciding whether to include such mitigation measures
in the final rule.
F. Cost of Compliance
The cost of compliance with the provisions being proposed today
include the periodic capital costs of labeling fuel dispensers, the
onetime costs of the PTD requirements, and the annual cost of the
survey requirements. The cost of the proposed labeling requirements is
estimated at $1.04 million per year on an annualized basis. The cost of
the proposed PTD
[[Page 68058]]
requirements is estimated at $0.56 million per year on an annualized
basis. The cost of the proposed survey requirements is estimated at
$2.05 million per year. The total cost of all of the proposed
requirements is estimated at $3.65 million per year. These estimated
costs are detailed in the following sections. As discussed in section
III.F.4, we believe that these costs will be more than offset by the
avoided costs of repairing engines/vehicles that could otherwise have
been damaged by misfueling in the absence of the implementation of the
proposed requirements.
1. Labeling Costs
Our estimate of the cost of the proposed E15 fuel dispenser
labeling requirement includes the cost to the fuel retailer of
purchasing the label, the administrative cost to ensure that all
gasoline dispensers are labeled appropriately, and the labor cost to
replace fuel dispenser labels. Based on our past experience with
labeling programs, the RFS2 NPRM and industry input, the cost of an E15
label is estimated to be $5.00 per label.\27\ There are approximately
162,000 retail gas stations in the U.S. according to National Petroleum
News.\28\ The RFS2 Final RIA estimates that there is an average of 7.7
gasoline refueling positions per retail station.\29\ Thus, for a retail
facility that has 8 refueling positions, the total cost if all of the
dispenser labels are replaced would be $40.00. A number of fuel
retailers are small businesses. However, we believe that the minor cost
of label replacement would not represent a significant additional
burden to any fuel retailer. Specifically, making the conservative
assumption that there will be the maximum number of pumps (8) even for
small stations and assuming an 8 year life before labels need to be
replaced, the annualized cost to a service station is $5 per year. The
amount of gasoline sold at a small service station is estimated to be
approximately 60,000 gallons/month.\30\ Assuming an average cost of
gasoline at $2.31/gal (per the EIA 2009 national average regular grade
gasoline price) the annual revenue for a small service station from its
gasoline sales is approximately $1.7 million.\31\ Thus, the cost of the
labels represents less than 0.001% of the total annual revenue of a
small gas station from its gasoline sales.\32\
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\27\ RFS2 NPRM RIA page 581 (EPA-420-D-09-001; May, 2009);
available at: http://www.epa.gov/otaq/renewablefuels/420d09001.pdf).
\28\ National Petroleum News, ``2008 marketfacts'', states that
there were 161,768 gasoline retail facilities in 2008 http://www.npnweb.com.
\29\ RFS2 Final RIA, page 232 (EPA-420-R-10-006; February 2010);
available at: http://www.epa.gov/otaq/renewablefuels/420r10006.pdf).
\30\ The National Association of Convenience Stores (NACS) 2006
State of the Industry Report states that for motor fuel retail
stations that sell less than 75,000 gallons of all motor fuels, the
average monthly throughput is 57,778 gallons.
\31\ Energy Information Administration (EIA) annual national
average gasoline price data http://www.eia.gov/dnav/pet/pet_pri_gnd_dcus_nus_a.htm.
\32\ See section IX.D. of this notice for additional discussion
of potential impacts from today's proposal on small businesses.
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Although we are requesting comment on whether all gasoline fuel
dispensers should be labeled,\33\ today's notice only includes proposed
labeling requirements for E15 fuel dispensers. Nevertheless, we are
assuming all gasoline refueling positions would be relabeled for the
purposes of estimating the costs of this proposal. This approach
provides a conservatively high estimate of costs if only the proposed
E15 labeling requirements are finalized. By multiplying the average
number of gasoline refueling positions per retail facility, by the
number of fuel retailers, and the cost per label, we arrived at an
estimated cost of $6.23 million to replace all of the labels at
gasoline refueling positions at all fuel retailers in the U.S. We
assumed an 8 year label life before it needs to be replaced. Amortizing
the periodic labeling costs using a 7% cost of capital, we estimate the
annualized cost to comply with the proposed labeling provisions to be
approximately $1.04 million per year. We request comments on these
estimated costs.
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\33\ Including E0, E10, E15, EXX, and E85 fuel dispensers. See
section III.A. of this notice.
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2. PTD Costs
Section IX.B. of today's preamble contains a discussion of the
costs of the PTD requirements proposed in today's notice.\34\ There
would be a one-time cost of $5.1 million to regulated parties to modify
the formatting of their existing PTDs to accommodate the new
information which would be required as a result of the implementation
of today's proposal. After the one-time modification of PTD formatting
is complete, we believe that there would be no significant additional
costs associated with communicating the additional information that
would be required by today's proposal to downstream parties in the
distribution system (either in electronic or paper form). By amortizing
the one-time reformatting costs over a period of 15 years at a 7% cost
of capital, we arrive at an annualized cost of $560,000 for the
proposed PTD requirements. We request comment on these estimated costs.
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\34\ Section III.B. contains a discussion of the proposed PTD
requirements.
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3. Survey Costs
The estimated costs of the proposed ethanol content and labeling
survey are based on experience with the existing RFG and ULSD surveys
and discussions with industry. The RFG survey includes all of the
elements required in the proposed nationwide survey except the survey
of compliance with the proposed labeling requirements. We estimate that
the cost of adding the proposed survey of compliance with the proposed
labeling requirements to the existing RFG survey at $50,000 per year.
The cost to implement all of the proposed survey provisions for
conventional gasoline is estimated at $2 million per year. Thus, the
total cost of the proposed survey requirements is estimated to be $2.05
million per year.\35\ We request comments on this estimate.
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\35\ See section III.C. for a discussion of the proposed survey
provisions.
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4. Avoided Motor Vehicle and Nonroad Product Repair Costs
We believe that proposed labeling and associated survey and PTD
provisions will be an effective tool at mitigating unintentional
misfueling based on our experience with other labeling provisions (such
as ULSD). The resulting prevention of misfueling will not only minimize
the potential emission increases that could result (as discussed in
section VI.I.), but also avoid potentially costly highway motor
vehicle, heavy-duty gasoline engines and vehicles, motorcycles, and
nonroad product repairs that would be anticipated to far exceed the
cost of the labels. For example, based on a poll of automobile repair
facilities, fuel pump and catalyst replacements average $427 and
$1,250, respectively. Similarly, for nonroad equipment, the cost for a
fuel line repair of handheld equipment (e.g. trimmers, chainsaws) or
non-handheld equipment (e.g. lawnmowers, generators) could cost $100-
$400 (based on information received from repair facilities in Ann
Arbor, Michigan and vicinity) and replacing this same equipment can
range from $100 (consumer handheld) to $5,000 (commercial grade garden
tractor) should the engine fail.\36\ While there are no data to
estimate the frequency at which these repairs or other potential
complications (discussed in section VI) associated with misfueling on
E15 might
[[Page 68059]]
occur, even if these potential complications were avoided on a tiny
fraction of MY2000 and older motor vehicles and nonroad products as a
result of the regulations (as opposed to actions taken independently by
industry in response to conditions on the partial waiver), the savings
would still far exceed the costs of compliance. We request comment on
this assessment.
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\36\ While this analysis is focused on small SI engines, note
that other nonroad equipment/vehicle categories can incur higher
expenses due to the higher complexity of the equipment/vehicle
compared to small SI engines.
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G. Compliance and Enforcement
1. What are the prohibited acts?
There is a long-standing prohibition, under CAA section 211(f)(1),
that fuel manufacturers may not introduce gasoline-ethanol blends
containing greater than 10 vol% ethanol into commerce for use in non-
flex-fuel vehicles. The partial waiver modifies this prohibition so
that gasoline-ethanol blends containing up to 15 vol% ethanol may
legally be introduced into commerce by fuel manufacturers for use in
MY2007 and later light-duty motor vehicles. The waiver does not apply
to any MY heavy-duty gasoline engine or vehicle, motorcycle, or nonroad
product.
We are proposing that all parties would be prohibited from selling,
introducing into commerce or causing or allowing the sale or
introduction into commerce of gasoline that has an ethanol content
above 10 vol% ethanol into MY 2000 and older light-duty motor vehicles,
any heavy-duty gasoline engine or vehicle, any motorcycle, and any
nonroad product. We are also proposing that fuel distributors who
transport or store a gasoline-ethanol blend, base gasoline or
blendstock for ethanol blending would be prohibited from increasing the
ethanol content to exceed the value noted on the PTD.\37\ Since the
Agency is deferring a decision for MY2001-2006 motor vehicles, we are
not proposing a prohibition for fuel used in these motor vehicles at
this time. DOE testing of MY2001-2006 light-duty motor vehicles is
ongoing and EPA expects to make a waiver determination for these
vehicles shortly after the results of the DOE testing are available. If
EPA does not grant an E15 waiver for MY2001-2006 light-duty motor
vehicles, then we would expect to include the same prohibitions for
these MY motor vehicles in the final rulemaking. Even though we are not
proposing an actual prohibition for motor vehicles MY2001-2006, it is
still unlawful for fuel manufacturers to introduce E15 into commerce
for use in these motor vehicles unless we grant an E15 waiver for these
motor vehicles.
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\37\ A violation of this prohibition could cause or contribute
to vehicle misfueling downstream.
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In addition to this general misfueling prohibition, there are
several other prohibited acts that we are proposing in conjunction with
the regulatory provisions being proposed today. We are proposing that
retailers and wholesale purchaser consumers would be prohibited from
dispensing E15 unless they comply with the proposed dispenser labeling
requirements in section III.A. of today's preamble. We are proposing
that ethanol blenders would be prohibited from introducing E15 into
commerce without complying with the proposed ethanol content survey
requirements in section III.C. of today's preamble.
In addition, there are several RVP related prohibitions that exist
today that may need to be modified in light of E15. There is an
existing prohibition with respect to exceeding applicable summertime
RVP requirements.\38\ We are proposing to prohibit the commingling of
an E10 gasoline-ethanol blend with either E0 or E15 due to potential
concerns about causing a violation of summertime RVP requirements
unless the E10 blend had not taken advantage of the 1 psi RVP waiver.
For the same reasons, prohibitions on the commingling of BOBs is
necessary. Therefore we are proposing certain prohibitions against
commingling conventional gasoline BOBs similar to the prohibitions for
reformulated blendstocks for oxygenate blending (RBOBs) in 40 CFR 80.78
under the RFG program. Specifically, we are proposing to prohibit
commingling an E10 BOB (produced to take advantage of the 1 psi RVP
waiver) with an E15 BOB unless the resulting mixture is designated as
an E10 BOB. We request comment on whether other modifications to these
existing RVP related regulatory requirements are needed as a result of
the introduction of E15.
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\38\ See 40 CFR 80.27.
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2. What are the proposed liability and penalty provisions for
noncompliance?
Today's proposed rule contains prohibition and liability provisions
that are similar to those of the other fuels programs in 40 CFR Part
80.\39\ Under the proposed regulation, regulated parties would be
liable for committing certain prohibited acts, such as selling or
distributing gasoline-ethanol blends with an ethanol content that
exceeds the maximum for the intended end-use category of vehicles/
engines, or causing/contributing to others committing prohibited acts.
In addition, parties would be liable for a failure to meet certain
affirmative requirements or causing others to fail to meet their
affirmative requirements. All parties in the fuel distribution system
would be liable for a failure to fulfill the recordkeeping and PTD
requirements.
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\39\ See section 80.5 (penalties for fuels violations); section
80.23 (liability for lead violations); section 80.28 (liability for
volatility violations); section 80.30 (liability for diesel
violations); section 80.79 (liability for violation of RFG
prohibited acts); section 80.80 (penalties for RFG/CG violations);
section 80.395 (liability for gasoline sulfur violations); section
80.405 (penalties for gasoline sulfur regulations).
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a. Presumptive Liability
All EPA fuels programs include a presumptive liability scheme for
violations of prohibited acts. Under this approach, liability is
imposed on two types of parties: (1) The party in the fuel distribution
system that controls the facility where the violation was found or has
occurred; and (2) those parties, typically upstream in the fuel
distribution system from the initially listed party (such as any
distributor of the fuel), whose prohibited activities could have caused
the program nonconformity to exist.\40\ This presumptive liability
scheme has worked well in enabling us to enforce our fuels programs
since it creates comprehensive liability for essentially all the
potentially responsible parties. The presumptions of liability may be
rebutted by establishing an affirmative defense.
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\40\ An additional type of liability, vicarious liability, is
also imposed on branded refiners under these fuels programs.
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To clarify the inclusive nature of these presumptive liability
schemes, today's proposed rule would explicitly include as prohibitions
causing another person to commit a prohibited act and causing the
presence of a non-conforming gasoline-ethanol blend (such as a blend
designated as containing less than 15 vol% ethanol which actually
contains a greater concentration of ethanol) to be in the distribution
system. This is consistent with the provisions and implementation of
other fuels programs.
Today's proposed rule, therefore, provides that most parties
involved in the chain of distribution would be subject to a presumption
of liability for committing prohibited actions and causing violations
by other parties. For example, an ethanol blender could be held
presumptively liable for causing a gasoline-ethanol blend that exceeds
the maximum ethanol content stated on the product's PTD to be present
in the distribution system unless the blender provides an affirmative
defense to
[[Page 68060]]
demonstrate that it did not cause the exceedance. An ethanol blender
could cause such an exceedance by adding too much ethanol to a blend or
making an error on the PTD that they prepare. An ethanol manufacturer
could be held presumptively liability for causing an exceedance of the
maximum ethanol content requirements unless it could demonstrate that
the ethanol it produced could not have caused the downstream
violation.\41\ Like other fuels regulations, a refiner also would be
subject to a presumption of vicarious liability for violations by any
downstream facility that displays the refiner's brand name, based on
the refiner's ability to exercise control at these facilities.
Carriers, however, would be liable only for violations arising from
product under their control or custody and not for causing non-
conforming gasoline to be in the distribution system, except where
specific evidence of causation exists. A carrier might cause an
exceedance of the ethanol content stated on the PTD for product in its
custody by commingling products with dissimilar ethanol contents. For
example, a carrier might cause the ethanol content of a product
designated as E15 to exceed 15 vol% ethanol by transporting the product
in a tank truck that had previously transported E85 that had not been
properly drained.
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\41\ For example, an ethanol manufacturer might cause a
downstream exceedance of maximum ethanol content requirements if
they did not add the required amount of denaturant.
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b. Affirmative Defenses for Liable Parties
This proposal also includes affirmative defenses for each party
that is deemed liable for a violation. Additionally, all presumptions
of liability are rebuttable. The proposed defenses are similar to the
defenses available to parties for violations of the RFG and diesel
sulfur regulations. We believe that these defense elements set forth
reasonably attainable criteria to rebut a presumption of liability. We
are proposing that the affirmative defense require a party to
demonstrate all of the following: (1) The party did not commit or cause
the violation; (2) the party has PTDs indicating that the fuel was in
compliance at its facility; and (3) except for retailers and wholesale
purchaser-consumers, the party conducted a quality assurance program.
For parties other than tank truck carriers, we are proposing that the
quality assurance program would be required to include periodic
sampling and testing of gasoline-ethanol blends for their ethanol
content. For tank truck carriers, we are proposing that the quality
assurance program would not need to include periodic sampling and
testing of the gasoline-ethanol blend, but in lieu of sampling and
testing, the carrier would be required to demonstrate evidence of an
oversight program for monitoring compliance, such as appropriate
guidance to drivers on compliance with applicable requirements and the
periodic review of records concerning the quality of gasoline-ethanol
blends and their delivery.
With respect to the assessment of liability for the introduction of
E15 into any engines, vehicles or equipment that are not covered by the
partial waiver for use of E15, EPA would typically not hold a self-
service fuel retailer liable for customer misfueling if the retailer
has labeled their dispensers appropriately and did not condone or
facilitate such misfueling.
We are proposing that participation in the ethanol content survey
could be used to meet some or all of the periodic sampling and testing
elements of a regulated party's (e.g. branded refiners, ethanol
blenders, and fuel distributors) affirmative defenses to presumptive
liability in cases where instances of noncompliance with the applicable
maximum ethanol content specification are discovered.\42\ In addition
to participation in the survey, we are proposing that ethanol blenders
would be required to periodically test the accuracy of their equipment/
methods used to add ethanol to gasoline. We are proposing that all
other regulated parties could satisfy all of the periodic sampling and
testing elements of their affirmative defenses to presumptive liability
by participating in the survey.
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\42\ See section III.C. of today's notice for a discussion of
the ethanol content survey and section IV for a discussion of the
RVP survey.
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As in other fuel regulations, branded refiners would be subject to
more stringent standards for establishing a defense because of the
control such refiners have over branded downstream parties. Under
today's rule, in addition to other presumptive liability defense
elements, we are proposing that branded refiners would also be required
to show that the violation was caused by an action by another person in
violation of law, an action by another person in violation of a
contractual agreement with the refiner, or the action of a distributor
not subject to a contract with the refiner for the transportation of
the gasoline.
Based on experience with other fuels programs, we believe that a
presumptive liability approach would increase the likelihood of
identifying persons who cause violations of the prohibited acts in
today's proposal. We normally do not have the information necessary to
establish the cause of a violation found at a downstream facility. We
believe that those persons who actually handle the fuel are in the best
position to identify the cause of the violation, and that a rebuttable
presumption of liability would provide an incentive for parties to be
forthcoming with information regarding the cause of the violation. In
addition to identifying the party that caused the violation, providing
evidence to rebut a presumption of liability would serve to establish a
defense for the parties that are not responsible. Presumptive liability
is familiar to both the petroleum industry and EPA, and we believe that
this approach would make the most efficient use of EPA's enforcement
resources. For these reasons we are proposing a liability scheme based
on a presumption of liability. We request comment on the proposed
liability provisions.
c. Penalties for Violations
CAA section 211(d)(1) provides for penalties for violations of the
fuels regulations. These penalty provisions subject any person that
violates any requirement or prohibition of the rule to a civil penalty
of up to $27,500 for every day of each such violation and the amount of
economic benefit or savings resulting from the violation. Pursuant to
40 CFR 19.4, the amounts of civil penalties for these violations
increased to $37,500 per day, plus the amount of any economic benefit
or savings resulting from the violation, for violations that occurred
after January 12, 2009. Today's proposal would subject any person who
violates any of the proposed requirements or prohibitions to a civil
penalty up to $37,500 for every day of each such violation and the
amount of the economic benefit or savings resulting from the violation.
We propose that a violation of the requirements in today's notice
would constitute a separate day of violation for each day the gasoline
giving rise to the violation remains in the fuel's distribution system.
The length of time the gasoline in question remains in the distribution
system would be deemed to be twenty-five days unless there is evidence
that the fuel remained in its distribution system a lesser or greater
amount of time. These proposed penalty provisions are similar to those
in the RFG, Tier 2 sulfur, and diesel sulfur programs. We request
comment on the proposed penalty provisions.
[[Page 68061]]
IV. Other Measures To Ensure Compliance
A. The 1.0 psi RVP Waiver for E10 Blends
One concern that was raised in the comment periods on the E15
waiver and RFS2 NPRM in addition to stakeholder meetings prior to this
proposal was whether E15 would qualify for the 1.0 psi RVP waiver
permitted under the Clean Air Act (CAA) section 211(h) for conventional
gasoline. As discussed in the partial waiver decision document, we
believe that E15 blends with higher volatility would cause vehicles to
violate their evaporative emission standards in-use. Consequently, the
waiver announced today is for E15 blends that meet the summertime
gasoline volatility standards for conventional gasoline without any 1.0
psi RVP waiver, and the regulatory provisions proposed today reflect
this decision. Furthermore, EPA interprets section 211(h)(4) of the CAA
as limiting the 1.0 psi waiver to gasoline-ethanol blends that contain
10 vol% ethanol, including limiting the provision concerning ``deemed
to be in full compliance'' to the same 10 vol% blends. EPA implemented
CAA section 211(h)(4) through 40 CFR 80.27(d) which provides that
gasoline-ethanol blends that contain at least 9 vol% ethanol and not
more than 10 vol% ethanol qualify for the 1.0 psi waiver of the
applicable RVP standard. Nevertheless, we seek comment on whether
section 211(h) of the CAA could be interpreted such that E15 is
eligible for the RVP provisions in section 211(h)(4) and whether this
would have any impact on our E15 waiver decision.
In order to introduce a fuel that meets both the Federal summertime
RVP standards and contains between 10 and 15 vol% ethanol, fuel
refiners would have to create a fuel or blendstock that has
approximately 1.0 psi lower RVP than a fuel or blendstock intended for
E10 due to the interaction between gasoline volatility and ethanol when
blended. Oxygenate blenders would need to know the RVP of a blendstock
or have the intended ethanol content of a blendstock be specified on
the PTD to ensure that they know the correct amount of ethanol that
should be blended into a fuel. If an oxygenate blender or retail
station blended more than 10 vol% ethanol into a fuel or blendstock
produced with the expectation of taking advantage of the 1 psi waiver
that applies to E10, the resulting blend would be in violation of
summertime RVP standards.
Having E10 and E15 at different RVP levels in-use also raises the
potential that mixtures of the two at retail would cause the blend to
exceed the summertime RVP requirements. Many retail stations only have
two underground storage tanks and those tanks typically contain regular
and premium grade fuels. Since, in many cases, midgrade gasoline is
made by blending regular and premium grade gasoline, the possibility
exists that a midgrade fuel blended from a high-RVP E10 fuel and a low-
RVP E15 fuel would exceed summertime RVP requirements. This fuel would
not receive the 1.0 psi RVP waiver and selling such a fuel would
violate RVP requirements.
These RVP related complications could be avoided by refiners
producing a lower RVP blendstock for E10 as well. While there are cost
and supply considerations refiners and fuel distributors may find it in
their best interest to do so given the flexibility it affords.
Regardless, the Agency believes that it would be possible to help
alleviate some of these challenges with the slight modifications to the
PTDs and the national fuel survey requirements discussed in Section III
of this proposal. RFG already has similar requirements to those that we
are proposing in today's rulemaking, and given the effectiveness we
have had with the RFG program, we believe that the proposed approach
would be an effective means of allowing fuel manufacturers to ensure
that the correct amount of ethanol was blended into the appropriate
blendstock or finished fuel with only slight additions at minimal
costs. We believe that these PTD proposals are appropriate under our
authority under sections 208 and 114 of the Clean Air Act.
1. National RVP Survey
In section III.C., we described our proposal for a national E15
labeling and ethanol content survey that is intended to ensure that
fuel pumps would be properly labeled if retail stations chose to sell
E15. In order to determine if the proposed labeling requirements are
being met and the ethanol content is consistent with the label, fuel
sampling and testing would be required to determine the ethanol
content. Since fuel refiners will have difficulty ensuring that
downstream summertime RVP requirements are met in non-RFG areas, adding
testing for RVP to this survey would be a low-cost \43\ approach to
enforcing downstream RVP standards and help provide an affirmative
defense for upstream parties in the event of a violation downstream. We
seek comment on whether RVP survey requirements should be included as
part of the national ethanol survey proposed in section III.C.
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\43\ Based EPA discussions with industry, the costs of for RVP
survey requirements as part of the E15 labeling survey would add
approximately $200,000 dollars per year to the total costs of the
survey.
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2. RVP and E15 Underground Storage Tank Transition
Another issue associated with the RVP standards is the potential
comingling of a higher RVP E10 fuel that received the 1.0 psi RVP
waiver with a lower RVP E15 that met summertime RVP requirements in
underground storage tanks when a retail station decides to transition
from selling E10 to E15. If the retail station does not completely
remove all E10 from a tank before E15 is added to the tank, the retail
station would create a fuel that violates RVP standards. The resulting
blend would be above 10 vol% ethanol and would not qualify for the 1.0
psi waiver, but would have an RVP above the requirement for E0 and E15.
Section 211(t) of the Clean Air Act, as amended by the Energy
Policy Act of 2005, allows retail stations to blend compliant RFG
batches of non-ethanol blended and ethanol-blended gasoline in storage
tanks twice a year as long as the duration of the blended period is no
longer than 10 consecutive calendar days. However, the authority
granted to the Agency for the transition of fuels in underground
storage tanks was specifically limited to that case and we do not
believe this provision authorizes a blending down of E10 and E15 over
time in non-RFG areas.
We seek comment on the issue of tank transition from E10 to E15
fuels and if there are ways that the Agency could address this issue.
B. Credit for RFG Downstream Oxygenate Blending
Pursuant to 40 CFR 80.69, refiners of RBOB are permitted to take
credit for downstream oxygenate blending toward compliance with RFG
standards. To do so the refiner must direct the downstream oxygenate
blender on the PTD to add a particular type and amount of oxygenate.
However, these provisions may require some reconsideration. In light of
the addition of E15 to the RFG marketplace, it may be more difficult to
ensure that 15 vol% ethanol is in fact added downstream if the RBOB
would also meet all other finished gasoline specifications with the
addition of just 10 vol% ethanol. Oxygenate blenders could also be left
in the untenable position of having a supply of RBOB for E15 blending
and an inability to blend more than 10 vol%
[[Page 68062]]
ethanol. We request comment regarding how the final regulation should
address this issue. For example, the regulation could limit the
refiner's claimed ethanol content to 10 vol% ethanol unless: (A) The
final blend would not comply with all gasoline specifications (e.g.,
octane) without the addition of 15 vol% ethanol, or (B) until such time
as the RBOB surveys for a particular RFG area indicates that there is a
sufficient, stable market demand for E15. We request comment on this
and other approaches to resolve this issue.
V. Modification of the Complex Model
A. Background of RFG Requirements
Reformulated gasoline (RFG) is gasoline that is required to be sold
in certain parts of the country, and is required to be reformulated to
meet certain performance standards for emissions of smog forming and
toxic air pollutants. In 1990 Congress amended the CAA to require that
RFG be sold in cities with the worst ozone pollution problems. In
addition, other cities with significant smog problems were provided the
opportunity to voluntarily opt-in to the RFG program. RFG is currently
used in portions of 17 States and the District of Columbia. About 30%
of gasoline sold in the U.S. is reformulated. In the 1990 Amendments,
Congress also required that conventional gasoline (CG, or non-RFG) sold
in the rest of the country become no more polluting than gasoline sold
in 1990. Often referred to as ``anti-dumping'', this requirement
ensures that refiners do not ``dump'' into conventional gasoline fuel
components that are restricted in RFG and that increase environmentally
harmful emissions.
EPA introduced the RFG program in 1995, as required by the CAA. The
RFG program established emissions performance standards for volatile
organic compounds (VOCs), nitrogen oxides (NOX), and toxics.
These standards are based on percent reductions from the average
emissions of these pollutants in 1990 model year vehicles operated on a
specified baseline gasoline. The program required an oxygen minimum
standard of 2.0% by weight, however the Energy Policy Act of 2005
removed that requirement. For conventional gasoline, the program
establishes emissions standards for exhaust toxics and NOX
designed to ensure that an individual refinery's or importer's gasoline
will not have higher levels of these pollutants than the refinery's or
importer's 1990 gasoline.
Refiners of RFG must comply with the RFG standards separately for
each refinery. Refiners of conventional gasoline may comply separately
for each refinery, or they may aggregate their refineries. Importers
comply with both the RFG and conventional gasoline standards for the
aggregate of the gasoline they import during the year.
B. The Complex Model
To measure compliance with the RFG and anti-dumping standards, the
emissions performance of gasoline is calculated using a model, called
the Complex Model, which predicts the emissions level of each regulated
pollutant based on the measured values of certain gasoline properties.
These properties are: Aromatics, olefins, sulfur, Reid Vapor Pressure
(RVP), benzene, oxygen and distillation points, as well as the content
of ethanol, ETBE, TAME and MTBE. Refiners and importers are required to
measure these properties in each batch of gasoline they produce or
import, using a prescribed test method, and calculate the emissions
level of each pollutant for each batch of gasoline using the Complex
Model. The emissions level as computed by the Complex Model is compared
to the baseline emissions for each pollutant, and the percent reduction
is then calculated. The standards for VOC, NOX and toxics
are stated in terms of percent reductions from the baseline. Thus, for
fuel to comply with the standards, the percent reduction computed by
the Complex Model must be equal to or greater than the standard for
each pollutant. Under the Clean Air Act, baseline emissions must be
based on 1990 vehicle technology, not current fleets, nor off-road
equipment.
For gasoline to be sold in the U.S., it must comply with the
standards. Refiners are therefore required to certify that their fuel
meets the standards by using the Complex Model. Currently, the
equations in the model are limited to an oxygen content of no more than
4.0% by weight in gasoline, which is the maximum amount of oxygen in
gasoline containing 10 vol% ethanol, or E10.\44\ In order for refiners
to produce gasoline that will contain 15 vol% ethanol, the model must
be modified to predict the effect of the additional oxygen.
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\44\ Because the percent by weight of oxygen in the fuel varies
depending on the density of the fuel, the limit in the Complex Model
is currently 4.0% by weight to reflect the maximum amount of oxygen
associated with E10. In most fuels, however, this volume is
equivalent to 3.5% by weight oxygen.
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The applicability of the Complex Model to gasoline certification
has become limited as EPA's more recent clean gasoline standards take
effect and provide even greater emission reductions beyond those of the
RFG program. The NOX emission performance requirements for
RFG and conventional gasoline have not been required since January 1,
2007 when the Tier2 gasoline average sulfur standard of 30 ppm took
effect (see 40 CFR 80.101(c)(3)(i)). Finally, beginning January 1,
2011, the air toxics emission standards for gasoline will be deemed met
by compliance with the new MSAT2 nationwide benzene standard for
gasoline, the volatility standard, and sulfur standard (see 40 CFR
80.41(e)(2) and (3)). The result is that beginning January 1, 2011,
only the VOC equation in the Complex Model will continue to be binding
and only for RFG. For conventional gasoline, there are no VOC
performance standards; only RVP limits. Thus, compliance with the anti-
dumping regulations does not require use of the Complex Model to
evaluate VOC emissions.
The one exception to this is small refiners that take advantage of
the option for delayed compliance with the MSAT2 benzene standard until
January 1, 2015. They would still need the Complex Model for air toxics
emission performance compliance during this interim period. However,
since no small refiners are currently producing RFG, it would only be
for CG. For CG, since refiners typically certify CG as E0, with
oxygenate blended downstream, they should be unaffected by the increase
in ethanol content from E10 to E15. Therefore, it appears that the only
equation that needs to be modified in the Complex Model to allow
refiners and importers to certify gasoline containing E15 after January
1, 2011 is the VOC equation.
Because emissions performance at issue is specified in the Act as
the emissions performance of 1990 vehicle technology, we are not able
to use current emission test data on motor vehicles using E15 gasoline
as a basis for evaluating appropriate changes to the VOC equation. The
test results from today's vehicle fleet would not represent the 1990
vehicle technology required to calculate the emission baseline.
Instead, we relied on a study conducted in 1994 by Guerrieri, et al.,
that examined the exhaust emissions from 1990 vehicles using gasoline
with ethanol levels varying from 0 to 40 volume percent.\45\ Figure
V.B-1 shows data reported by Guerrieri et al.\46\ The figure shows the
average values of
[[Page 68063]]
hydrocarbon emissions (representative of VOC) at several ethanol levels
relevant to this discussion, as well as the uncertainty bars at each
value. The study data showed that on average exhaust hydrocarbon
emissions increased from E10 to E12, but then decreased beyond E12.
While the study does not provide sufficient data to determine the
precise VOC emission effect between E10 and E15, the linear regression
results presented in the study (also shown in Figure V.B-1) indicate a
decreasing trend in hydrocarbon emissions with increased ethanol in
gasoline. Based on the study findings, we are reasonably confident that
the average VOC emissions for ethanol blends greater than E10 up to and
including E15 will be no worse than for E10, for 1990 technology motor
vehicles. This outcome is consistent with our engineering judgment. As
discussed in Section VI.C the general trend across vehicles of all ages
is that the addition of ethanol to gasoline tends to lower VOC
emissions due to its enleanment effect during open loop operation.
\45\ Guerrieri, David Al., Peter Caffrey, and Venkatesch Rao;
Investigation Into the Vehicle Exhaust Emissions of High Percentage
Ethanol Blends''; SAE Technical Paper Series; 950777; presented at
International Congress and Exposition; Detroit, Michigan; March,
1995.
\46\ Guerrieri, et al.; op. cit.
[GRAPHIC] [TIFF OMITTED] TP04NO10.001
Because the data available on 1990 vehicles is limited, we are not
proposing to change the Complex Model to indicate decreasing VOC
emissions with increased ethanol content between E10 and E15. Instead,
we are proposing to modify the application of the Complex Model
equations to treat VOC exhaust emissions at ethanol levels greater than
E10 and up to E15 the same as for E10. We are therefore proposing in
today's rule to modify the Complex Model to allow up oxygen levels up
to 5.8% by weight to be input to the model but that the VOC emissions
effects would be modeled the same as if it contained 4.0% by weight
oxygen.\47\ This will provide flexibility for the Complex Model to be
used over a broader range of ethanol content. We request comment on
whether the data and rationale discussed above are an appropriate basis
for the proposed adjustment to the Complex Model to account for E15.
---------------------------------------------------------------------------
\47\ The level of 5.8% by weight of oxygen is the potential
maximum oxygen level associated with E15 due to lighter than average
gasoline components. The typical weight of oxygen in E15 is 5.2%.
---------------------------------------------------------------------------
VI. Why are we proposing misfueling mitigation measures?
In previous sections we proposed to prohibit the use of E15 in
MY2000 and older motor vehicles, heavy-duty gasoline engines and
vehicles, motorcycles, and all nonroad products (which includes marine
applications). This section provides the technical rationale supporting
this decision. As discussed below, it appears that the unique physical
and chemical properties of ethanol may impact these products when they
are using gasoline-ethanol blends, particularly as many of these
products were not designed to operate on such fuels. The potential
impacts could be the impairment of the performance of their emission
control devices or systems, which would likely lead to increased HC, CO
and/or NOX emissions.
Light-duty motor vehicles (i.e., passenger cars and light-duty
trucks) have evolved significantly over time, mainly in response to
increasingly tighter emission standards, but also to improve fuel
economy, vehicle driveability, and vehicle durability. The primary
advancements in emissions control have been in the control of the air-
to-fuel (A/F) ratio matched with advancements in catalyst formulations
and designs with each new generation of motor vehicles. Today's motor
vehicles are far more sophisticated and up to 99% less polluting than
they were in the 1970s while also more tolerant of variables like fuel
composition (i.e., RVP, oxygen content). However, MY2000 and older
light-duty motor vehicles have not benefitted from these
[[Page 68064]]
advancements in technology and could experience combustion and material
compatibility problems leading to increased emissions if operated on
E15. While motorcycles (highway and off-highway), heavy-duty gasoline
engines and vehicles, and nonroad products have also evolved over time,
since they have not been regulated as long, and have much more diverse
applications, they do not reflect the same level of advanced technology
across the board as do today's light-duty motor vehicles. Consequently,
their engines and emission control systems may also be impacted in ways
that affect emission performance if operated on E15.
On the other hand, the Agency believes that newer light-duty motor
vehicles (vehicles designed to meet Tier 2 emissions standards) were
designed with significantly more robust emission controls and fuel
system components to regularly use gasoline-ethanol blends. For MY2001-
2006 light-duty motor vehicles, EPA does not have enough data on which
to base a decision at this point in time. DOE testing of MY2001-2006
light-duty motor vehicles is ongoing and will factor into the Agency's
decisions for the final rule.
The sections that follow discuss in more detail the history of
ethanol use in the U.S., the chemical and physical differences between
ethanol and gasoline, and how these differences, especially combustion
enleanment and material compatibility, could impact exhaust and
evaporative components and emissions. Specifically, we discuss the
ability of the following groups of vehicles and engines to handle E15:
(1) MY2000 and older light-duty motor vehicles; (2) heavy-duty gasoline
engines and vehicles; (3) motorcycles; (4) nonroad products; (5) MY2007
and newer light-duty motor vehicles; and (6) MY2001-2006 light-duty
motor vehicles.
A. History of Ethanol Use in the U.S.
Any assessment of the impacts of E15 use in vehicles, engines, and
equipment must begin with an understanding of the degree to which they
were designed for the use of low level gasoline-ethanol blends. E10 is
currently blended in significant quantities in most gasoline
distributed and sold in most States, but this was not always the case.
Most auto manufacturers today support the use of E10 in their vehicles
and engines since their designs have evolved over time in response to
the growing use of E10 across the country. However, the total fleet is
made up of old and new vehicles, engines, and equipment with varying
technologies and therefore varying compatibility with gasoline-ethanol
blends.
Ethanol and ethanol-gasoline blends have a long history as
automotive fuels in the United States. Inexpensive crude oil prices
kept ethanol from making a significant presence in the transportation
sector until the end of the 20th century when tax subsidies and
environmental programs helped to spur growth. On November 9, 1978, the
U.S. passed the Energy Tax Act which defined ``gasohol'' as a blend of
gasoline with 10% alcohol by volume (excluding alcohol made from
petroleum, natural gas or coal) and offered the fuel an excise tax
exemption to encourage its use.\48\ While the ethanol tax subsidy has
been modified over the years, conventional ethanol continues to receive
a $0.45/gallon tax credit and cellulosic ethanol is eligible for a
$1.01/gallon credit.
---------------------------------------------------------------------------
\48\ Refer to the Energy Tax Act of 1978, Public Law 95-618,
enacted November 9, 1978.
---------------------------------------------------------------------------
Environmental programs have also been an important contributor to
ethanol expansion in the United States. First, in the late 1980s and
early 1990s, ethanol was used as a gasoline oxygenate (along with MTBE)
to help reduce carbon monoxide (CO) emissions in various CO
nonattainment areas. Then, ethanol was used as part of the requirements
for reformulated gasoline in the worst ozone nonattainment areas
beginning in the mid 1990s.
Tax subsidies and environmental programs resulted in the growth of
the fuel ethanol market such that by the late 1990s, E10 represented
slightly more than 10% of gasoline nationwide. By 1999, 35 States were
blending ethanol into at least a portion of their gasoline.\49\
However, its use remained concentrated in the Midwest, e.g., Illinois,
Ohio, and Minnesota. Ethanol did not begin expanding significantly
beyond the Midwest until the early 2000s when States started banning
the use of Methyl Tertiary-butyl Ether (MTBE) due to groundwater
concerns. Ethanol quickly became the primary oxygenate in the gasoline
market. With the removal of the RFG oxygen mandate by the Energy Policy
Act of 2005 (EPAct), MTBE was removed from gasoline almost entirely by
2006. Ethanol replaced MTBE, broadening the fuel's use into California,
the East Coast, and other RFG areas. From 2000 to 2006, the share of
gasoline containing 10% ethanol by volume (``E10 market share'') more
than doubled as shown in Figure VI.A.-1. According to fuel survey and
certification data, ethanol is the only oxygenate currently used in any
significant quantity today.
---------------------------------------------------------------------------
\49\ EIA, Motor Gasoline Outlook and State MTBE Bans, Table 2,
available at: http://www.eia.doe.gov/emeu/steo/pub/special/mtbeban.html and FHWA, Estimate Use of Gasohol, 1999, available at:
http://www.fhwa.dot.gov/ohim/hs99/tables/mf33e.pdf.
---------------------------------------------------------------------------
[[Page 68065]]
[GRAPHIC] [TIFF OMITTED] TP04NO10.002
Since 2006, E10's market share has continued to rise. The increase
can be attributed primarily to rising crude oil prices which led to
very favorable ethanol blending economics over most of the past 4-5
years, but also to the market certainty provided by the Renewable Fuel
Standard (RFS) established by EPAct and later modified by the Energy
Independence and Security Act of 2007 (EISA). EPAct required 7.5
billion gallons of renewable fuel to be blended into transportation
fuel by 2012. In 2007, EISA expanded the RFS to 36 billion gallons by
2022. On March 26, 2010, EPA promulgated final RFS2 regulations to
implement the EISA volumes.\50\ While there are a number of renewable
fuels that can be used to meet the RFS2 requirements, EPA projects a
large percentage will come from ethanol. According to EIA, ethanol
comprised 9.4% of total U.S. motor gasoline sales during the first half
of 2010.\51\ In other words, over 90% of motor gasoline sold today is
E10.
---------------------------------------------------------------------------
\50\ 75 FR 14670 (March 26, 2010).
\51\ Refer to EIA Monthly Energy Review September 2010 (Tables
10.3 and 3.7c, respectively).
---------------------------------------------------------------------------
As E10's market share has increased over the last few years, its
prevalence has also expanded nationwide. A map showing today's
estimated E10 penetration by State is provided in Figure VI.A-2. This
State-level information, provided by HART Energy Consulting, does not
reflect California's recent shift from 5.7 to 10 vol% ethanol. While
vehicles, engines, and equipment in the Midwest have been experiencing
E10 use for a number of years, this is not the case in most of the
country. Even in much of the Midwest, E10 has become the dominant fuel
only recently. It took many years for States to reach 25% E10
saturation and even longer for States to reach 50% E10 saturation. As
shown in Figure VI.A-3, 23 States (including the District of Columbia)
just recently reached 50% saturation between 2008 and 2009.\52\ Alaska
is the only State without significant ethanol blending. According to
HART, only 10% of Alaska's gasoline is currently comprised of E10.
---------------------------------------------------------------------------
\52\ 1999-2004 state E10 marketshares based on FHWA ethanol and
EIA total motor gasoline sales. 2005 ethanol usage based on EIA's
National Emission Inventory Estimates. 2007-2009 based on HART
estimates.
---------------------------------------------------------------------------
[[Page 68066]]
[GRAPHIC] [TIFF OMITTED] TP04NO10.003
[GRAPHIC] [TIFF OMITTED] TP04NO10.004
[[Page 68067]]
B. Chemical and Physical Differences Between Ethanol and Gasoline
Understanding the chemical and physical differences between
gasoline and ethanol is helpful in determining how increased ethanol
concentrations in gasoline may impact vehicle and engine technologies
and whether emission differences may occur. Throughout most of the 20th
century, engines and vehicles were designed to run on gasoline. Engines
can and have been designed for the use of ethanol, and in the case of
FFVs, have been designed to operate effectively on both.\53\ Over the
last couple of decades, manufacturers have also taken varying steps to
redesign their gasoline engines to be more compatible with blends of
gasoline and ethanol up to 10 vol%.
---------------------------------------------------------------------------
\53\ In the U.S., the most common FFVs are also known as ``E85''
vehicles. They are designed to run on gasoline or a blend of up to
85 vol% ethanol (E85) and are equipped with modified components
designed specifically to be compatible with ethanol's chemical
properties.
---------------------------------------------------------------------------
Gasoline is a complex mixture of several hundred hydrocarbon
molecules (organic compounds containing carbon and hydrogen) ranging in
carbon number from four to twelve that are produced from various
refinery streams. In contrast, fuel ethanol contains only one kind of
molecule with two carbon atoms. Alcohols such as ethanol are derived
from hydrocarbons by replacing the hydrogen atoms in their parent
hydrocarbon (ethane is the parent of ethanol) with one or more hydroxyl
groups containing oxygen and hydrogen.
Gasoline quality specifications are provided by ASTM D4814,\54\
while ethanol quality specifications for blending in gasoline are
provided by ASTM D4806.\55\ Several properties of ethanol, as compared
to typical gasoline and toluene, are listed below in Table VI.B-1.
Since toluene is a common hydrocarbon used as an octane enhancer in
gasoline, it is included below for comparison purposes.\56\ Ethanol has
been used successfully in gasoline for several decades as a volumetric
fuel extender due to its beneficial Research Octane Number and Motor
Octane Number blending values.
---------------------------------------------------------------------------
\54\ ASTM D4814, Standard Specification for Automotive Spark
Ignition Fuel.
\55\ ASTM D4806, Standard Specification for Denatured Fuel
Ethanol for Blending with Gasoline for Use in Automotive Spark
Ignition Fuel.
\56\ SAE J1297, revised July, 2007, Surface Vehicle Information
Report, Alternative Fuels.
Table VI.B-1--Properties of Ethanol, Gasoline and Toluene 57 58 59
----------------------------------------------------------------------------------------------------------------
Gasoline (typical
Property properties) Toluene Ethanol
----------------------------------------------------------------------------------------------------------------
Chemical Formula.................... Mixed C4 to C12 C7H8.................... CH3CH2OH.
Hydrocarbons.
Molecular Weight.................... 95-115................. 92...................... 46.
Oxygen Weight Percent............... ....................... 0....................... 34.7.
Boiling Point [deg]F................ 85-437................. 231..................... 173.
Specific Gravity 60 [deg]F/60 [deg]F 0.72-0.78.............. 0.87.................... 0.79.
Research Octane Number.............. 91-100................. 111..................... 111.
Motor Octane Number................. 82-92.................. 95...................... 92.
(R + M)/2........................... 87-92.................. 103..................... 102.
Net Heat of Combustion BTU/Gal \60\. 117,000................ 126,000................. 76,000.
Latent Heat of Vaporization BTU/Gal 800.................... 1130.................... 2600.
\61\.
Solubility in Water, gram/100g H2O.. Trace.................. Trace................... Infinite.
Stoichiometric A/F Ratio, Mass Air/ 14.6................... 13.5.................... 9.0.
Mass Fuel.
Vapor Flammability Limits Percent by 0.6-8.................. ........................ 3.5-15.
Volume.
Vapor Pressure @ 100 [deg]F psi..... 9-13................... ........................ 2.5.
----------------------------------------------------------------------------------------------------------------
Because gasoline is composed of different molecules of different
lengths, it has a boiling range as well as a distillation curve. On the
other hand, because ethanol is composed of a single type of molecule,
it has a single boiling point and lacks the characteristic distillation
curve of gasoline. Functional groups such as ethanol's hydroxyl group
generally determine how a molecule will behave.
---------------------------------------------------------------------------
\57\ SAE J1297, revised July, 2007, Surface Vehicle Information
Report, Alternative Fuels. Note: The values in Table 1 should be
considered for relative comparisons only.
\58\ SAE 861178, ``The Properties and Performance of Modern
Automotive Fuels,'' P. Dorn, A.M. Mourao, and S. Herbstman, Texaco
Research Center, Beacon, N.Y.
\59\ SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
\60\ BTU/Gal = 279 J/L
\61\ BTU/Gal = 279 J/L
---------------------------------------------------------------------------
The question with the use of E15 is whether or not the vehicles,
engines, equipment, and products that are designed for the properties
of gasoline and/or E10 are also designed for the properties of E15.
Some property differences between E10 and E15 may be dealt with in fuel
blending such that the base gasoline can be adjusted in advance to
accommodate the ethanol. This adjustment will ensure that the resulting
blend meets a target specification for properties such as volatility
and octane rating. On the other hand, some property differences between
E10 and E15 are inherent to the ethanol fraction and cannot be
accounted for by blending. For example, the impact of E15 versus E10 on
engine combustion is a potential concern. How a vehicle or engine
adapts to combust fuels with different ethanol concentrations depends
on the vehicle hardware and software control strategies. Vehicles and
engines operating on E15 may have hotter exhaust temperatures than the
same vehicles and engines running on E10. In addition, material
compatibility is time, temperature, and concentration dependent. Some
material effects with E15 are possible that may not have been
experienced with E10 in the past.
The following sections describe in greater detail the chemical and
physical differences of gasoline and ethanol, particularly focusing on
the effects of these differences when ethanol is blended with gasoline.
This discussion lays the foundation for vehicle and engine specific
discussion in sections VI.C.-VI.I.
1. Impact on the A/F Ratio--Combustion Enleanment
When gasoline is combusted in an engine, the stoichiometric A/F
ratio (i.e., the ideal ratio for complete combustion of the fuel and
air into carbon dioxide and water vapor) is approximately 14.7 times
the mass of air to fuel (14.7:1). For gasoline, any mixture less than
14.7:1 is
[[Page 68068]]
considered to be a rich mixture (excess fuel), and any mixture more
than 14.7:1 is a lean mixture (excess air/oxygen) given ideal test fuel
and complete combustion. The addition of oxygenates such as ethanol
(with its hydroxyl group) to gasoline alters the stoichiometric A/F
ratio and therefore affects combustion. Engines/vehicles equipped with
feedback controls can adjust the A/F ratio to stoichiometric
conditions--around 14.0:1 for E10 and 13.8:1 for E15 (the ratio is
lower as ethanol contains oxygen so less air is needed). However, for
gasoline engines that do not have the ability to react to the desired
stoichiometric A/F ratio for a different fuel (e.g., gasoline-ethanol
blends), combustion is enleaned. E10 would result in approximately 4%
enleanment when compared with gasoline, E15 would result in
approximately 6% enleanment. This means E10 and E15 have 4% and 6% more
oxygen, respectively, than the stoichiometric A/F ratio.
Fuel metering components are sized to deliver an A/F mixture that
optimizes emission performance, power output, fuel economy, and
durability. If an engine is allowed to operate at a mixture that is
leaner than it is designed for (too much oxygen for a given amount of
fuel), it may run at a somewhat higher combustion temperature. This in
turn can lead to changes in exhaust temperatures which may affect
catalyst durability, and, especially in the case of nonroad products,
engine durability, causing an increase in emissions. In addition,
combustion instability from lean mixtures, which can cause misfire, can
then lead to accelerated catalyst performance degradation or damage.
2. Polarity and Affinity for Water
Water is one of the most polar molecules (an uneven distribution of
charge with the hydrogen atoms being positively charged and the oxygen
atom negatively charged) while ethanol is only slightly polar and a
hydrophilic (meaning water loving) molecule because of its hydroxyl
group. Ethanol dissolves in water when the two are mixed together.
Unlike ethanol, gasoline is considered to be a non-polar and
hydrophobic hydrocarbon molecule which means that it does not attract
water in the same way as ethanol does. As a result, gasoline and water
are only very slightly soluble. If enough water is added to straight
gasoline, two layers will form, known as phase separation: a water
layer and a gasoline layer.
Ethanol is soluble in gasoline though to a lesser extent than it is
in water. If a gasoline-ethanol blend is saturated with water, a
reduction in ambient temperature may cause the ethanol and gasoline to
separate into two layers. However, the presence of ethanol in gasoline
will allow more water to be absorbed by the gasoline-ethanol blend
before phase separation occurs. Some level of water carried through the
fuel distribution system is generally acceptable and likely unavoidable
given fuel exposure to moisture and humidity in normal dispensing and
storage, either at the fuel station or on-board. However, excessive
water in the fuel can lead to phase separation that can in turn cause
stalling or permanent damage to most internal combustion engines.
3. Material Compatibility
The hydroxyl group of ethanol also reacts with natural rubber
materials. Certain elastomers exposed to alcohols may swell or soften
and lose strength.\62\ Some plastics and fiberglass can become brittle
leading to cracks and leaks.\63\ Table VI.B.2.-1 shows the effects of
gasoline and ethanol on some of the many elastomers that have been
developed.\64\ As noted from this table, polyfluorocarbons have been
shown to be compatible with ethanol and ethanol blends. As discussed
below in VI.C.2., the physical interaction of ethanol with certain
elastomers also leads to increased permeation of ethanol and
hydrocarbons through the walls of components made from such materials.
---------------------------------------------------------------------------
\62\ SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
\63\ SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
\64\ Discussion of additional studies evaluating the impacts of
gasoline-ethanol blends on materials used in vehicles and nonroad
engines, vehicles, and equipment can be found in the subsections
that follow.
Table VI.B.2-1--Effects of Gasoline and Ethanol on Elastomers
------------------------------------------------------------------------
Volume swell (%) after 72 hour
immersion in:
Elastomer --------------------------------------
Gasoline Ethanol E10
------------------------------------------------------------------------
Fluorocarbon (FKM)............... 0 2 3
Polyester urethane............... 11 19 37
Fluorosilicone (FMQ)............. 14 6 18
Butadiene-acrylonitrile (NBR).... 43 8 51
Polyacrylate (ACM)............... 44 101 136
Chlorosulfonated polyethylene 49 1 56
(CSM)...........................
Ethylene-propylenediene 137 13 124
terpolymer (ePDM)...............
Natural Rubber (NR).............. 169 2 176
------------------------------------------------------------------------
Adapted from SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
4. Corrosion
Ethanol can also contribute to corrosion due to galvanic coupling
or the absorption of water. Alcohols are better electrical conductors
compared to gasoline so gasoline-ethanol blends could promote galvanic
corrosion and galvanic-couple effects between electrochemically
dissimilar alloys in the fuel system.65, 66 The National
Ethanol Vehicle Coalition and the Petroleum Equipment Institute have
demonstrated that aluminum is sensitive to corrosion from ethanol. In
addition, water in gasoline-ethanol blends can cause corrosion of
metallic materials (such as brass, cast iron, copper, and various types
of steel) as the
[[Page 68069]]
water/ethanol layer becomes acidic if phase separation occurs.\67\ The
presence of water in the fuel distribution system also provides a
suitable habitat for the growth of microbes which excrete acids that in
turn are also detrimental to metallic fuel storage systems.\68\
Contaminants in water may also impact additives used in finished fuel
that are designed to maintain the integrity of the finished
fuel.69, 70, 71 Because of these corrosion concerns, actions
are usually taken to accommodate ethanol in ethanol production,
storage, and distribution systems, as well as in vehicles and engines.
Such actions include the careful selection of materials and/or the use
of appropriate ethanol compatible coatings on susceptible metal parts
that come into contact with the ethanol fuel, as well as the use of
corrosion and biocide additives.
---------------------------------------------------------------------------
\65\ SAE 750124, ``Racing Experiences with Methanol and Ethanol-
Based Motor-Fuel Blends,'' T. Powell, Automotive Engineering
Congress and Exposition, Detroit, Michigan, February 24-28, 1975.
\66\ SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
\67\ Nakaguichi, G.M., ``Ethanol Fuel Modifications for Highway
Vehicle Use-Final Report,'' U.S. DOE Contract EY-76-C-04-3683, NTIS
document ALO-3683-T1, Washington, DC July, 1989.
\68\ Microbiologically Influenced Corrosion of Galvanic Steel,
Frederick J. Passman, PhD, Biodeterioration Control Associates,
Princeton, NJ, USA., ASTM Workshop on Fuel Corrosivity, July, 2010.
\69\ Behavior of Corrosion Inhibitor Acids In Fuel/Water Blends,
Andrew McKnight, PhD, Innospec, Newark, DE, USA, ASTM Workshop on
Fuel Corrosivity, July 2010.
\70\ Interaction of Contaminants with Pipeline Corrosion
Inhibitors, Joseph Stark, PhD, Baker Hughes, Sugarland, TX, USA,
ASTM Workshop on Fuel Corrosivity, July 2010.
\71\ Diesel Soap--Formation and Related Problems, Richard
Chapman, BP Global Fuel Technology, Naperville, IL, USA, ASTM
Workshop on Fuel Corrosivity, July 2010.
---------------------------------------------------------------------------
5. Solvency
Ethanol can also act as a solvent for various materials. As such,
ethanol has historically been known to remove or dissolve components
built up in the fuel storage, handling and delivery systems (e.g. fuel
tank, fuel lines, injectors, etc.). Once these components are loosened
or partially dissolved, they are transported through the fuel system,
and if excessive, may cause fuel filter, injector plugging or other
component problems, all of which can lead to poor operability and
degraded emission performance. Gasoline-ethanol blends may also pick up
contaminants from storage tanks and delivery trucks. The amount of
build-up is related to a combination of fuel composition properties and
fuel usage patterns (i.e., regular fuel usage versus infrequent, etc.).
Non-automotive equipment may experience fuel filter plugging related
more to extended storage periods where gasoline can deteriorate and
lead to more deposits requiring a plugged fuel filter replacement.
6. Volatility
Fuel volatility is a measure of a fuel's vapor pressure or its
tendency to vaporize. When ethanol is blended into gasoline, the
hydrogen bonding between the ethanol molecules is weakened
significantly and the alcohol ``depolarizes.'' This results in higher
Reid Vapor Pressures (RVP) for gasoline containing ethanol. Ethanol's
effects on RVP have been well documented,\72, 73, 74\ where low level
ethanol blends, in general, will increase gasoline RVP by up to one
pound per square inch with the maximum effect occurring at
approximately 3 vol% ethanol concentration. The RVP of the base fuel
will also influence just how much increase will occur by the addition
of ethanol.\75\ Increases in RVP result in increased vapor generation
and increased evaporative emissions.
---------------------------------------------------------------------------
\72\ J.L. Keller, ``Methanol and Ethanol Fuels for Modern Cars,
44th Refinery Mid-year Meeting/Session on Fossil Fuels in 1980's,
Reprint No. 08-79, May 15, 1979.
\73\ F.W. Cox, Physical Properties of Gasoline/Alcohol
Automotive Fuels, Presented at the Alcohol Fuel Technology
Conference, May 28-31, 1979.
\74\ SAE 912413 ``An Overview of the Technical Implications of
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black,
U.S. Environmental Protection Agency, Research Triangle Park, N.C.
\75\ SAE 861178, ``The Properties and Performance of Modern
Automotive Fuels,'' P. Dorn, A.M. Mourao, and S. Herbstman, Texaco
Research Center, Beacon, N.Y.
---------------------------------------------------------------------------
Additionally, while ethanol at certain levels may raise the general
volatility of the gasoline-ethanol blend, because of ethanol's single
boiling point and high latent heat of vaporization, the ethanol
fraction may cause combustion difficulties and increased emissions
during the start of some spark-ignition engines when the engines are
cold, particularly at colder start temperatures. Further, once the
engine is hot, the single boiling point can also cause difficulty in
operating and starting a hot engine as observed in older motor vehicles
when ethanol first became available. The ethanol would reach its
boiling point in the fuel system and result in what is known as ``vapor
lock.''
C. Model Year 2000 and Older Light-Duty Motor Vehicles
Ethanol impacts motor vehicles in three primary ways. First, as
discussed in Section VI.B.1 above, ethanol enleans the A/F ratio which
leads to increased exhaust gas temperatures and therefore potentially
incremental deterioration of emission control hardware and performance
over time. Second, over time, enleanment caused by ethanol can
ultimately lead to catalyst failure. Third, ethanol can cause material
compatibility issues which may lead to other component failure.
Ultimately, all of these impacts may lead to exhaust and/or evaporative
emission increases.
1. Enleanment
MY2000 and older light-duty motor vehicles have much less
sophisticated emissions control systems compared to today's motor
vehicles and, as described below, may experience conditions that lead
to both immediate emission increases and increases over time if
operated on E15. Vehicles produced prior to the mid-1980s were equipped
primarily with carbureted engines. The A/F ratio of the carburetor is
preset at the factory based on the expected operating conditions of the
engine such as ambient temperature, atmospheric pressure, speed, and
load. As a result, carburetors have ``open loop'' fuel control which
means that the air and fuel are provided at a specified, predetermined
ratio that is not automatically adjusted during motor vehicle
operation. As fuel composition can vary, an engine with a carburetor
and open loop fuel control would never know whether it achieved the
desired A/F ratio. Since the motor vehicles at this time operated
``open loop'' all of the time with no ability to react for changes in
the A/F ratio, the addition of ethanol to the fuel tended to make the
A/F ratio leaner--closer to stoichiometry, which had the immediate
effect of reducing HC and CO emissions, but increasing NOX
emissions. However, some of these older open loop systems already
operate at the lean edge of combustion on current commercial fuels so
an increase in ethanol may cause them to begin to misfire resulting in
HC and CO increases.
As a result of the Clean Air Act, EPA established standards and
measurement procedures for exhaust, evaporative, and refueling
emissions of criteria pollutants. From 1975 into the 1980s, motor
vehicles became equipped with catalytic converters, first with
catalysts capable of oxidizing HC and CO, and then, in response to
EPA's ``Tier 0'' standards, with three-way catalysts that also reduced
NOX. Motor vehicles produced in the 1980s and even more so
in the 1990s as a result of more stringent California and Federal
(e.g., ``Tier 1'') standards evolved to incorporate more sophisticated
and durable emission control systems. These systems generally included
an onboard computer, oxygen sensor, and electronic fuel injection with
more precise closed-loop fuel compensation and therefore A/F ratio
control during more of the engine's operating range. However, even
[[Page 68070]]
with the use of closed loop systems through the late 1990s, the
emission control system and controls remained fairly simple with a
limited range of authority and were primarily designed to adjust for
component variability (i.e., fuel pressure, injectors, etc.) and not
for changes in the fuel composition. During this period, ethanol was
only available in very limited areas of the US so the manufacturers'
designs of the emission controls and the durability of emission control
hardware generally did not account for the increased oxygen content of
ethanol. As a result, this generation of vehicles certified to Tier 0
and early Tier 1 emission standards operated leaner on ethanol, causing
immediate emission impacts (lower HC and CO emissions, higher
NOX emissions) and may have also deteriorated at different
rates when exposed to ethanol. These designs continued to evolve during
the early period of the Tier 1 emission standards as manufacturers and
component suppliers gained experience with vehicles in-use. However,
the largest improvements to emission controls and hardware durability
came after 2000 with the introduction of several new emission standards
and durability requirements forcing manufacturers to better account for
the implications of in-use fuels on the evaporative and exhaust
emission control systems.
While most motor vehicles are operating today on E10, motor
vehicles operated on E15 will likely run even leaner than those
operated on E10 depending on the motor vehicle technology and operating
conditions. Enleaned combustion leads to an increase in the temperature
of the exhaust gases. This increase in exhaust gas temperatures has the
potential to raise the temperatures of various exhaust system
components (e.g., exhaust valves, exhaust manifolds, catalysts, and
oxygen sensors) beyond their design limits. However, based on past
experience, the most sensitive component is likely the catalyst,
particularly in older motor vehicles with early catalyst technology.
Catalyst durability is highly dependent on temperature, time, and fuel
gas composition. Catalyst temperatures must be controlled and catalyst
deterioration minimized during all motor vehicle operation modes for
the catalyst to maintain high conversion efficiency over the motor
vehicle's life. This is particularly important during high load
operation of a motor vehicle where high exhaust gas temperatures are
encountered and the risk for catalyst deterioration is highest.
Catalysts that exceed temperature thresholds will deteriorate at rates
higher than expected, compromising the motor vehicle's ability to meet
the required emission standards over its full useful life. Extended
catalyst exposure to higher exhaust temperatures can accelerate
catalyst thermal deactivation mechanisms (e.g., sintering of active
precious metal sites, sintering of oxygen storage materials, and
migration of active materials into inert support materials). While this
damage can occur at a highly accelerated rate with a sudden change in
temperature (e.g., with a misfire allowing raw fuel to reach the
catalyst), it is more likely to occur over time from elevated exhaust
temperatures as may be experienced with frequent or even occasional
exposure to E15. This deterioration may adversely affect a motor
vehicle's ability to control emissions, particularly after significant
mileage accumulation.
Some motor vehicles may be able to manage catalyst temperatures by
compensating for the oxygen in the fuel under all operating conditions,
including high loads. This is achieved by using a closed-loop fuel
system that measures the A/F ratio and makes the appropriate
corrections to maintain the A/F ratio in the very tight ban of
operation around stoichiometry necessary for optimum catalyst
performance and reductions in HC, CO, and NOX emissions. The
part of the closed-loop fuel system that is responsible for the
correction to the A/F ratio is referred to as ``fuel trim.'' The fuel
trim adds or removes fuel to the engine to maintain the required A/F
ratio. If the measured A/F ratio has insufficient oxygen, or is
``rich'' compared to what the engine needs, the fuel trim will instruct
the fuel injectors to inject less fuel, making the A/F ratio
``leaner.'' The opposite is true if the measured A/F ratio has too much
oxygen and needs to inject more fuel for a ``richer'' A/F ratio. The
fuel trim is generally comprised of two major parts, short term fuel
trim and long term or adaptive learned fuel trim. Learned fuel trim,
also known as adaptive fuel trim, can also be applied to open loop
operation such as high load or wide open throttle to alleviate the
catalyst temperature increases caused by operating on E15 fuel.
However, while this strategy was more common in later model years
closer to MY2000, it was not consistently employed by all
manufacturers. Some manufacturer models may have less range of
authority than others and some may require longer periods of time to
adapt. Hence, control algorithms and calibrations used by some
manufacturers may be more effective than others.
The fuel trim has a limited range of adjustment in which it can
continue to update the A/F ratio and maintain the fuel system at or
near stoichiometry. For MY2000 and older light-duty motor vehicles, the
fuel trim range is generally more limited than the range for newer
light-duty motor vehicles, and MY2000 and older motor vehicles may use
their full range of fuel trim adjustment to account for normal
component deterioration. Injectors, sensors and changes to fuel
pressure may shift with time and aging to use all of the fuel trim's
range of adjustment. The additional oxygenate in E15 may actually shift
the A/F ratio more than the earlier introduction of E10 if the engine's
A/F ratio feedback cannot compensate because it has reached its
adjustment limit. In short, MY2000 and older motor vehicles are at risk
of having insufficient thermal margins to accommodate ethanol blends up
to E15 due to the limits of their fuel trim range.
Test data to confirm or refute concerns over the use of E15 in
older vehicles is very limited in scope and content. The available data
do not prove or disprove the concerns, although there are several
studies that support the potential for long term durability issues
consistent with engineering theory. Three studies--the CRC Screening
Study, DOE Pilot Study, and the Orbital Study--discussed in section
IV.A. highlight in particular the concern with MY2000 and older motor
vehicles. The CRC Screening Study (E-87-1) was a test program developed
to look at the effects of mid-level ethanol blends on U.S.
vehicles.\76\ This screening study was the first phase of a two-phase
study evaluating the effects of mid-level ethanol blends on emission
control systems. The purpose of this first phase of the study was to
identify vehicles which used learned fuel trims to correct open loop
air-fuel rations. Under the test program a fleet of 25 test vehicles
was identified and acquired with six of those vehicles being MY2000 and
older. The study collected vehicle speed, oxygen sensor air-fuel-ratio,
and catalyst temperature data for four fuels (E0, E10, E15, and E20).
The results of the three ethanol blended fuels compared to E0 showed
that four of the six MY2000 and older vehicles tested failed to apply
long-term fuel trim to open loop operation in order to compensate for
increasing ethanol levels. And that these
[[Page 68071]]
same four vehicles exhibited increased catalyst temperatures when
operated on E20 as compared to E0. While the subsequent DOE Catalyst
Study concluded that this learned fuel trim was not important for
MY2007 and newer motor vehicles because they are durable (and therefore
can handle E15) as discussed in section IV.A, there was no such follow
on program for MY2000 and older motor vehicles so the durability of
these vehicles on E15 is unknown.
---------------------------------------------------------------------------
\76\ Mid-level Ethanol Blends Catalyst Durability Study
Screening (CRC Report: E-87-1), June 2009 (``CRC Screening Study'').
http://www.crcao.com/reports/recentstudies2009/E-87-1/E-87-1%20Final%20Report%2007_06_2009.pdf
---------------------------------------------------------------------------
Another study suggests that many MY2000 and older motor vehicles
may also have emission exceedances if operated on E15. In 2003, the
Orbital Engine Company issued a report on the findings of vehicle
testing it completed to assess the impact of E20 on the Australian
passenger vehicle fleet. While the Australian vehicles in this study
were not representative of U.S. vehicles of the same model years, they
are similar to MY2000 and older U.S. motor vehicles with respect to
technology and emission standards. The testing program covered vehicle
performance and operability testing, vehicle durability testing, and
component material compatibility testing, on nine different vehicle
makes or models, five vehicles from MY2001 and four vehicles from
MY1985 to MY1993. Testing results showed increases in exhaust gas
temperature in five of the nine vehicles tested with three showing
increases in catalyst temperature. Enleanment was found to occur in six
of the nine vehicles tested, with three having closed loop control--the
old vehicles without closed loop control all displayed enleanment. In
general, the increase in exhaust gas temperature was found to follow
those vehicles with enleanment. Furthermore, one vehicle in the study
experienced catalyst degradation sufficient to make the tested vehicle
no longer meet its applicable Australian emission standards.
EPA recently received a report by Ricardo \77\ commissioned by the
Renewable Fuels Association specifically discussing the potential
impacts of E15 on MY1994-2000 light-duty motor vehicles. However, as
discussed in the decision document, it sheds little new light on the
potential emission impacts of E15 on MY2000 and older motor vehicles.
While arguing that many MY1994-2000 motor vehicles may be designed to
be compatible with E15, it did so only for ``properly engineered''
vehicles. Furthermore, it acknowledged potential emission increases in-
use, but in the context of the waiver decision highlighted that they
were likely within manufacturer compliance margins. Finally, it drew
many of its conclusions only relative to E10, not to E0.
---------------------------------------------------------------------------
\77\ Ricardo Inc., Technical Assessment of the Feasibility of
introducing E15 Blended Fuel in U.S. Vehicle Fleet, 1994 to 2000
Model Years, 10 September, 2010. EPA Docket EPA-HQ-OAR-
2010-0448.
---------------------------------------------------------------------------
Hence, based on the limited data available and our engineering
judgment, we conclude that MY2000 and older motor vehicles have the
potential to experience conditions when operated on E15 which may
ultimately lead to an increase in emissions.
2. Material Compatibility
Data and information exist in the literature regarding ethanol's
impacts on motor vehicle material compatibility. Engine, fuel system,
and emission control materials (metals, plastics, and elastomers) must
maintain their integrity for motor vehicles to meet their exhaust and
evaporative emissions standards. Material incompatibility can result
from the chemical reaction or physical interaction between a fuel and
material with which it comes into contact. This can lead to emissions
compliance problems not only immediately upon using the new fuel or
fuel additive, but especially over time. In most cases one would expect
any materials incompatibility to show up in the emissions tests, but
there may be impacts that do not show up due to the way the testing is
performed or because the tests simply do not capture the effect. As a
result, along with emissions testing, materials compatibility is a key
factor in assessing the emissions durability of a fuel or fuel
additive.
Based on our engineering assessment, it appears that manufacturers
took varying steps at different points in time to transition the
materials in their motor vehicle designs to be E10 compatible. Many in
the mid-to-late 1980s took steps for E10 compatibility at least for the
more immediate effects of ethanol (e.g., the dissolving of certain
elastomers). Large parts suppliers began testing materials on gasoline-
ethanol blends in the mid-to-late 1980s and early 1990s, but practices
varied with manufacturer. At the same time, certain areas have now had
E10 for a number of years and therefore motor vehicles in these areas
have experienced a much higher frequency of ethanol exposure. This has
led many to argue that ethanol is compatible for all motor vehicles in
the in-use fleet and therefore E15 should be too. However, since the
effects would be long term, it is difficult to assess whether these
motor vehicles experienced any higher rates of deterioration or
component failure on E10. Furthermore, material compatibility with
ethanol is time, condition (e.g., temperature, pressure), and
concentration dependent, such that problems may occur with E15 that did
not show up with E10.
Moving from E10 to E15 reflects a 50% increase in the volume of
ethanol present in gasoline. Therefore, since the impacts of ethanol on
materials are a function of concentration, E15 has the potential to
have more significant impacts than E10 if used in motor vehicles not
equipped for it. For MY2000 and older motor vehicles, E15 use may
result in degradation of metallic and non-metallic components in the
fuel and evaporative emissions control systems that can lead to highly
elevated hydrocarbon emissions from both vapor and liquid leaks.
Potential problems such as fuel pump corrosion or fuel hose swelling
would likely be worse with E15 than historically with E10, especially
if motor vehicles will be operating exclusively on it. Since ethanol
historically comprised a much smaller portion of the fuel supply (see
section VI.A.), in-use experience with E10 was often discontinuous or
temporary, while material effects are time and exposure dependent.
Thus, problems may surface with E15 that have not surfaced historically
in-use. Additionally, leak detection diagnostics did not appear until
MY1996 and enhanced evaporative test procedures were not fully
implemented until the late 1990s.
In addition to potential vapor or liquid leaks, ethanol is also
known to facilitate permeation through the materials in the fuel
system. Studies have shown this to be a significant source of increased
emissions with gasoline-ethanol blends, especially on older motor
vehicles. Following additional testing requirements as part of the Tier
2 motor vehicle emission standards beginning in 2004, materials in
newer motor vehicles have been able to mitigate the permeation effects
of ethanol in the fuel, as discussed in the waiver decision document.
However, as shown in the Figure VI.C.2-1 below, permeation emissions
from older model year vehicles may be very high with ethanol
blends.\78\
---------------------------------------------------------------------------
\78\ Diurnal testing refers to a process for measuring
evaporative emissions where a vehicle is placed in a sealed
enclosure and the temperature varied over multiple cycles to
simulate ambient day and night conditions in summertime. Enhanced
Evaporative Emission Vehicles (CRC Report: E-77-2), March 2010, and
Evaporative Emissions from In-Use Vehicles: Test Fleet Expansion
(CRC Report: E-77-2b), June 2010.
---------------------------------------------------------------------------
[[Page 68072]]
[GRAPHIC] [TIFF OMITTED] TP04NO10.005
As part of its waiver application, Growth Energy submitted a series
of studies completed by the State of Minnesota and the Renewable Fuels
Association (RFA) that investigated materials compatibility of motor
vehicle engines and engine components using three test fuels: E0, E10,
and E20 (``Minnesota Compatibility Study'').\79\ The Minnesota
Compatibility Study looked at 19 metals (``Metals Study''),\80\ eight
elastomers (rubber materials) (``Elastomers Study''),\81\ eight
plastics (``Plastics Study''),\82\ and 24 common fuel sending unit and
fuel pump combinations (``Fuel Pumps Study'' and ``Fuel Pump Endurance
Study''),83, 84 currently used in automotive, marine, small
engine, and fuel system dispensing equipment for physical or chemical
effects due to ethanol.\85\
---------------------------------------------------------------------------
\79\ ``The Feasibility of 20 Percent Ethanol Blends by Volume as
a Motor Fuel;'' State of Minnesota and Renewable Fuels Association.
\80\ ``The Effects of E20 on Metals Used in Automotive Fuel
System Components;'' Bruce Jones, Gary Mead, Paul Steevens, and Mike
Timanus; Minnesota Center for Automotive Research at Minnesota State
University, Mankato; February 22, 2008.
\81\ ``The Effects of E20 on Elastomers Used in Automotive Fuel
System Components;'' Bruce Jones, Gary Mead, Paul Steevens, and
Chris Connors; Minnesota Center for Automotive Research at Minnesota
State University, Mankato; February 22, 2008.
\82\ ``The Effects of E20 on Plastic Automotive System
Components;'' Bruce Jones, Gary Mead, and Paul Steevens; Minnesota
Center for Automotive Research at Minnesota State University,
Mankato; February 21, 2008.
\83\ ``The Effects of E20 on Automotive Fuel Pumps and Sending
Units;'' Nathan Hanson, Thomas Devens, Colin Rohde, Adam Larson,
Gary Mead, Paul Steevens, and Bruce Jones; Minnesota State
University, Mankato; February 21, 2008.
\84\ ``An Examination of Fuel Pumps and Sending Units During a
4000 Hour Endurance Test in E20;'' Gary Mead, Bruce Jones, Paul
Steevens, Nathan Hanson, and Joe Harrenstein, Minnesota Center for
Automotive Research at Minnesota State University, Mankota; March
25, 2009.
\85\ Effects assessed in the studies include: Pitting, surface
texture change, discoloration, or loss of mass for metals;
appearance, volume, weight, tensile strength, elongation, and
hardness for elastomers; mass loss or gain, volume loss or gain,
tensile elongation, impact resistance, and tensile strength for
plastics; and corrosion and longevity as measured by flow and
pressure tests for pumps and sending units.
---------------------------------------------------------------------------
Results from the Minnesota study were mixed depending on if the
comparison was being made between E20 and E10 or E20 and E0. Some
materials were compatible with the ethanol blends while some displayed
larger property changes with the ethanol blends. Because of the immense
variety of materials available and the overlap in use of the different
materials over time, the study could not test all materials in the
fleet, nor did it directly assign the materials tested to a vehicle
generation or model year. Instead, the study generalized that because
ethanol was available in some parts of the U.S., these materials were
likely E10 compatible. However, these materials were used prior to the
widespread use of ethanol and therefore conceivably prior to many
manufacturer's requirement for prolonged exposure to ethanol and
specifically not for gasoline-ethanol blends above 10%. It is difficult
to quantify the overall impact of changes in any material due to
ethanol at E15 or E20 levels and what those changes would mean to the
older motor vehicle fleet, only that some portion of the fleet may
experience changes that could result in accelerated component failures
beyond what would be expected on E0 or E10. In addition, it is
important to note that the Minnesota Compatibility Study assessed
component parts using laboratory bench tests rather than durability
studies of whole motor vehicle fuel systems simulating ``real world''
motor vehicle use.
[[Page 68073]]
In addition to providing comments on the Minnesota Compatibility
Study as discussed in the waiver decision document, the Alliance
commented that engines need to be hardened for resistance to ethanol.
Use of gasoline-ethanol blends in unhardened engines can result in
bore, ring, piston and valve seat wear. Deterioration of these
components can lead to compression and power loss, misfire and catalyst
damage.
Based on our review of the literature and industry comments on the
E15 waiver request, we believe that MY2000 and older light-duty motor
vehicles have the potential for increased material degradation with E15
use. In addition, some MY2000 and older light-duty motor vehicles may
have been designed for only limited exposure to E10 while the oldest
vehicles on the road pre-date ethanol blends in the marketplace all
together. This potential for material degradation may make the
emissions control and fuel systems more susceptible to corrosion and
chemical reactions from E15 when compared to the E0 certification fuels
for these motor vehicles and may ultimately increase vehicle emissions,
especially for MY2000 and older motor vehicles.
3. Motor Vehicle Population and Anticipated Emissions Impact
There is a long history of test programs that have been carried out
on light-duty motor vehicles and trucks that have quantified the
immediate emission impacts of blending ethanol up to 10 vol% into
gasoline. These test programs, dating back to the earliest days of
gasoline-ethanol blends, have found that the oxygen content of ethanol
enleans the A/F ratio in motor vehicles during open-loop operation,
causing a decrease in HC and CO emissions, but also results in a
corresponding increase in NOX emissions. These studies have
been used to develop emission models, such as the EPA Predictive Models
\86\ incorporated into the Agency's MOVES model,\87\ that have been
thoroughly peer reviewed. The result is that for a typical E10 blend of
gasoline, exhaust NMHC emissions have been found to decrease by about
5%, and NOX emissions to increase by about 6%, relative to
E0.\88\ While the magnitude of impact may vary by a few percent
depending on the motor vehicle technology and how other fuel properties
change when ethanol is blended into gasoline, the relative magnitude
and direction of the impacts remains consistent for typical fuels.\89\
The limited available data on E15 suggests that this trend continues,
and is slightly more pronounced due to the higher ethanol content.
However, these emission impacts are not the focus of this proposal as
their magnitude tends to be within vehicle compliance margins (the
difference between a vehicle's actual emission certification level and
the standard). Rather, for this proposal, we have focused on long-term
durability issues associated with E15, as discussed in more detail
below. The issue of immediate emission increases for E15 is more
properly addressed as part of the anti-backsliding study and rulemaking
under section 211(v) of the Act.
---------------------------------------------------------------------------
\86\ A detailed description of the development of the EPA
Predictive Models is available in a Technical Support Document:
``Analysis of California's Request for Waiver of the Reformulated
Gasoline Oxygen Content Requirement for California Covered Areas'',
EPA420-R-01-016, June 2001.
\87\ The Agency's MOVES model has undergone extensive peer
review and testing, and incorporates the EPA Predictive Models.
\88\ These effects are based the EPA Predictive Models and are
generally consistent with conclusions of CRC E-74b report (e.g.,
Figure ES-2). Fuels properties evaluated were based on market
averages and were as follows: E0 had aromatics content of 29.5 vol%,
a T50 of 215 [deg]F, a T90 of 325 [deg]F, and an RVP of 8.9 psi and
E10 had aromatics content of 24.9 vol%, a T50 of 202 [deg]F, T90 of
325 [deg]F, and an RVP of 8.9 psi. Other parameters not mentioned
here were assumed to be held constant between the blends.
\89\ Results based on data mostly from vehicle models that
predated the Tier 2 emission standards, so several recent test
programs have been focused on Tier 2 vehicles that will soon make up
the majority of the in-use fleet.
---------------------------------------------------------------------------
Sufficient data do not exist to predict specific changes in
emission rates for the various motor vehicle technologies due to long-
term use of E15 blends. However, with respect to exhaust emissions, if
a catalyst were to be damaged to the point of having no significant
remaining functionality, we could expect NOX emissions
similar in magnitude to those in untreated engine-out exhaust (i.e.,
before treatment by the catalyst). If, in this situation, the fuel
control system continued to operate in closed-loop mode, NOX
emission levels in the range of 2-4 g/mi would be expected, or
approximately ten times the typical emissions rate for a properly
operating 1990s-era motor vehicle and about 60 times that of new cars
today.\90\ Similarly, loss of catalyst function could also cause
significant HC emission increases, where levels on the order of 2 g/mi
could be expected.\91\ This would be equivalent to combined HC
emissions of 40 new cars today. While this kind of complete failure
would likely be limited in nature, misfueled motor vehicles may
experience a reduction in catalyst efficiency earlier than intended,
resulting in emissions levels increased above current levels and up to
the uncontrolled engine-out levels presented above.
---------------------------------------------------------------------------
\90\ See ``Effects of Gasoline Composition on Vehicle Engine-Out
and Tailpipe Hydrocarbon Emissions--The Auto/Oil Air Quality
Improvement Research Program'', SAE Paper No. 920329. See also
``Engine-out and Tail-Pipe Emission Reduction Technologies of V-6
LEVs'', SAE Paper No. 980674. A vehicle not operating in closed-loop
mode may emit more or less NOX depending on combustion
behavior. During the 1990s, Federal emission standards for
NOX dropped from 1 g/mi to 0.4 g/mi.
\91\ See ``Effects of Gasoline Composition on Vehicle Engine-Out
and Tailpipe Hydrocarbon Emissions--The Auto/Oil Air Quality
Improvement Research Program'', SAE Paper No. 920329. See also
``Engine-out and Tail-Pipe Emission Reduction Technologies of V-6
LEVs'', SAE Paper No. 980674.
---------------------------------------------------------------------------
Another area of concern related to exhaust emissions is fuel pump
malfunction occurring due to material incompatibility of higher ethanol
content with parts such as plastic pump rotors, shaft seals or
elastomeric tubing, and increased corrosion of metallic or electrical
components. As described in Section VI.B, ethanol increases the
electrical conductivity of fuel, increasing the likelihood that
galvanic corrosion of metal parts would occur. Before outright failure,
malfunctioning fuel pumps often provide inconsistent fuel pressure for
some period of time, resulting in long crank (starting) times,
misfires, and other erratic engine behavior. Should such conditions
occur, they may cause increases in exhaust emissions and possible
deterioration of exhaust catalysts.
In addition to the potential for exhaust emissions increases,
evaporative emissions are also expected to increase, not only
immediately due to increased permeation (as discussed above), but also
due to long-term E15 use that may cause from increased corrosion of
metallic fuel system components and accelerated deterioration of
elastomeric hoses and seals. Corrosion may result in vapor or liquid
leaks, depending on where in the fuel system the corrosion is located.
Many types of elastomers used in o-rings and fuel lines swell or crack
when exposed to ethanol, resulting in increased permeation of vapor or
liquid leaks. Elastomeric seals on older motor vehicles may already be
brittle and weakened from age. Exposure to E15 may produce accelerated
failures of these elastomeric components.
Though it is difficult to quantify the impacts of these types of
evaporative component failures, a recent evaporative emissions study
produced some relevant data. During the program, a motor vehicle with a
fuel system leak due to an o-ring failure produced between 23-26 times
more gasoline vapor during a pair of diurnal tests than
[[Page 68074]]
a properly-functioning new motor vehicle meeting current standards.\92\
The study also placed very small simulated leaks (essentially pin
holes) in gas caps of three motor vehicles, representative of what
could occur as a result of tiny corrosion sites in the vapor space of
the fuel tank. Diurnal tests were performed to compare the emissions
with and without the leaks. The MY1996 motor vehicle produced 54 times
more evaporative emissions with the simulated leak, while the MY2001
and 2004 motor vehicles produced two and three times more vapors,
respectively. The study authors point out that the two newer motor
vehicles had tank vent systems designed to meet onboard refueling vapor
recovery (ORVR) requirements, suggesting this may mitigate the effect
of vapor space leaks.\93\
---------------------------------------------------------------------------
\92\ Diurnal testing refers to a process for measuring
evaporative emissions where a vehicle is placed in a sealed
enclosure and the temperature varied over multiple cycles to
simulate ambient day and night conditions in summertime. See
Coordinating Research Council Report No. E-77-2 for detailed results
(available at http://www.crcao.org).
\93\ Onboard refueling vapor recovery systems were phased into
production in light-duty motor vehicles over MY1998-2000, and
provide a relatively short, large-diameter pathway for vapors to
reach the carbon canister where they are stored for combustion
during engine operation. See Coordinating Research Council Report
No. E-77-2 for detailed results (available at http://www.crcao.org).
---------------------------------------------------------------------------
Thus, we may conclude that even small vapor space leaks occurring
in older motor vehicles (before ORVR was required) have the potential
to result in large increases in HC emissions.
For more discussion on potential evaporative issues, refer to the
Waiver Decision document Section IV.A.3 that was also released today.
Table V1.C.3-1 below shows the projected population of motor
vehicles--passenger cars and light-duty trucks in the fleet--by model
year for 2011. According to this information, of the total estimated
225 million cars and trucks that operate on gasoline in the fleet
today,\94\ nearly 73 million or one-third are MY2000 and older light-
duty motor vehicles, and it is these motor vehicles for which the
effects of E15 are uncertain but indicate the potential for anywhere
from small to significant emission increases from the deterioration of
the emissions control system over time. As discussed above, if motor
vehicles experience engine or emission component failure, the potential
exists for very elevated exhaust and/or evaporative system emissions
rates. If only a fraction of the fleet were to experience problems with
E15, that would still be a large number of motor vehicles with a
potentially significant impact on in-use emissions.
---------------------------------------------------------------------------
\94\ There are approximately 250 million cars and trucks in the
fleet today when diesels are included.
Table VI.C.3-1--Projected Population of Cars and Light Trucks by Model Year in 2011
----------------------------------------------------------------------------------------------------------------
Cars and trucks
Model year Cars Light trucks combined Cumulative total
----------------------------------------------------------------------------------------------------------------
2000 and earlier.................... 41,548,800 32,162,084 73,710,884 73,710,884
2001-2006........................... 46,567,413 38,594,752 85,162,165 158,873,049
2007-2011........................... 39,068,213 26,755,598 65,823,812 224,696,860
---------------------------------------------------------------------------
Total........................... 127,184,425 97,512,435 224,696,860 .................
----------------------------------------------------------------------------------------------------------------
Source: EPA's vehicle certification data and Mobile Vehicle Emissions Simulator (MOVES) model.
D. Heavy-Duty Gasoline Engines and Vehicles
Given its limited market, heavy-duty gasoline engines and vehicles
have not been the focus of test programs and efforts to assess the
potential impacts of E15 on such engines. From a historical
perspective, the introduction of heavy-duty gasoline engine and vehicle
technology has lagged behind the implementation of similar technology
for light-duty motor vehicles. Similarly, emission standards for this
sector have lagged behind those of light-duty motor vehicles, such that
current heavy-duty gasoline engine standards remain comparable from a
technology standpoint to older light-duty motor vehicle standards.
Consequently, we believe the discussion in Section VI.C. for MY2000 and
older motor vehicles should also be applicable to the majority of the
in-use fleet of heavy-duty gasoline engines and vehicles. Therefore, we
are proposing to prohibit the use of E15 in heavy-duty gasoline engines
and vehicles. We seek comment on this assessment.
E. Motorcycles
Motorcycles come in many different sizes, styles and applications.
The biggest distinction between motorcycle types are that some are
designed for operation on-road and others are designed for operation
off-road. The motorcycles designed for operation on-road are referred
to as highway motorcycles. Highway motorcycles can range from small
scooters equipped with a 50 cubic centimeter (cc) single cylinder two-
stroke engine to a large touring motorcycle equipped with a multi-
cylinder four-stroke engine with an engine displacement exceeding 2,000
cc. Motorcycles designed for off-road operation are referred to as off-
highway motorcycles and can differ significantly from highway
motorcycles in design and appearance.
Motorcycles have been around for well over 100 years. The fuel
system used to manage the A/F ratio for motorcycles has been the
carburetor. In fact, the carburetor has been the fuel control system of
choice for highway and off-highway motorcycles until the last decade.
Starting in the late 1990s, some of the more expensive high performance
highway motorcycles began to use electronic fuel injection (EFI) to
manage the A/F ratio. While EFI is becoming more common today in many
highway motorcycles, there are still many models that use carburetors.
Off-highway motorcycles have only begun to use EFI in a very few
expensive competition models. The vast majority of off-highway
motorcycles continue to use carburetors.
All internal combustion engines need a system to cool the engine
from the excessive heat generated as part of the combustion process.
Without a cooling system, the engine would quickly overheat and fail.
Motorcycles use two types of engine cooling systems: liquid-cooled and
air-cooled. Liquid-cooled systems are very similar to the systems used
by automobiles. A radiator stores a liquid coolant that is distributed
throughout the engine which cools the engine. The heated coolant is
returned to the radiator where it is cooled by air from the moving
motorcycle or from an external fan. An air-cooled system is similar to
that used for most nonroad engines and is less sophisticated than a
[[Page 68075]]
liquid-cooled system. An air-cooled system uses a series of external
``fins'' located on the cylinders and cylinder heads that help direct
heat away from the cylinder and cylinder head. Since the engine in a
motorcycle is exposed to the atmosphere and not contained in an engine
compartment like an automobile, the engine is exposed to passing air as
the machine is operated on the road or trail. The passing air is
channeled through the fins and helps cool the cylinder and cylinder
head, which helps cool the combustion chamber, reducing the overall
engine temperature. Air-cooling is not nearly as effective at
controlling engine temperature as liquid cooling. One of the strategies
to help with engine cooling for engines that rely on air-cooling is to
operate the engine at an A/F ratio that is rich of stoichiometry. The
additional fuel helps reduce combustion temperature, keeping overall
engine temperature lower. For this reason, any increase in the A/F
ratio beyond that designed for at the time of manufacturing, such as
the enleanment resulting from ethanol, raises potential concerns.
In 1978, EPA issued HC and CO emission standards for highway
motorcycles. There were no standards for NOX emissions. To
meet these standards, the vast majority of motorcycle models used the
approach of adjusting the A/F ratio rather than using any unique
emission control technologies, such as catalytic converters, EFI, and
air injection. For performance and durability purposes, most
motorcycles operated with an A/F ratio that was considerably rich of
stoichiometry. The strategy used to control HC and CO emissions was to
lean the A/F ratio from these rich values traditionally used for
maximum performance. As with light-duty motor vehicles, this strategy
resulted in lower HC and CO emissions, but caused an increase in
NOX emissions. Since there were no NOX emission
standards, the increased NOX emissions were allowed. This
strategy also resulted in complaints about vehicle performance and
driveability. As a result, a common practice was for motorcycle owners
to change the A/F ratio on their own to a richer setting that improved
the performance concerns, but also possibly resulted in an exceedance
of the emissions standards. These emission standards were unchanged
until 2006 when more stringent standards for HC and new standards for
NOX were introduced for MY2008.
Off-highway motorcycles were unregulated until 2006. Beginning with
MY2006, off-highway motorcycles were required to meet emission
standards for HC, CO, and NOx emissions. In general, the overall
majority of motorcycles designed from 1978 through 2006 either used an
A/F ratio leaner than desired for maximum performance and durability to
comply with highway motorcycle emission standards or ran rich, in the
case of off-highway motorcycles, to help cool the engine and protect it
from overheating and failure. The practice of motorcycle owners
adjusting the A/F ratio to a richer setting to improve performance and
driveability was even more prevalent in the off-highway motorcycle
sector, especially for competition motorcycles where performance is an
important attribute.
As E10 fuel has become more prevalent in the marketplace, many
owners of off-highway and older highway motorcycles have chosen to
either operate their motorcycles on E0 fuel whenever it is available or
have modified their A/F ratio to a richer setting. In fact, the
internet is full of blogs of motorcycle owners discussing concerns with
operation on E10 fuel and ways to avoid these concerns, including how
to change the A/F ratio setting. It is a violation of the CAA to modify
a certified motorcycle from its certified configuration. Changing the
A/F ratio from the certified setting would be considered tampering, yet
it is clear it is practiced in-use.
For highway motorcycles designed to already operate leaner to
comply with emission standards, the use of E15 fuel would result in a
further leaning of the A/F ratio. These motorcycles were designed with
an optimized A/F ratio setting taking into consideration the delicate
balance of emissions, performance, and engine protection. Since most of
these motorcycles use carburetors, the A/F ratio is not easily adjusted
to adapt to the increased amount of oxygen in the A/F mixture. The
additional enleanment of the A/F ratio could cause an increase in
combustion temperature and ultimately engine temperature, potentially
resulting in an exceedance of the emission standards and engine
failure. For off-highway motorcycles that have typically been designed
to operate rich of stoichiometry for engine protection, the enleanment
of the A/F ratio could cause an increase in engine temperature beyond
what the engine was designed to accommodate and ultimately result in
engine failure. As a result of the increased enleanment resulting from
E15 fuel, more motorcycle owners may be tempted to adjust the A/F
setting of their motorcycles to protect vehicles from potential damage
resulting in possible exceedances of the emissions standards.
In either case, the use of E15 fuel could cause engine damage and
emission increases for highway motorcycles built prior to 2008 and for
all off-highway motorcycles, regardless of age. For highway motorcycles
built after MY2008 there is the possibility that some models may be
able to successfully accommodate the use E15 fuel. For MY2008 and
beyond, there are a number of models that use EFI and catalytic
converters. The systems are similar to automotive closed-loop catalyst
systems. However, one of the advantages to modern Tier 2 light-duty
emission control systems is that they use very sophisticated fuel trim
learning systems that allow a very precise ``learning and adapting'' of
changes to the A/F ratio mixture. While many of today's motorcycle
models use closed-loop systems, they do not have the advanced fuel trim
control of today's motor vehicles, meaning they would most likely not
be able to accommodate the enleanment of the A/F ratio in the same
manner as today's motor vehicles. Their closed-loop technology is more
similar to that of MY2000 and older motor vehicles than to current
motor vehicles.
In light of the above, while there is no actual E15 test data on
motorcycles, EPA believes that any operation of highway or off-highway
motorcycles on fuel containing E15 could result in engine damage and
emission increases for highway and off-highway motorcycles. It also
could have the unintentional result of encouraging motorcycle owners to
violate the CAA by tampering with the vehicles A/F ratio setting to
improve performance, driveability, and protect the engine from damage,
while at the same time significantly increasing hydrocarbon and CO
emissions. Therefore, we are proposing to prohibit the use of E15 in
all motorcycles (highway and off-highway) but seek comment on our
assessment.
F. Nonroad Engines, Vehicles, and Equipment (Nonroad Products)
1. Introduction
The nonroad product market is extremely diverse which makes it
difficult to determine what the impacts of E15 use might be. However,
similar to older motor vehicles, it appears that nonroad products may
experience emissions increases related to enleanment and material
compatibility issues if operated on E15. This is based in large part on
the history of the design of nonroad products operating on E10 in
relation to the age of those products in the field, and the
implications of
[[Page 68076]]
extrapolating this in-use operating experience with E10 to E15.
The majority of nonroad products are still carbureted, or have very
simplistic electronic fuel injection which cannot adjust the engine A/F
ratio, and do not have any onboard diagnostics to monitor engine
performance before components may fail. The experience of consumers
with E10 in nonroad products in the 1980s pushed most manufacturers to
take some steps to address enleanment and E10 material compatibility
issues at that time, either with changes in engine design or warnings
in consumer owner manuals (either to avoid ethanol blended fuels or
blends higher than 10%). However, the design practices and
recommendations varied across the industry due to the breadth of the
nonroad market (as highlighted in Table VI.F.1-1) and the wide range of
manufacturers, applications, and markets. The design practices also
continued to evolve over time in part due to emission regulations.\95\
While a review of current nonroad engine and equipment manufacturer Web
sites indicates a general acceptance of E10 use with the new products
being produced today, manufacturers continue to caution against any
higher level ethanol use, and marine manufacturers still caution
against E10 use.\96\ In addition, nonroad product manufacturers are
clearly still learning how to design for compatibility with E10 as
evidenced by a recent large recall of snowblowers due to corroded
carburetors.\97\
---------------------------------------------------------------------------
\95\ The first exhaust emission regulations for nonroad products
began with Small SI Engines in 1997 and the last onroad categories
of Marine Inboard/Sterndrive and Snowmobiles will meet their first
exhaust emission standards in 2010. The design changes to comply
with the standards tended to enlean the A/F ratio of new engines
compared to prior engines and limit the ability to manually adjust
the A/F ratio, so while newer engines may use materials better
suited for ethanol, they may also be more susceptible to enleanment
concerns.
\96\ See EPA-HQ-OAR-2010-0448, Submittal to Docket on Yamaha Web
site information.
\97\ See EPA-HQ-OAR-2010-0448, CPSC, Health Canada and Toro
snowblower recall.
Table VI.F.1-1--2010 Estimated Population of Nonroad Engines, Equipment and Vehicles
----------------------------------------------------------------------------------------------------------------
Estimated 2010 in-use population
Nonroad category Typical equipment/vehicles (millions)
----------------------------------------------------------------------------------------------------------------
Small SI Engine...................... Handheld: Trimmers, 131.
chainsaws, blowers, hedge
trimmers.
Nonhandheld: Lawnmowers,
generators, riding tractors.
Marine Outboard...................... Outboard engines to power 10.
fishing boats, pontoon boats.
Marine Sterndrive/Inboard............ Speed boats, Ocean going 2.
fishing boats.
Marine Personal Watercraft........... Jet skis, jet boats, etc..... 1.3.
All Terrain Vehicles................. Four wheelers................ 11.
Nonroad Motorcycles.................. Nonroad motorcycles.......... 2.6.
Snowmobiles.......................... Snowmobiles.................. 2.4.
Large SI............................. Fork Lifts................... 0.24.
On-Highway Motorcycles............... On-Highway Motorcycles....... 8 (2008 estimated population).
----------------------------------------------------------------------------------------------------------------
In addition, as shown in Table VI.F.1-2, consumers are still using
a considerable amount of older nonroad products (e.g., marine engines)
that are not necessarily designed for E10 use. In recognition of this
situation, States such as Minnesota, Missouri, Oregon, and Washington
that have mandated the use of ethanol blends have also provided
exceptions to the mandate for sale of ethanol free gasoline (E0) for a
variety of nonroad products. In addition, Oregon has taken the
additional step of publishing a list of retail stations distributing E0
to assist their nonroad consumers in locating it.\98\
---------------------------------------------------------------------------
\98\ See EPA-HQ-OAR-2010-0448, Oregon State Government Non-
Ethanol Fuel Supplier Listing.
Table VI.F.1-2--2010 Estimated Active Nonroad Product Population
------------------------------------------------------------------------
Nonroad SI,
excluding Marine SI
Sales years marine SI (thousands)
(thousands)
------------------------------------------------------------------------
2007-2010............................... 98,255 3,155
2003-2006............................... 39,466 2,953
1999- 2002.............................. 7,245 2,484
1995-1998............................... 1,253 1,828
1991-1994............................... 475 1,215
1987-1990............................... 208 656
1983-1986............................... 72 348
1979-1982............................... 28 177
1975-1978............................... 18 100
1971-1974............................... 11 50
1967-1970............................... 6 23
1963-1966............................... 3 10
-------------------------------
Total............................... 147,040 12,999
------------------------------------------------------------------------
Source: UnEPA Nonroad8a model.
[[Page 68077]]
2. Enleanment
Given the relatively undeveloped technological design of the
nonroad product fleet for purposes of emissions control, one of the
main concerns with the use of E15 in nonroad products, as for older
motor vehicles, is the increased temperatures caused by enleanment of
the A/F ratio. With higher levels of ethanol, the stoichiometric
(ideal) A/F ratio becomes lower (i.e., more fuel is needed for the same
amount of air) due to the increased oxygen in the fuel; hence, the
nonroad products run leaner since they do not adjust to the fuel oxygen
content. Engines designed to operate on non-ethanol fuels (0 wt%
oxygen) are currently operating on E10, which typically contains about
3.5-3.7 wt% oxygen, and would operate on approximately 5.5 wt% oxygen
when operating on E15. As evidenced by various studies,\99\ enleanment
has an immediate impact on emissions, causing HC and CO emissions to
decrease and NOX emissions to increase. However, since the
HC and NOX impacts are directionally opposite, these
immediate impacts are of less concern than the impacts of long-term
operation and durability. Leaner operation increases cylinder and
exhaust temperatures that can lead to overheating of the engine. In
some cases this can lead to expansion of the engine block and pistons
and result in a seized engine. Increased combustion temperature can
also result in expansion and contraction of the engine block and head
metals which leads to loosening of the head bolts. With looser bolts,
the gap between the engine block and the head will open and the head
gasket can get damaged, which in turn damages other engine components
(e.g., intake and exhaust valves, manifolds, etc.) which can result in
increased emissions and potential engine failure.
---------------------------------------------------------------------------
\99\ ``Effects of Intermediate Ethanol B lends on Legacy
Vehicles and Small Non-Road Engines, Report 1'', NREL/TP-540-43543
and ORNL/TM-2008/117, October 2008.
---------------------------------------------------------------------------
The likelihood that nonroad products may experience such issues
with E15 is difficult to quantify. However, limited testing by DOE
\100\ showed some engine failures with E15, and this is not entirely
unexpected since nonroad products are particularly prone to enleanment
for several reasons. First, nonroad products remain primarily
carbureted and/or have open loop fuel control.\101\ This means they do
not have the ability to self-adjust the A/F ratio in-use for the
presence of ethanol in the fuel. The amount of enleanment an engine
experiences in-use depends on several factors, including manufacturing
variability, engine wear, and, importantly for E15, the A/F ratio
setting of the engine in comparison to the setting needed for the fuel
the engine is operating on. Engine manufacturers set the A/F ratio
settings at the time of production based on a number of factors
including the emission standards, expected deterioration of emissions
over time and the emission certification fuels.\102\ In-use engines are
Federally certified on E0, while engines certified to California
standards are certified on an MTBE blend (the equivalent oxygen content
of about E6 or about 2.0 wt% oxygen).\103\ Thus, when nonroad products
switch to using E10 in the field, they operate leaner than they were
set to operate and would operate leaner still on E15. Older nonroad
products may have more headroom to tolerate enleanment from ethanol
than newer engines. This is because manufacturers have tended to set
the A/F ratio for their newer engines closer to stoichiometry (less
rich) to meet newer, more stringent emission standards in recent
years.\104\ Second, the majority of nonroad products are air-cooled
(rely on fins designed into the engine block to dissipate heat and some
have a fan to aid in cooling) and fuel-cooled (rely on rich operation -
excess fuel--to cool certain engine components like exhaust valves and
manifolds). Thus, they are much less forgiving of temperature increases
that might result from enleanment. Third, nonroad products frequently
operate at wide open throttle for much of their duty cycle where
exhaust temperatures are highest.
---------------------------------------------------------------------------
\100\ ``Effects of Intermediate Ethanol B lends on Legacy
Vehicles and Small Non-Road Engines, Report 1'', NREL/TP-540-43543
and ORNL/TM-2008/117, October 2008.
\101\ Of the nearly 1200 gasoline-fueled nonroad engine families
certified in 2010, only 36 are estimated to have closed loop
electronic fuel injection, and most of those are large spark-ignited
nonroad engines.
\102\ Older nonroad products--those prior to emission
standards--tended to have A/F ratio adjustment screws so
knowledgeable consumers or maintenance facilities could adjust the
A/F ratio of the engine if it operating poorly. Manufacturers tended
to remove or limit the capability for such manual adjustments to
meet emission standards.
\103\ Standards for some nonroad categories which require
evaporative emission certification on E10 and allow it as an option
for exhaust are just beginning to phase in.
\104\ Some engines have been under emission regulation for 13
years while others are just falling under emission regulation. In
order to meet EPA emission standards, engines have either been
enleaned and/or taken on engine designs of a more efficient engine
such as a 4 stroke engine.
---------------------------------------------------------------------------
Additionally, as enleanment occurs, the potential for an engine to
reach its lean limit is increased. A lean limit is found when the
typical emissions trend for enleanment (decreased HC and CO emissions
and increased NOX emissions) reverses and results in
increased HC and CO and decreased NOX. The reversal of
emissions at the lean limit is a signal the engine is starting to
experience incomplete combustion and is beginning to experience
misfires, hence the increases in HC. This often results in engine
failure since the engine cannot operate for an extended period of time
under this condition. Results from a DOE pilot study on small SI
nonroad products confirmed the potential enleanment concerns.\105\
Several engines failed prior to reaching their full useful life, and
the emission results for one of these (a consumer market trimmer)
indicated that it indeed may have exceeded its lean limit when
operating on E15.
---------------------------------------------------------------------------
\105\ ``Effects of Intermediate Ethanol B lends on Legacy
Vehicles and Small Non-Road Engines, Report 1'', NREL/TP-540-43543
and ORNL/TM-2008/117, October 2008.
---------------------------------------------------------------------------
Finally, as highlighted above in VI.C., catalysts are an emission
reduction technology that is sensitive to increases in exhaust
temperature that would result from the use of E15. Although not yet
commonly found on nonroad products, they began phasing-in on small SI
handheld engines in 2002. High exhaust temperatures are already a
concern with these catalysts due to the close location of the catalyst
to the combustion chamber (catalysts are located within the muffler
which is commonly attached to the engine block). The hotter combustion
temperatures from engine enleanment result in hotter exhaust
temperatures experienced by the catalyst and can increase the
likelihood of catalyst washcoat sintering. If sintered, the catalyst
becomes nearly useless. The likelihood that an engine/catalyst setup
would reach this state is dependent on the engine/catalyst design and
the production variability. Both of these vary from engine manufacturer
to engine manufacturer and engine to engine.
These potential enleanment problems would also impact the emission
performance of engines operated on E15 over their full useful life.
Unfortunately, emissions data from nonroad products operated over their
full useful life on E15 is very limited and currently is known only to
exist for the small spark-ignition sector of nonroad engines. DOE
performed a pilot and durability study on four small SI engine models
operated
[[Page 68078]]
on E10 and E15.\106\ The HC emissions from a commercial string trimmer
engine were considerably higher after operation over the full useful
life on E15 in comparison to E10 (191% vs. 101% increases in HC).
Hydrocarbon emissions were similarly increased on a commercial
generator with E15 vs. E10 when tested over their full useful life (47%
increase for HC on E15 vs. 4.7% increase for E10) and for a consumer
power washer (150% increase on E15 vs. a 44% increase for E10 \107\ The
consumer blower engines tested did not make it to aging at full useful
life on E15. The blower engines did have catalysts, however, the study
was not able to analyze its effectiveness over time. If the catalyst on
the blower was to fail and the engine continued to operate, then the
engine could have emitted almost the same emissions as pre-regulation
engines (e.g., 100-120 g/kW-hr without a catalyst vs. 50 g/kW-hr with a
catalyst). Thus, while it was only a small test sample, it is clearly
suggestive that exhaust emissions may increase considerably with E15
over the full useful life of the engines. Furthermore, while the study
was only conducted on the small SI segment of the nonroad market, the
similarities between it and most other segments of the nonroad market
would raise similar concerns.
---------------------------------------------------------------------------
\106\ ``Effects of Intermediate Ethanol B lends on Legacy
Vehicles and Small Non-Road Engines, Report 1'', NREL/TP-540-43543
and ORNL/TM-2008/117, October 2008.
\107\ The NOX emission results on commercial engines
change less over time on E15 compared to E10, however they start at
a higher value at new engine condition on E15. (ref: ``Effects of
Intermediate Ethanol B lends on Legacy Vehicles and Small Non-Road
Engines, Report 1'', NREL/TP-540-43543 and ORNL/TM-2008/117, October
2008.)
---------------------------------------------------------------------------
3. Material Compatibility and Corrosion
Materials used in engine and fuel system components (e.g. metals,
plastics, and rubbers) must be compatible with the full range of
expected fuel compositions. Any deterioration of materials could result
in loss of function of critical engine components, which can result in
emissions increases from fuel leaks and equipment failure. Nonroad
products do not have onboard diagnostics to detect these conditions and
report it to the user prior to engine failure. Not much is known about
the use of E15 in nonroad products in real world use. However, concern
exists because, as discussed above in section VI.B., ethanol has
different material compatibility characteristics than gasoline, and
even products operating adequately on E10 today may have issues with
E15. In addition, the vast range of nonroad product designs and
technologies over the years indicates that material incompatibility may
exist in portions of the in-use fleet when using E15.
Motor vehicle manufacturers, as discussed in section VI.G, were
driven by both market forces and EPA emission standards to redesign
motor vehicles and upgrade materials for continual use of E10. This is
not the case for nonroad products. We are not aware of any standard
design practices self imposed by industry in relation to the presence
of ethanol in gasoline either in the early 1980s with gasohol in the
Midwest or in the 2000s as gasoline-ethanol blends expanded nationwide.
As a result, it appears that manufacturers used a variety of approaches
at different points in time in response to market conditions. One
reason for this is that the nonroad market serves a wide range of
consumers--the low cost consumer quality and the higher cost
professional quality--and the target market may govern how decisions
are made. Another reason is the vast diversity of nonroad products as
discussed above. The wide range of engines, applications,
manufacturers, and markets leads to a wide range of equipment design
practices. Finally, some manufacturers of nonroad vehicles and
equipment may purchase another manufacturer's engine and modify it and/
or its fuel system for a different application (e.g. purchasing a small
SI engine and replacing the fuel tank with a different design so it
fits in the equipment, or marinizing an automotive engine for use as a
marine engine and recertifying). Since there have been no evaporative
requirements for small SI engines until the Phase 3 standards
(beginning in 2009), in prior years the hoses and tanks could be
changed without concern. Consequently, even engine fuel systems
designed for the presence of ethanol by the original engine
manufacturer may be compromised by the vehicle/equipment manufacturer.
Thus, it is very difficult to quantify the volume of nonroad products
in today's fleet designed to operate on E10 let alone E15. As shown in
Figure VI.A-1, since E10 now represents more than 80% of the gasoline
market, it is clearly being used in nonroad products today. However, as
shown in Figures VI.A-3 and VI.A-4 the expansion of E10 nationwide is
still a relatively recent event and the effects we are focused on are
effects from longer term use of the fuel.
Based on manufacturer Web sites and owner's manual recommendations,
most new nonroad products produced today are designed to be compatible
with E10. The main exceptions are marine applications (as well as
aircraft, which are not nonroad for purposes of section 211(c), but in
some cases use the same gasoline as nonroad products). The transition
appears to have occurred at different points in time across the market.
However, this is not to say that these engines have been designed to be
compatible with E15. The effects of ethanol are time and concentration
dependent such that the effects of E15 may be more severe than E10 on
materials. Consequently, manufacturers, while approving the use of E10
today, now also warn against the use of any higher gasoline-ethanol
blends.
Unlike motor vehicles, most nonroad products are used periodically
and not for daily tasks. Many of these products are designed to be
inexpensive consumer products that last a relatively short time or are
used irregularly and for short periods of time. However a considerable
fraction may remain in the in-use fleet for a long time (10-40+ years).
Table VI.F.1-2 shows an estimated age distribution of nonroad products
in 2010. Marine engines are separated in the table to illustrate the
fact that these products in particular remain in the fleet for many
years. Consequently, even if nonroad products today are designed by the
manufacturer for the presence of 10% ethanol in the gasoline, a large
number of pieces of equipment still exist in the field from model years
when ethanol was not present in gasoline, or was just beginning to be
introduced into the fuel stream. Based on subsequent experience, some
of this equipment may operate fine on E10, while others may have
complications due to the enleanment or material incompatibility effects
of using ethanol.
There have been several attempts to study the material
compatibility of E15 use in nonroad engines, vehicles and equipment.
However, the broad range of equipment and designs over time make it
extremely difficult to do any definitive study on the nonroad sector
that would address the entire fleet. A literature and information
search prepared by the University of Minnesota Center for Diesel
Research outlines a number of the concerns with ethanol that could be
experienced with E15.
--Corrosion of steel is accelerated by the presence of alcohols in the
fuel, both because the ethanol itself is considered to be more
corrosive but also because it is a solvent that removes oils and
coatings from the surface that might protect against corrosion. In
addition, ethanol attracts and mixes with water which is also corrosive
and tends to create a slightly acidic solution, especially over time.
[[Page 68079]]
--Elastomers exposed to higher gasoline-ethanol blends over time can
increase in weight gain, swell, soften and increase in hardness when
dried and as a result lose tensile strength, causing fuel pumps and
fuel lines to fail. For fuel hoses, swelling and softening creates a
risk of failure of the joints. The swelling and softening of O-rings,
seals and gaskets causes a risk of damage or incorrect fit of the seal
during assembly of joints leading to fuel leakage.
--Seals and gaskets on equipment that have not been previously exposed
to higher alcohol fuels could deteriorate and break down creating
leakage.
--Fiberglass-reinforced plastic fuel tanks, such as those on marine
engines and motorcycles, may also experience problems depending on the
type of resin and how much the ethanol will contribute to the corrosion
of it.
--Materials such as lead/tin-coated steel used in fuel tanks and
aluminum fuel system components require corrosion inhibitors due to the
presence of the higher alcohol in E15.
In addition, four studies have been reported which tested the
effect of a number of ethanol containing fuels (E10, E20) on materials
compatibility of polymers, metal, and elastomers in motor vehicles and
nonroad engines. While none of these studies reported on E15, a number
of reports gave conditions seen on E10 and E20 and so results for E15
can be interpolated. The results of one technical assessment, published
in 2002,\108\ of E10 and E20 on two 2-stroke engines indicated
materials compatibility concerns for E20 for both engine types,
including effects on some polymeric materials that were deemed
unacceptable and E20 tarnishing and corroding brass and aluminum parts.
Similarly, three other studies conducted by the University of Minnesota
published in 2008 on metal, plastic, and elastomer materials,
respectively,109, 110, 111 used in highway vehicles and
nonroad products found a variety of impacts with E20 relative to E10 or
E0, including clear incompatibility with some materials. The existence
of such materials on equipment in the in-use fleet could lead to
increased emissions, fuel leaks, and potentially engine failure from
longer term use of E15. The degree to which such incompatible materials
exist in the in-use fleet is unknown, but it is clear that they do
exist based on in-use experience with E10.112, 113
---------------------------------------------------------------------------
\108\ ``A Technical Assessment of E10 and E20 Petrol Ethanol
Blends Applied to Non-Automotive Engines. Failure Mode and Effects
Analysis of Engine Function and Component Design for Mercury Marine
15hp Outboard and Stihl FS45 Line-Trimmer Engines,'' conducted by
Orbital Engine Company, Report to Environment Australia, November
2002.
\109\ ``The Effects of E20 on Metals Used in Automotive Fuel
System Components,'' by Bruce Jones, Gary Mead, Paul Steevens and
Mike Timanus, Minnesota Center for Automotive Research at Minnesota
State University, Mankato, February 22, 2008.
\110\ ``The Effects of E20 on Elastomers Used in Automotive Fuel
System Components,'' by Bruce Jones, Gary Mead, Paul Steevens, and
Mike Timanus, Minnesota Center for Automotive Research at Minnesota
State University, Mankato, February 22, 2008.
\111\ ``The Effects of E20 on Plastic Automotive Fuel System
Components,'' by Bruce Jones, Gary Mead, and Paul Steevens,
Minnesota Center for Automotive Research at Minnesota State
University, Mankato, February 21, 2008.
\112\ http://www.fuel-testers.com/marine_e10_bad_gas_reports.html.
\113\ http://www.sail-world.com/USA/index.cfm?SEID=0&Nid=38442&SRCID=0&ntid=0&tickeruid=0&tickerCID=0.
---------------------------------------------------------------------------
We are not aware of any testing that has been done that might help
quantify the potential impact on emissions from the types of engine
problems that would result from material compatibility problems.
However on July 14, 2010 the United States Consumer Protection Safety
Commission (CPSC) and Health Canada (HC) announced a recall of Toro
snowblowers stating that ``Exposure to ethanol in gasoline can cause
the carburetor needle to become corroded. A corroded needle can stick
in the open position and allow fuel to leak from the carburetor.''
\114\ Clearly fuel leaks would result in a considerable increase in
evaporative emissions, and material issues with carburetors, fuel
pumps, and other engine components could clearly lead to significant
changes in exhaust emissions, if not engine survivability.
---------------------------------------------------------------------------
\114\ See EPA-HQ-OAR-2010-0448, CPSC, Health Canada and Toro
snowblower recall.
---------------------------------------------------------------------------
4. Phase Separation and Solvency/Detergency
Two additional concerns with E10 use in nonroad products are phase
separation and solvency/detergency (see section VI.B.). However, if
nonroad products have already been operating on E10, the degree to
which these would be a concern with E15 is unknown. Phase separation
occurs if a gasoline-ethanol blend is saturated with water. Phase
separation is more likely in nonroad products due to the fact that
these engines are typically used only seasonally or occasionally
throughout the year and in the case of marine applications, the
equipment is generally in a humid, water environment. In addition,
specifically for small SI engines, some of the fuel systems are open to
the atmosphere through a direct vent in the gas cap which exposes the
fuel to air and humidity. If phase separation occurs, it has been
reported by repair shops to be acidic and result in corroded
carburetors and potential fuel line leaks. However, while phase
separation has been and continues to be a significant concern with E10,
as evidenced by ongoing guidance on manufacturer literature \115\ and
nonroad engine Web sites,\116\ the additional ethanol in E15 would
increase the water tolerance of the blend and thereby potentially
reduce the frequency of phase separation occurring.
---------------------------------------------------------------------------
\115\ See EPA-HQ-OAR-2010-0448, Collection of manufacturer
literature from 1980 to present.
\116\ See EPA-HQ-OAR-2010-0448, Submittal to Docket on Yamaha
Web site information.
---------------------------------------------------------------------------
Similarly, in areas that have transitioned to E10, problems have
historically also shown up in repair shops due to the solvency/
detergency characteristics of ethanol. Ethanol has been known to
dislodge sludge and varnish in the fuel system, causing it to clog fuel
filters and carburetors. However, if in-use engines have already been
operated on E10, the cleansing effect of the ethanol may have already
occurred, and transitioning to E15 may not result in any additional
problems.
G. Model Year 2007 and Newer Light-Duty Motor Vehicles
MY2007 and newer light-duty motor vehicles are covered by EPA's
Tier 2 program which established dramatically more stringent
NOX standards. While the program allowed the standards to
phase in from MY2004 through MY2009, manufacturer certification data
show that gasoline-fueled motor vehicles actually reached full
implementation with MY2007. MYs 2004-2006 included a mix of vehicles--
some Tier 2 and some non-Tier 2. Tier 2 motor vehicles are more
technologically advanced and robust than cars built years ago, are
fully capable of running on E10, and must have their evaporative
emission systems aged on E10 for durability purposes. Sophisticated
computer systems and sensors constantly monitor the engine and the
exhaust to be sure that everything (i.e., the A/F ratio mixture) is
kept at its optimum level. All auto manufacturers now warrant their new
motor vehicles to operate on E10 or less. As found in the E15 waiver
decision also published today, we believe on the basis of testing
performed and our own engineering assessment, that these MY2007 and
newer Tier 2 light-duty motor vehicles are durable and will maintain
their emission performance when operated on E15.
To evaluate the impacts of E15 on Tier 2 motor vehicles, DOE
performed a
[[Page 68080]]
catalyst durability test program \117\ on 19 Tier 2 motor vehicles from
high sales volume models produced by the various light-duty vehicle
manufacturers throughout 2009 and 2010. The specific purpose of the
test program was to evaluate the long term effects of E0, E10, E15, and
E20 on catalyst system durability. However, a number of the motor
vehicles were also torn down and evaluated for any other impacts E15
may have had, including material compatibility in the fuel and
evaporative emission control systems. As discussed in the waiver
decision document, program results indicate that the changes
manufacturers made (calibration, hardware, etc.) to their motor
vehicles to comply with the Tier 2 standards have enabled the motor
vehicles to operate satisfactorily on E15, including the ability of
their catalysts to withstand the additional enleanment caused by E15.
---------------------------------------------------------------------------
\117\ Catalyst Durability Study, Department of Energy/
Coordinating Research Council Report: E-87-2, September 2010.
---------------------------------------------------------------------------
The DOE test program was critical in supporting the waiver
decision. However, it also serves to confirm our engineering assessment
of the ability of light-duty motor vehicles to handle E15. The emission
standards that EPA has implemented over time affecting motor vehicles
have become more and more stringent (i.e., Tier 0 to Tier 1 to LEV1 and
NLEV to Tier 2 and LEV2). In addition, full useful life requirements
have increased and new test cycles have been added. To comply with the
stringent Tier 2 standards, manufacturers must minimize deterioration
of their vehicle emission control systems over a vehicle's full useful
life of 120,000 miles. By MY2004, new test procedures took effect to
better represent actual consumer driving habits and conditions. These
additional test cycles, coupled with the in-use testing required under
the Compliance Assurance Program (CAP2000), pushed manufacturers to
develop more robust emissions control systems (such as systems using
wide range oxygen sensors) capable of withstanding the higher
temperatures experienced during these more severe cycles without simply
relying on enriching of the A/F ratio, causing emissions to rise. With
each new program, manufacturers were required to improve the efficiency
and durability of emission control hardware and the methods and control
systems governing hardware performance causing newer motor vehicles to
be able to accommodate gasoline-ethanol blends more so than older motor
vehicles.
Perhaps the most critical changes made over time were the changes
to the engine calibrations and catalyst systems to accommodate changes
in the A/F ratio such as those that occur when switching to operation
on gasoline-ethanol blends. Evolution in emission standards prompted
corresponding evolution in motor vehicle emission control systems. In
particular, catalyst deterioration must be minimized and catalyst
temperatures controlled during all vehicle operation modes for the
catalyst to work properly (i.e., for it to maintain the necessary high
efficiency demanded by the Tier 2 standards). Tier 2 motor vehicles,
especially the MY2007 and newer motor vehicles, have improved hardware
as well as more sophisticated emission control systems and strategies
to help maintain catalyst effectiveness, and an extended motor vehicle
operating range over which emissions performance must be maintained.
MY2007 and newer motor vehicles have the ability to precisely adjust
for changes in the A/F ratio and ultimately maintain peak catalyst
efficiency under almost any condition, such as exposure to oxygenated
fuels like those containing ethanol. To do so, some manufacturers
incorporated learned or adaptive fuel trim into their motor vehicle
designs to modulate the A/F ratio and alleviate catalyst temperature
increases even under open loop conditions. Others, through careful
hardware selection and certain calibration approaches, have motor
vehicle designs with higher thermal margins to accommodate the effects
of enleanment with gasoline-ethanol blends.
Prior to completion of the DOE catalyst durability test program
some concern had been expressed that when operated on E15, vehicles,
even Tier 2 motor vehicles that did not apply learned fuel trim, may
experience catalyst degradation and higher emissions over time due to
the higher exhaust temperatures it may cause. Several screening studies
had measured exhaust and catalyst temperature and/or evaluated the
ability of vehicles to apply learned fuel trim to adjust for the
enleanment due to ethanol during open loop operation.\118,\ \119\ They
had found that those vehicles that did not apply learned fuel trim
tended to experience higher catalyst and exhaust temperatures when
operated on E15. However, as evidenced by the DOE catalyst durability
test program, at least for Tier 2 motor vehicles this does not appear
to be the case. Even those vehicles that do not apply learned fuel trim
appear to have sufficient thermal margins. Therefore, not only do all
manufacturers warrant their Tier 2 motor vehicles for operation on E10,
but as discussed in the waiver decision document, we believe that they
will also operate properly on gasoline-ethanol blends up to E15.
---------------------------------------------------------------------------
\118\ Mid-level Ethanol Blends Catalyst Durability Study
Screening, Coordinating Research Council Report: E-87-1, June 2009.
\119\ Effects of Intermediate Ethanol Blends on Legacy Vehicles
and Small Non-road Engines, Report 1--Updated, National Renewable
Energy Laboratory, February 2009.
---------------------------------------------------------------------------
With respect to evaporative emissions control, evaporative systems
have had leak detection diagnostic requirements since at least MY2000
as a result of the Agency's Onboard Diagnostic (OBD) program. In
addition, CAP2000 which took effect with MY2001 motor vehicles placed
more emphasis on the ``in-use'' performance of motor vehicle emission
controls with motor vehicles operating nationwide on the different
available fuels. This emphasis on real world motor vehicle testing
prompted manufacturers to consider different available fuels, including
gasoline-ethanol blends, when developing and testing their emission
systems. However, even with the CAP2000 requirements, some materials
issues continued to arise during in-use emissions testing.
Consequently, as part of the new Tier 2 standards, EPA added the
requirement that the evaporative control system and all related
components (i.e. fuel tanks, fuel lines, etc.) demonstrate durability
over their full useful life while operating on E10. Due to this new
requirement, materials that would compromise evaporative emission
compliance over the full useful life with exposure at E10 levels were
eliminated as options for fuel system components. This requirement,
coupled with much more stringent evaporative emission standards (over a
50% reduction for passenger cars and light trucks), was phased-in with
the Tier 2 exhaust standards. Prior to Tier 2, materials are believed
to have also been selected for ethanol compatibility but perhaps not
for continuous exposure over the full useful life. Based on
conversations with original equipment manufacturer parts suppliers, it
is our understanding that in designing materials for continuous E10
exposure, they tested materials, components, and systems using ethanol
levels in excess of 20% to ensure compatibility with E10. Consequently,
Tier 2 motor vehicle designs should also be designed to be compatible
with E15, and the results of the DOE catalyst durability test program
served to confirm this belief.
[[Page 68081]]
H. Model Year 2001-2006 Motor Vehicles
For MY2001-2006 motor vehicles, both our engineering assessment and
the available data make it less clear whether motor vehicles produced
during those model years could have emission increases from long-term
fueling with E15 like MY2000 and older motor vehicles or whether they
would continue to function properly like MY2007 and newer motor
vehicles. On the one hand, we believe that many of the same elements
for ethanol compatibility of MY2007 and newer motor vehicles also apply
to these motor vehicles (e.g., designing to enhanced evaporative
emission standards, SFTP, CAP2000). On the other hand, they were not
all required to demonstrate evaporative emission system durability on
E10 or to upgrade their catalyst and emission control systems to the
extent needed to comply with the Tier 2 standards. The NLEV standards
that began phasing in with MY2001 required improvements in closed loop
A/F ratio control and catalyst efficiency, but the Tier 2 standards
represented a considerable step change beyond NLEV. Furthermore, as
discussed below, while there are some ongoing test programs evaluating
the effects of E15, we do not yet have sufficient data that would serve
to confirm or deny any engineering analysis of the situation, and in
particular to address the potential concerns raised over those motor
vehicles that do not apply learned fuel trim during open loop
operation.
Two studies that might help inform the situation are currently
still in process. The Rochester Institute of Technology is conducting a
study of 10 motor vehicles spanning MY1998-2004 on E20 and is operating
roughly 300 motor vehicles in-use on E20.\120\ While the results of
this study to date suggest vehicles may operate acceptably on E20--and
by interpolation E15--mileage accumulation is limited, so its ability
to assess emission impacts over the FUL of the vehicles is also
limited. In addition, since there are no control vehicles operating on
E0, comparisons of emission effects are restricted. The study is
ongoing until November 2010. In addition, DOE is in the process of
conducting catalyst durability testing on six motor vehicles certified
to NLEV standards and two motor vehicles certified to Tier 1 standards
which will also be completed by November. Since the motor vehicles are
older, they are starting the test program with a significant number of
miles already driven by consumers on E0. However, at least 50,000 miles
are being accumulated on each motor vehicle, and identical motor
vehicles of the same model are being tested on E0, E10, E15, and E20.
---------------------------------------------------------------------------
\120\ The effect of E20 ethanol fuel on vehicle emissions, B
Hilton and B Duddy, Center for Integrated Manufacturing Studies,
Rochester Institute of Technology, June 26, 2009.
---------------------------------------------------------------------------
I. Emissions Impact Summary and Conclusions
As discussed above, the potential exists for E15 use to cause long-
term or permanent increases in exhaust emissions from MY2000 and older
light-duty motor vehicles, heavy-duty gasoline engines and vehicles,
motorcycles, and nonroad products, as a result of accelerated
deterioration of engine and emission control components. This
deterioration can be a result of changes in engine operation, such as
higher exhaust temperature, or damage to materials not compatible with
E15. Similarly, evaporative emission increases may occur immediately
due to increased permeation or over time due to repeated or on-going
exposure of the fuel and evaporative emission control systems to E15.
In some cases the potential emission impacts could be quite dramatic
(i.e., more than an order of magnitude) given the large differences
between controlled and uncontrolled emissions on today's light-duty
motor vehicles, heavy-duty gasoline engines and vehicles, motorcycles,
and nonroad products. Consequently, the in-use emissions increases and
air quality impact could be substantial for any of these products that
experience very significant deterioration.
While it is not possible to quantify the frequency at which all of
these products might experience problems with the use of E15, the
degree of emissions increases associated with them, or the
effectiveness of the proposed misfueling mitigation measures, we
believe that the emission related problems would occur with enough
frequency that the resulting emission benefits from the avoided
misfueling would clearly outweigh the relatively low cost imposed by
the proposed regulations. The emission benefits are the emissions
increases from longer term use of E15 that would not occur because of
this misfueling mitigation program. This is particularly the case
considering the significant consumer savings for avoided repairs and
replacement that, as discussed in section III.F., would by themselves
be expected to exceed the costs of the misfueling mitigation measures.
For these reasons, the Agency proposes to prohibit the use of
gasoline blended with greater than 10 vol% ethanol in (1) MY2000 and
older motor vehicles, (2) heavy-duty gasoline engines and vehicles, (3)
motorcycles, and (4) nonroad products. Today's prohibitions and other
requirements are intended to reduce emissions due to the use of E15 in
the group of vehicles or engines reasonably expected to have these
adverse effects. The term misfueling describes use of E15 in the
prohibited engines, vehicles and equipment listed above. We are
inviting comment on whether this prohibition should also apply for
MY2001-MY2006 motor vehicles.
VII. What is our legal authority for proposing these misfueling
mitigation measures?
As explained above, we are proposing misfueling mitigation measures
pursuant to our authority under CAA section 211(c)(1). This section
gives EPA authority to ``control or prohibit the manufacture,
introduction into commerce, offering for sale, or sale'' of any fuel or
fuel additive (A) whose emission products, in the judgment of the
Administrator, cause or contribute to air pollution ``which may be
reasonably anticipated to endanger public health or welfare'' or (B)
whose emission products ``will impair to a significant degree the
performance of any emission control device or system which is in
general use, or which the Administrator finds has been developed to a
point where in a reasonable time it would be in general use'' were the
fuel control or prohibition adopted. Under section 211(c)(1), EPA may
adopt a fuel control if at least one of the two criteria above are met.
We are proposing the misfueling mitigation measures based on both of
these criteria. Under section 211(c)(1)(B), we believe that E15 would
significantly impair the emission control systems used in MY2000 and
older light-duty motor vehicles, heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products. This leads us to conclude, under section 211(c)(1)(A), that
the likely result would be increased HC, CO and NOx
emissions when these particular engines, vehicles and nonroad products
use E15. The following sections summarize our analysis of each
criterion.
A. Health and Welfare Concerns of Air Pollution Caused by E15
We believe that the emissions products of E15 contribute to air
pollution that can reasonably be anticipated to endanger public health
and welfare. As described in Section VI.B., the unique physical and
chemical
[[Page 68082 ]]
properties of ethanol may negatively impact certain engines, vehicles
and equipment when those products use gasoline-ethanol blends
containing increased amounts of ethanol, particularly if those engines,
vehicles and equipment are not designed for accommodating that
increase. The result is likely an increase in HC, CO and NOx emissions
from these engines, vehicles and equipment (see Sections VI.C.-F.).
This potential increase in emissions of these particular pollutants
contributes to air pollution levels that, for example, can violate the
NAAQS for ozone or PM.
Section 211(c)(2)(A) requires that, prior to adopting fuel controls
based on a finding that the fuel's emission products contribute to air
pollution that can reasonably be anticipated to endanger public health
or welfare, EPA consider ``all relevant medical and scientific evidence
available, including consideration of other technologically or
economically feasible means of achieving emission standards under
[section 202 of the Act].'' EPA's analysis of the evidence relating to
the emissions impact of emissions from E15 is described in Section VI
above, while the evidence concerning the NAAQS is discussed in the
NAAQS rulemakings themselves.
EPA has also satisfied the statutory requirement to consider
``other technologically or economically feasible means of achieving
emission standards under section [202 of the Act].'' This provision has
been interpreted as requiring consideration of establishing emissions
standards under section 202 prior to establishing controls or
prohibitions on fuels or fuel additives under section 211(c)(1)(A). See
Ethyl Corp. v. EPA, 541 F.2d 1, 31-32 (DC Cir. 1976). In Ethyl, the
Court stated that section 211(c)(2)(A) calls for good faith
consideration of the evidence and options, not for mandatory deference
to regulation under section 202 compared to fuel controls. Id. at 32,
n.66. For MY2000 and older motor vehicles, proposing emissions
standards under section 202 is not an option since emissions standards
promulgated under section 202 only apply to new motor vehicles. This is
also true for the other categories (heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products) to the extent these products are already in the marketplace.
Thus, for all of these products, the proposed measures under section
211(c)(1) are appropriate for addressing misfueling. Additionally, EPA
has previously promulgated the most technologically and economically
feasible HC, CO and NOX emissions standards for all of these
engines, vehicles and equipment, so new emissions standards under
section 202 for any of these products would not achieve any additional
protection beyond those obtained through the misfueling mitigation
measures being proposed today under section 211(c)(1).
It is therefore appropriate for EPA to exercise its authority under
section 211(c)(1)(A) and propose these misfueling mitigation measures
that will likely reduce or eliminate the emissions products from E15
that contribute to the air pollution that endangers our public health
or welfare.
B. Impact of E15 Emission Products on Emission Control Systems
EPA believes that E15 can significantly impair the emissions
control technology in MY2000 and older light-duty motor vehicles,
heavy-duty gasoline engines and vehicles, highway and off-highway
motorcycles, and all nonroad products. As discussed in Section VI
above, ethanol enleans the A/F ratio; this may lead to emissions
products that can cause increased exhaust gas temperatures and, over
time, incremental deterioration of emission control hardware and
performance. Enleanment can also lead to catalyst failure.
Additionally, ethanol can cause material compatibility issues which may
lead to other component failure. Ultimately, all of these impacts would
likely significantly impair the emissions control systems or devices
and lead to exhaust and/or evaporative emission increases.
Section 211(c)(2)(B) requires that, prior to adopting a fuel
control based on a significant impairment to emission control systems,
EPA consider available scientific and economic data, including a cost
benefit analysis comparing emission control devices or systems which
are or will be in general use that require the proposed fuel control
with such devices or systems which are or will be in general use that
do not require the proposed fuel control. This provision is not
applicable to the proposed misfueling mitigation measures since a
particular emission control device or system is not required for use
with the measures being proposed today. Instead, the misfueling
mitigation measures are being proposed to protect existing controls on
existing engines, vehicles and equipment already in the marketplace
from the detrimental impacts they may incur when using E15.
Thus, EPA may exercise its authority under section 211(c)(1)(B) and
propose these misfueling mitigation measures since use of E15 would
significantly impair the emission control devices or systems in MY2000
and older light-duty motor vehicles, heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products.
C. Effect of Misfueling Mitigation Measures on the Use of Other Fuels
or Fuel Additives
Section 211(c)(2)(C) requires that, prior to prohibiting a fuel or
fuel additive, EPA establish that such prohibition will not cause the
use of another fuel or fuel additive ``which will produce emissions
which endanger the public health or welfare to the same or greater
degree'' as the prohibited fuel or fuel additive. Even assuming that
this proposal amounts to a prohibition, as compared to a control, EPA
does not believe that the proposed misfueling mitigation measures will
result in the use of any other fuel or fuel additive that will produce
emissions that will endanger public health or welfare to the same or
greater degree as the emissions produced by E15. In fact, the measures
being proposed today should lessen the overall public health or welfare
impacts from the emissions from these products. To the extent that EPA
is proposing a prohibition of using E15 in certain engines, vehicles
and equipment, such a prohibition should serve to prevent or reduce
misfueling in those products and avoid the increased detrimental
effects this provision seeks to protect against. These products would
instead use other gasoline or gasoline-ethanol blends currently
available in the marketplace and be able to meet their current
emissions standards. Thus, EPA may propose these misfueling mitigation
measures under 211(c)(1) without causing other public health or welfare
effects from the use of another fuel or fuel additive.
VIII. Public Participation
We request comment on all aspects of this proposal. This section
describes how you can participate in this process.
A. How do I submit comments?
We are opening a formal comment period by publishing this document.
We will accept comments during the period indicated under DATES in the
first part of this proposal. If you have an interest in the proposed
program described in this document, we encourage you to comment on any
aspect of this rulemaking. We also request comment on specific topics
identified throughout this proposal.
Your comments will be most useful if you include appropriate and
detailed supporting rationale, data, and analysis. Commenters are
especially encouraged
[[Page 68083]]
to provide specific suggestions for any changes to any aspect of the
regulations that they believe need to be modified or improved. You
should send all comments, except those containing proprietary
information, to our Air Docket (see ADDRESSES in the first part of this
proposal) before the end of the comment period.
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments. If you wish to submit
Confidential Business Information (CBI) or information that is
otherwise protected by statute, please follow the instructions in
Section XI.B.
B. How should I submit CBI to the agency?
Do not submit information that you consider to be CBI
electronically through the electronic public docket, http://www.regulations.gov, or by e-mail. Send or deliver information
identified as CBI only to the following address: U.S. Environmental
Protection Agency, Assessment and Standards Division, 2000 Traverwood
Drive, Ann Arbor, MI 48105, Attention Docket ID EPA-HQ-OAR-2010-0448.
You may claim information that you submit to EPA as CBI by marking any
part or all of that information as CBI (if you submit CBI on disk or CD
ROM, mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is CBI). Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comments that include
any information claimed as CBI, a copy of the comments that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket. If you submit the copy that does not contain CBI
on disk or CD ROM, mark the outside of the disk or CD ROM clearly that
it does not contain CBI. Information not marked as CBI will be included
in the public docket without prior notice. If you have any questions
about CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section.
C. Will there be a public hearing?
We will hold a public hearing in Chicago, IL on November 16, 2010
at the location shown below. The hearing will start at 10 a.m. local
time and continue until everyone has had a chance to speak.
Millennium Knickerbocker Hotel Chicago, 163 East Walton Place, @
North Michigan Avenue, Chicago, IL 60600, Phone 312-751-8100.
If you would like to present testimony at the public hearing, we
ask that you notify the contact person listed under FOR FURTHER
INFORMATION CONTACT in the first part of this proposal at least 8 days
before the hearing. You should estimate the time you will need for your
presentation and identify any needed audio/visual equipment. We suggest
that you bring copies of your statement or other material for the EPA
panel and the audience. It would also be helpful if you send us a copy
of your statement or other materials before the hearing.
We will make a tentative schedule for the order of testimony based
on the notifications we receive. This schedule will be available on the
morning of the hearing. In addition, we will reserve a block of time
for anyone else in the audience who wants to give testimony.
We will conduct the hearing informally, and technical rules of
evidence will not apply. We will arrange for a written transcript of
the hearing and keep the official record of the hearing open for 30
days to allow you to submit supplementary information. You may make
arrangements for copies of the transcript directly with the court
reporter.
D. Comment Period
The comment period for this rule will end on January 3, 2011.
E. What should I consider as I prepare my comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
Explain your views as clearly as possible.
Describe any assumptions that you used.
Provide any technical information and/or data you used
that support your views.
If you estimate potential burden or costs, explain how you
arrived at your estimate.
Provide specific examples to illustrate your concerns.
Offer alternatives.
Make sure to submit your comments by the comment period
deadline identified.
To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page of
your response. It would also be helpful if you provided the name, date,
and Federal Register citation related to your comments.
XI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' This action may
raise novel legal or policy issues. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2408.01.
This proposed rule imposes some new information collection burdens
regarding product transfer documentation. Product transfer documents,
or PTDs, are commonly used in the fuels distribution system and are
their use is a customary business practice. This proposed rule is
expected to add a one-time burden to program and implement new product
codes and statements, as well as a continuing, small burden associated
with affixing (using) products codes and statements. This proposed
regulation contains provisions requiring standard product labels, which
will not impose any information collection burden on regulated parties.
We have also estimated the burden associated with parties who elect to
use proposed ``Survey Option 1.''
For the proposed information collection, we estimate that there
will be 9,608 annual respondents; 2,009,226 annual responses; and
71,809 annual hours. We estimate that annual cost of this information
collection to respondents will be $5,098,427. The average burden is
0.04 hours per response. Burden is defined at 5 CFR 1320.3(b).
We estimate that the cost of adding the proposed survey of
compliance
[[Page 68084]]
(which requires sampling and testing) with the proposed labeling
requirements to the existing RFG survey at $50,000 per year. The cost
to implement all of the proposed survey provisions for conventional
gasoline is estimated at $2 million per year. Thus, the total cost of
the proposed survey requirements is estimated to be $2.05 million per
year
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-
2010-0448. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after November 4, 2010 a comment to OMB is best assured of having its
full effect if OMB receives it by December 6, 2010. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities directly regulated by this proposed rule are petroleum
refiners and importers, ethanol producers, ethanol blenders, gasoline
terminals, gasoline stations with convenience stores, and other
gasoline stations. While there are small entities in each of these
market sectors as discussed in Section III.F., the cost impact on any
particular entity is expected to be a tiny fraction of annual revenues.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
The total annual cost is expected to be $6 million. Thus, this rule is
not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action
primarily affects the private sector, specifically petroleum refiners
and importers, ethanol producers, ethanol blenders, gasoline terminals,
gasoline stations with convenience stores, and other gasoline stations.
E. Executive Order 13132 (Federalism)
EPA believes that this action does not have federalism
implications. This rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Any preemption of State or local controls under section 211(c)(4)(A),
based on issuance of this rule under section 211(c)(1), would only
apply to State or local controls adopted for purposes of motor vehicle
emissions control.
EPA consulted with State and local officials early in the process
of developing the proposed action to permit them to have meaningful and
timely input into its development. EPA met with members of the National
Association of Clean Air Agencies (NACAA) to discuss the nature of
today's proposed rule. Additionally, we provided State and local
governments an opportunity to provide comment on the implementation of
misfueling mitigation measures for a partial E15 waiver in both the
RFS2 NPRM (see 74 FR 25016) and the E15 waiver request notice (see 74
FR 18228). We received comments from only one State on this issue in
the RFS2 NPRM, and it supported efforts for properly labeling fuel
pumps containing gasoline-ethanol blends. Thus, Executive Order 13132
does not apply to this action. In the spirit of Executive Order 13132,
and consistent with EPA policy to promote communications between EPA
and State and local governments, EPA specifically solicits comment on
this proposed action from State and local officials.
F. Executive Order 13175
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will
be implemented at the Federal level and impose compliance costs only on
petroleum refiners and importers, gasoline stations with convenience
stores, and other gasoline stations. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This proposed rule would require a
label to be placed on E15 fuel dispensers, for those stations that
elect to sell E15. The cost of the labels would average $6.45 per year
per gasoline station. This is a tiny fraction of the station's annual
profit, and is not expected to significantly affect energy
distribution.
[[Page 68085]]
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This action would affect all gasoline stations that
choose to sell E15 and therefore will not affect any particular area
disproportionately.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Diesel, Gasoline, Imports, Incorporation by reference, Labeling, Motor
vehicle pollution, Penalties, Reporting and recordkeeping requirements.
Dated: October 13, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 80 is
proposed to be amended as follows:
PART 80-REGULATION OF FUEL AND FUEL ADDITIVES
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7542, 7545, and 7601(a).
2. Section 80.45 is amended by adding a new paragraph
(c)(1)(iii)(C) to read as follows:
Sec. 80.45 Complex emissions model.
* * * * *
(c) * * *
(1) * * *
(iii) * * *
(C) During Phase II, fuels with an ethanol concentration greater
than 10 volume percent and not more than 15 volume percent shall be
evaluated with the OXY fuel parameter set equal to 4.0 percent by
weight when calculating VOCE using the equations described in
paragraphs (c)(1)(i) and (c)(1)(ii) of this section.
* * * * *
3. A new subpart N is added to read as follows:
Subpart N--Additional Requirements for Gasoline-Ethanol Blends
Sec.
80.1500 Definitions.
80.1501 What are the labeling requirements that apply to retailers
and wholesale purchaser-consumers of gasoline-ethanol blends that
contain greater than 10 volume percent ethanol and not more than 15
volume percent ethanol?
80.1502 What are the survey requirements for gasoline-ethanol
blends?
80.1503 What are the product transfer document requirements for
gasoline-ethanol blends, base gasolines, and conventional
blendstocks for oxygenate blending subject to this subpart?
80.1504 What acts are prohibited under this subpart?
80.1505 Who is liable for violations of this subpart?
80.1506 What penalties apply under this subpart?
80.1507 What are the defenses for acts prohibited under this
subpart?
80.1508 What evidence may be used to determine compliance with the
requirements of this subpart and liability for violations of this
subpart?
Subpart N--Additional Provisions for Gasoline-Ethanol Blends
Sec. 80.1500 Definitions.
All of the definitions in Sec. 80.2 apply to this subpart. As used
in this subpart:
(a) Blendstock for oxygenate blending means gasoline blendstock
which could become gasoline solely upon the addition of an oxygenate.
(b) Conventional blendstock for oxygenate blending means gasoline
blendstock which could become conventional gasoline solely upon the
addition of an oxygenate.
(c) Carrier has the same meaning as defined in Sec. 80.2(t).
(d) Conventional gasoline has the same meaning as defined in Sec.
80.2(ff)
(e) E0 means a gasoline that contains no ethanol.
(f) E10 means a gasoline-ethanol blend that contains between 9 and
10 volume percent ethanol.
(g) E15 means a gasoline-ethanol blend that contains greater than
10 volume percent ethanol and not more than 15 volume percent ethanol.
(h) EX means a gasoline-ethanol blend that contains less than 9
volume percent ethanol where X equals the maximum volume percent
ethanol in the gasoline-ethanol blend.
(i) EXX means a gasoline-ethanol blend above E15 where XX equals
the maximum volume percent ethanol in the gasoline-ethanol blend.
(j) Ethanol blender has the same meaning as defined in Sec.
80.2(v).
(k) Ethanol importer means a person who brings ethanol into the
United States (including from the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands)
for use in motor vehicles and nonroad engines.
(l) Ethanol producer means any person who owns, leases, operates,
controls, or supervises a facility that produces ethanol for use in
motor vehicles and nonroad engines.
(m) Flex-fuel vehicle has the same meaning as flexible-fuel vehicle
as defined in Sec. 86.1803-01.
(n) Fuel dispenser means the apparatus used to dispense fuel into
the fuel tank that is used to power a motor vehicle or a nonroad
engine, and that is attached to a motor vehicle or nonroad engine.
(o) Gasoline has the same meaning as defined in Sec. 80.2(c).
(p) Gasoline importer means an importer as defined in Sec. 80.2(r)
that imports gasoline or gasoline blending stocks that could become
gasoline solely upon the addition of oxygenates.
(q) Gasoline refiner means a refiner as defined as in Sec. 80.2(i)
that produces gasoline or gasoline blending stocks that could become
gasoline solely upon the addition of oxygenates.
(r) Oxygenate blender has the same meaning as defined in Sec.
80.2(mm).
[[Page 68086]]
(s) Oxygenate blending facility has the same meaning as defined in
Sec. 80.2(ll).
(t) Regulatory control periods has the same meaning as defined in
Sec. 80.27(a)(1). Regulatory control periods is defined in Sec.
80.27(a)(1) to mean June 1 to September 15 for retail outlets and
wholesale purchaser-consumers and May 1 to September 15 for all other
facilities.
(u) Retail outlet has the same meaning as defined Sec. 80.2(j).
(v) Retailer has the same meaning as defined in Sec. 80.2(k).
(w) Survey series means the four quarterly surveys that comprise a
survey program.
(x) Sampling strata means the three types of areas sampled during a
survey which include the following:
(1) Densely populated areas;
(2) Transportation corridors; and
(3) Rural areas.
(y) Wholesale purchaser-consumer has the same meaning as defined in
Sec. 80.2(o).
Sec. 80.1501 What are the labeling requirements that apply to
retailers and wholesale purchaser-consumers of gasoline-ethanol blends
that contain greater than 10 volume percent ethanol and not more than
15 volume percent ethanol?
(a) Any retailer or wholesale purchaser-consumer who sells,
dispenses, or offers for sale or dispensing, gasoline-ethanol blends
that contain greater than 10 volume percent ethanol and not more than
15 volume percent ethanol shall affix the following conspicuous and
legible label to the fuel dispenser:
CAUTION!
This fuel contains 15% ethanol maximum
Use only in:
2007 and newer gasoline cars
2007 and newer light-duty trucks
Flex-fuel vehicles
This fuel might damage other vehicles and engines. Federal law
prohibits its use in all other vehicles and engines
(b) Labels shall meet the following requirements for appearance and
placement:
(1) Dimensions. The label shall measure 3 and \5/8\ inches wide by
3 and \1/8\ inches high.
(2) Placement. The label shall be placed on the upper two-thirds of
each fuel dispenser in a location that is clearly visible to the
consumer.
(3) Text. The text shall be centered and the appropriate font and
background shall be used as described in paragraphs (b)(3)(i) through
(iii) and (b)(4)(i) through (iv).
(i) The word ``CAUTION!'' shall be in 24-point, dark red, bold,
Arial font.
(ii) The ethanol content ``This fuel contains 15% ethanol maximum''
shall be in 14 point, white, Arial font.
(iii) All other text on the label shall appear in 14-point, black,
Arial font, except that the word ``prohibits'' shall appear in 14-
point, black, bold, italic, Arial font.
(4) Color. (i) The background for the area which includes the word
``CAUTION!'', and the ethanol content ``This fuel contains 15% ethanol
maximum'' shall be 1-inch wide and neon-orange in color, except that a
rectangular white background large enough to encompass the word
``CAUTION!'' shall be superimposed on this neon-orange background.
(ii) The background for all other text on the label shall be white.
(iii) The label shall have a \1/16\-inch neon-orange three-sided
border to the left, right, and bottom of the area which includes the
text described in paragraph (b)(3)(iii) of this section. This border
shall be attached to the neon-orange background area described in
paragraph (b)(4)(i) of this section.
(iv) The label shall have a \1/16\-inch white border, located to
the outside of the neon-orange border described in paragraph
(b)(4)(iii) of this section and neon-orange background area described
in paragraph (b)(4)(i) of this section.
Sec. 80.1502 What are the survey requirements related to gasoline-
ethanol blends?
No responsible party identified in paragraphs (a) and (b) of this
section shall introduce E15 into commerce until the survey program
requirements in either paragraph (a) or paragraph (b) in this section
are satisfied.
(a) Survey option 1. In order to satisfy the survey program
requirements, any gasoline refiner, gasoline importer, ethanol blender,
ethanol producer, or ethanol importer shall properly conduct a program
of compliance surveys in accordance with a survey program plan which
has been approved by EPA in all areas which may be supplied with their
gasoline, blendstock for oxygenate blending, ethanol, or gasoline-
ethanol blend if these may be used to manufacture E15 or as E15. Such
approval shall be based upon the survey program plan meeting the
following criteria:
(1) The survey program shall consist of at least four quarterly
surveys which shall occur during the following time periods:
(i) One survey during the period January 1 through March 31;
(ii) One survey during the period April 1 through June 30;
(iii) One survey during the period July 1 through September 30; and
(iv) One survey during the period October 1 through December 31.
(2) The survey program plan shall meet the general requirements of
paragraph (b)(4) of this section.
(b) Survey option 2.
(1) To comply with the requirements under this paragraph (b),
ethanol blenders, ethanol producers, ethanol importers, gasoline
refiners, and gasoline importers must participate in the funding of a
consortium which arranges to have an independent survey association
conduct a statistically valid program of compliance surveys pursuant to
a survey program plan which has been approved by EPA, in accordance
with the requirements of paragraphs (b)(2) through (b)(4) and (b)(6) of
this section.
(2) General requirements. The consortium survey program under this
paragraph (b) must be:
(i) Planned and conducted by a survey association that is
independent of the ethanol blenders, ethanol producers, ethanol
importers, gasoline refiners, and/or gasoline importers that arrange to
have the survey conducted. In order to be considered independent:
(A) Representatives of the survey association shall not be an
employee of any ethanol blender, ethanol producer, ethanol importer,
gasoline refiner, or gasoline importer;
(B) The survey association shall be free from any obligation to or
interest in any ethanol blender, ethanol producer, ethanol importer,
gasoline refiner, or gasoline importer; and
(C) The ethanol blenders, ethanol producers, ethanol importers,
gasoline refiners, and/or gasoline importers that arrange to have the
survey conducted shall be free from any obligation to or interest in
the survey association.
(ii) Conducted at retail outlets that sell gasoline; and
(iii) Represent all gasoline dispensed nationwide.
(3) Independent Survey Association Requirements. The consortium
described in paragraph (b)(1) of this section shall require the
independent survey association conducting the surveys to:
(i) Submit to EPA for approval each calendar year a proposed survey
program plan in accordance with the requirements of paragraph (b)(4) of
this section.
(ii) Obtain samples of gasoline offered for sale at gasoline retail
outlets in accordance with the survey program plan approved under this
paragraph (b), or immediately notify EPA of any refusal of retail
outlets to allow samples to be taken.
[[Page 68087]]
(iii) Test, or arrange to be tested, the samples required under
paragraph (b)(3)(ii) of this section for oxygenate content as follows:
(A) Samples collected at retail outlets shall be shipped the same
day the samples are collected via overnight service to the laboratory
and analyzed for oxygenate content within 24 hours after receipt of the
sample in the laboratory.
(B) Any laboratory to be used by the independent survey association
for oxygenate testing shall be approved by EPA and its test method for
determining oxygenate content shall be a method permitted under Sec.
80.46(g).
(iv) In the case of any test that yields a result that does not
match the label affixed to the product (e.g., a sample greater than 15
volume percent ethanol dispensed from a fuel dispenser labeled as
``E15'' or a sample containing greater than 10 volume percent ethanol
and not more than 15 volume percent ethanol dispensed from a fuel
dispenser not labeled as ``E15''), the independent survey association
shall, within 24 hours after the laboratory receives the sample, send
notification of the test result as follows:
(A) In the case of a sample collected at a retail outlet at which
the brand name of a gasoline refiner or gasoline importer is displayed,
to the gasoline refiner or gasoline importer, and EPA. This initial
notification to a gasoline refiner or gasoline importer shall include
specific information concerning the name and address of the retail
outlet, contact information, the brand, and the ethanol content of the
sample.
(B) In the case of a sample collected at other retail outlets, to
the retailer and EPA.
(C) The independent survey association shall provide notice to the
identified contact person or persons for each party in writing (which
includes e-mail or facsimile) and, if requested by the identified
contact person, by telephone.
(v) Confirm that each fuel dispenser sampled is labeled as required
in Sec. 80.1501 by confirming that:
(A) The label meets the appearance and content requirements of
Sec. 80.1501.
(B) The label is located on the fuel dispenser according to the
requirements in Sec. 80.1501.
(vi) In the case of a fuel dispenser that is improperly labeled,
the survey association shall provide notice as provided in paragraphs
(b)(2)(iv)(A) through (C) of this section.
(vii) Provide to EPA quarterly and annual summary survey reports
which include the information specified in paragraph (b)(5) of this
section.
(viii) Maintain all records relating to the surveys conducted under
this paragraph (b) for a period of at least five (5) years.
(ix) Permit any representative of EPA to monitor at any time the
conducting of the surveys, including sample collection, transportation,
storage, and analysis.
(4) Survey Plan Design Requirements. The proposed survey program
plan required under paragraph (b)(3)(i) of this section shall, at a
minimum, include the following:
(i) Number of Surveys. The survey program plan shall include four
quarterly surveys each calendar year. The four quarterly surveys
collectively are called the survey series as defined in Sec. 80.1500.
(ii) Sampling Areas. The survey program plan shall include sampling
in all sampling strata, as defined in Sec. 80.1500, during each
survey. These sampling strata shall be further divided into discrete
sampling areas or clusters. Each survey shall include sampling in at
least 40 sampling areas in each stratum which are randomly selected.
(iii) No advance notice of surveys. The survey plan shall include
procedures to keep the identification of the sampling areas that are
included in any survey plan confidential from any regulated party prior
to the beginning of a survey in an area. However, this information
should not be kept confidential from EPA.
(iv) Retail outlet selection.
(A) The retail outlets to be sampled in a sampling area shall be
selected from among all retail outlets in the sampling area that sell
gasoline, with the probability of selection proportionate to the volume
of gasoline sold at the retail outlets; the sample should also include
retail outlets with different brand names as well as those retail
outlets that are unbranded.
(B) In the case of any retail outlet from which a sample of
gasoline was collected during a survey and determined to have an
ethanol content that does not match the fuel dispenser label (e.g. a
sample greater than 15 volume percent ethanol dispensed from a fuel
dispenser labeled as ``E15'' or a sample with greater than 10 volume
percent ethanol and not more than 15 volume percent ethanol dispensed
from a fuel dispenser not labeled as ``E15''), that retail outlet shall
be included in the subsequent survey.
(C) One sample of each product dispensed as gasoline shall be
collected at each retail outlet, and separate samples shall be taken
that represent the gasoline contained in each gasoline storage tank
unless collection of separate samples is not practicable.
(v) Number of samples.
(A) The minimum number of samples to be included in the survey plan
for each calendar year shall be calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP04NO10.006
Where:
n = minimum number of samples in a year-long survey series. However,
in no case shall n be smaller than 7,500.
Z[alpha] = upper percentile point from the normal distribution to
achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus,
Z[alpha] equals 1.645.
Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta]
equals 1.645.
[phis]1 = the maximum proportion of non-compliant
stations for a region to be deemed compliant. In this test, the
parameter needs to be 5% or greater, i.e., 5% or more of the
stations, within a stratum such that the region is considered non-
compliant. For this survey, [phis]1 will be 5%.
[phis]0 = the underlying proportion of non-compliant
stations in a sample. For the first survey plan, [phis]0
will be 2.3%. For subsequent survey plans [phis]0, will
be the average of the proportion of stations found to be non-
compliant over the previous four surveys.
Stn = number of sampling strata. For purposes of this
survey program, Stn equals 3.
Fa = adjustment factor for the number of extra samples
required to compensate for collected samples that cannot be included
in the survey, based on the number of additional samples required
during the previous four surveys. However, in no case shall the
value of Fa be smaller than 1.1.
Fb = adjustment factor for the number of samples required
to resample each retail outlet with test results exceeding the
labeled amount (e.g. a sample greater than 15 volume percent ethanol
dispensed from a fuel dispenser labeled
[[Page 68088]]
as ``E15'' or a sample with greater than 10 volume percent ethanol
and not more than 15 volume percent ethanol dispensed from a fuel
dispenser not labeled as ``E15''), based on the rate of resampling
required during the previous four surveys. However, in no case shall
the value of Fb be smaller than 1.1.
Sun = number of surveys per year. For purposes of this
survey program, Sun equals 4.
(B) The number of samples determined pursuant to paragraph
(b)(4)(v)(A) of this section, after being incremented as necessary to
allocate whole numbers of samples to each cluster, shall be distributed
approximately equally for the quarterly surveys conducted during the
calendar year.
(5) Summary survey reports. The quarterly and annual summary survey
reports required under paragraph (b)(3)(vii) of this section shall
include the following information:
(i) An identification of the parties that are participating in the
survey.
(ii) The identification of each sampling area included in a survey
and the dates that the samples were collected in that area.
(iii) For each retail outlet sampled:
(A) The identification of the retail outlet;
(B) The gasoline refiner or gasoline importer brand name displayed,
if any;
(C) The fuel dispenser labeling (e.g., ``E15'');
(D) The sample test result for oxygenate content; and
(E) The test method used to determine oxygenate content under Sec.
80.46(g).
(iv) Ethanol level summary statistics by brand and unbranded for
each sampling area, strata, and survey series. These summary statistics
shall:
(A) Include the number of samples, the average, median and range of
ethanol content, expressed in volume percent.
(B) [Reserved]
(v) The quarterly reports required under this paragraph (b)(5) are
due 60 days following the end of the quarter. The annual reports
required under this paragraph (b)(5) are due 60 days following the end
of the calendar year.
(vi) The reports required under this paragraph (b)(5) shall be
submitted to EPA in an electronic spreadsheet.
(6) Procedures for obtaining approval of survey plan. The first
year in which a survey program is conducted may consist of only a
portion of a calendar year ending on December 31 (i.e. in the initial
year, a survey program may begin on a date after January 1, but would
still end on December 31). Subsequent survey programs shall be
conducted on a calendar year basis. The procedure for obtaining EPA
approval of a survey program plan under this paragraph (b), and for
revocation of such approval, is as follows:
(i) For the first year in which a survey will be conducted, a
survey program plan that complies with the requirements of this
paragraph (b) must be submitted to EPA no later than 60 days prior to
the date on which the survey program is to begin.
(ii) For subsequent years in which a survey will be conducted, a
survey program plan that complies with the requirements of this
paragraph (b) must be submitted to EPA no later than November 1 of the
year preceding the calendar year in which the survey will be conducted.
(iii) The survey program plan must be signed by a responsible
officer of the consortium which arranges to have an independent
surveyor conduct the survey program.
(iv) The survey program plan must be sent to the following address:
Director, Compliance and Innovative Strategies Division, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Mail Code
6506J, Washington, DC 20460.
(v) EPA will send a letter to the party submitting the survey
program plan that indicates whether EPA approves or disapproves the
survey plan.
(vi) EPA may revoke its approval of a survey plan if EPA determines
that the requirements in this section have not been complied with, or
that the provisions of the survey plan approved by EPA pursuant to
paragraph (b)(6)(v) of this section have not been diligently
implemented.
(vii) The approving official for a survey plan under this section
is the Director of the Compliance and Innovative Strategies Division,
Office of Transportation and Air Quality.
(viii) Any notifications or reports required to be submitted to EPA
under this paragraph (b) must be directed to the official designated in
paragraph (b)(6)(iv) of this section.
(7) Independent surveyor contract.
(i) For the first year in which a survey program will be conducted,
no later than 30 days preceding the start of the survey, the contract
with the independent surveyor shall be in effect, and an amount of
money necessary to carry out the entire survey plan shall be paid to
the independent surveyor or placed into an escrow account with
instructions to the escrow agent to pay the money to the independent
surveyor during the course of the conduct of the survey plan.
(ii) For subsequent years in which a survey program will be
conducted, no later than December 1 of the year preceding the year in
which the survey will be conducted, the contract with the independent
surveyor shall be in effect, and an amount of money necessary to carry
out the entire survey plan shall be paid to the independent surveyor or
placed into an escrow account with instructions to the escrow agent to
pay the money to the independent surveyor during the course of the
conduct of the survey plan.
(iii) For the first year in which a survey program will be
conducted, no later than 15 days preceding the start of the survey EPA
must receive a copy of the contract with the independent surveyor and
proof that the money necessary to carry out the survey plan has either
been paid to the independent surveyor or placed into an escrow account;
if the money has been placed into an escrow account, a copy of the
escrow agreement must to be sent to the official designated in
paragraph (b)(6)(iv) of this section.
(iv) For subsequent years in which a survey program will be
conducted, no later than December 15 of the year preceding the year in
which the survey will be conducted, EPA must receive a copy of the
contract with the independent surveyor and proof that the money
necessary to carry out the survey plan has either been paid to the
independent surveyor or placed into an escrow account; if placed into
an escrow account, a copy of the escrow agreement must be sent to the
official designated in paragraph (b)(6)(iv) of this section.
(8) Failure to fulfill requirements. A failure to fulfill or cause
to be fulfilled any of the requirements of this paragraph (b) is a
prohibited act under Clean Air Act section 211(c) and Sec. 80.1504.
Sec. 80.1503 What are the product transfer document requirements for
gasoline-ethanol blends, base gasolines, and conventional blendstocks
for oxygenate blending subject to this subpart?
(a) Product transfer documentation for conventional blendstock for
oxygenate blending, or base gasoline transferred upstream of an ethanol
blending facility.
(1) In addition to any other product transfer document requirements
under 40 CFR part 80, on each occasion when any person transfers
custody or title to any conventional blendstock for oxygenate blending
which could become conventional gasoline solely upon the addition of
ethanol, or base gasoline upstream of an oxygenate blending facility,
as defined in Sec. 80.2(ll),
[[Page 68089]]
the transferor shall provide to the transferee product transfer
documents which include the following information:
(i) The name and address of the transferor;
(ii) The name and address of the transferee;
(iii) The volume of conventional blendstock for oxygenate blending
or gasoline being transferred;
(iv) The location of the conventional blendstock for oxygenate
blending or gasoline at the time of the transfer;
(v) The date of the transfer;
(vi) For gasoline during the regulatory control periods defined in
Sec. 80.27(a)(1):
(A) The maximum Reid Vapor Pressure (RVP), as determined by a
method permitted under Sec. 80.46(c), stated in the following format:
``The RVP of this base gasoline does not exceed [fill in appropriate
value]''; and
(B) For base gasoline designed for the special provisions for
gasoline-ethanol blends in Sec. 80.27(d)(2), information about the
suitable ethanol content stated in the following format: ``Designed for
the special RVP provisions for ethanol blends that contain between 9
and 10 volume % ethanol.''
(C) For base gasoline not described in paragraph (a)(vi)(B) of this
section, information regarding the suitable ethanol content, stated in
the following format: ``Suitable for blending with ethanol at a
concentration of no more than 15 volume percent ethanol.''
(2) The requirements in paragraph (a)(1) do not apply to
reformulated gasoline blendstock for oxygenate blending, as defined in
Sec. 80.2(kk), which are subject to the product transfer document
requirements of Sec. 80.69 and Sec. 80.77.
(b) Product transfer documentation for gasoline transferred
downstream of an oxygenate blending facility.
(1) In addition to any other product transfer document requirements
under 40 CFR part 80, on each occasion when any person transfers
custody or title to any gasoline-ethanol blend downstream of an
oxygenate blending facility, as defined in Sec. 80.2(ll), except for
transfers to the ultimate consumer, the transferor shall provide to the
transferee product transfer documents which include the following
information:
(i) The name and address of the transferor;
(ii) The name and address of the transferee;
(iii) The volume of gasoline being transferred;
(iv) The location of the gasoline at the time of the transfer;
(v) The date of the transfer; and
(vi) One of the statements detailed in paragraph (b)(1)(vi)(A)
though (E) which accurately describes the gasoline-ethanol blend. The
information regarding the ethanol content of the fuel is required year-
round. The information regarding the RVP of the fuel is only required
for gasoline during the regulatory control periods defined in Sec.
80.27(a)(1).
(A) For gasoline containing no ethanol (E0), the following
statement: ``E0: Contains no ethanol. The RVP does not exceed [fill in
appropriate value] psi.''
(B) For gasoline containing less than 9 volume percent ethanol, the
following statement: ``EX--Contains up to X% ethanol. The RVP does not
exceed [fill in appropriate value] psi.'' The term X refers to the
maximum volume percent ethanol present in the gasoline.
(C) For gasoline containing between 9 and 10 volume percent ethanol
(E10), the following statement: ``E10: Contains between 9 and 10 volume
percent ethanol. The RVP does not exceed [fill in appropriate value]
psi.''
(D) For gasoline containing greater than 10 volume percent and not
more than 15 volume percent ethanol (E15), the following statement:
``E15: Contains up to 15 volume percent ethanol. The RVP does not
exceed [fill in appropriate value] psi;'' or
(E) For all other gasoline that contains ethanol, the following
statement: ``EXX--Contains no more than XX% ethanol,'' where XX equals
the volume % ethanol.
(2) Except for transfers to truck carriers, retailers, or wholesale
purchaser-consumers, product codes may be used to convey the
information required under paragraph (b)(1) of this section if such
codes are clearly understood by each transferee.
(c) The records required by this section must be kept by the
transferor and transferee for five (5) years from the date they were
created or received by each party in the distribution system.
(d) On request by EPA, the records required by this section must be
made available to the Administrator or the Administrator's authorized
representative. For records that are electronically generated or
maintained, the equipment or software necessary to read the records
shall be made available, or, if requested by EPA, electronic records
shall be converted to paper documents.
Sec. 80.1504 What acts are prohibited under this subpart?
No person shall--
(a)(1) Sell, introduce, or cause or allow the sale or introduction
of gasoline containing greater than 10 volume % ethanol (i.e., greater
than E10) into any model year 2000 or older light duty gasoline motor
vehicle, any heavy-duty gasoline motor vehicle or engine, any highway
or off-highway motorcycle, or any gasoline-powered nonroad engines,
vehicles or equipment;
(2) Notwithstanding Sec. 80.1504(a)(1), no person shall be
prohibited from selling, introducing, or causing or allowing the sale
or introduction of gasoline containing greater than 10 volume % ethanol
into any flex-fuel vehicle.
(b) Sell, offer for sale, dispense, or otherwise make available at
a retail or wholesale purchaser-consumer facility a gasoline-ethanol
blend that is not correctly labeled as to its ethanol content in
accordance with Sec. 80.1501;
(c) Fail to fulfill, or cause a failure of the fulfillment of, any
survey required under Sec. 80.1502;
(d) Fail to generate, use, transfer and maintain product transfer
documents that accurately reflect the type of product, ethanol content,
maximum Reid Vapor pressure (RVP), and other information required under
Sec. 80.1503;
(e) Improperly blend, or cause the improper blending of, ethanol
into conventional blendstock for oxygenate blending, base gasoline or
gasoline already containing ethanol, in a manner inconsistent with the
information on the product transfer document under Sec.
80.1503(a)(1)(vi) or Sec. 80.1503(b)(1)(vi);
(f) For gasoline during the regulatory control periods defined in
Sec. 80.27(a)(1), combine any base gasoline or conventional blendstock
for oxygenate blending intended for blending with E10 that took
advantage of the 1 psi waiver applicable for 9-10 volume percent
gasoline-ethanol blends with any gasoline or conventional blendstock
for oxygenate blending intended for blending with E15, unless the
resultant combination is designated, in its entirety, as an E10
blendstock for oxygenate blending.
(g) For gasoline during the regulatory control periods defined in
Sec. 80.27(a)(1), combine any gasoline-ethanol blend containing E10
that took advantage of the 1 psi waiver applicable to 9-10 volume
percent gasoline-ethanol blends, with any gasoline containing E0 or any
gasoline blend containing E15.
(h) Fail to meet any other requirement of this subpart.
(i) Cause another person to commit an act in violation of
paragraphs (a) through (h) of this section.
Sec. 80.1505 Who is liable for violations of this subpart?
(a) Persons liable. Any person who violates Sec. 80.1504(a)
through (i) is liable for the violation. In addition, when the gasoline
contained in any storage tank at
[[Page 68090]]
any facility owned, leased, operated, controlled or supervised by any
gasoline refiner, gasoline importer, oxygenate blender, carrier,
distributor, reseller, retailer, or wholesale purchaser-consumer is
found in violation of the prohibitions described in Sec. 80.1504(a),
and (c) through (i), the following persons shall be deemed in
violation:
(1) Each gasoline refiner, gasoline importer, oxygenate blender,
carrier, distributor, reseller, retailer, or wholesale purchaser-
consumer who owns, leases, operates, controls or supervises the
facility where the violation is found.
(2) Each gasoline refiner or gasoline importer whose corporate,
trade, or brand name, or whose marketing subsidiary's corporate, trade,
or brand name, appears at the facility where the violation is found.
(3) Each gasoline refiner, gasoline importer, oxygenate blender,
distributor, and reseller who manufactured, imported, sold, offered for
sale, dispensed, supplied, offered for supply, stored, transported, or
caused the transportation of any gasoline which is in the storage tank
containing gasoline found to be in violation.
(4) Each carrier who dispensed, supplied, stored, or transported
any gasoline which is in the storage tank containing gasoline found to
be in violation, provided that EPA demonstrates, by reasonably specific
showings using direct or circumstantial evidence, that the carrier
caused the violation.
(b) For label violations under Sec. 80.1504(b), only the wholesale
purchaser-consumer or retailer and the branded gasoline refiner or
branded gasoline importer, if any, shall be liable.
(c) Each partner to a joint venture, or each owner of a facility
owned by two or more owners, is jointly and severally liable for any
violation of this subpart that occurs at the joint venture facility or
a facility that is owned by the joint owners, or a facility that is
committed by the joint venture operation or any of the joint owners of
the facility.
(d) Any parent corporation is liable for any violations of this
subpart that are committed by any of its solely-owned subsidiaries.
Sec. 80.1506 What penalties apply under this subpart?
(a) Any person under Sec. 80.1505 who is liable for a violation
under Sec. 80.1504 is subject to an administrative or civil penalty,
as specified in sections 205 and 211(d) of the Clean Air Act, for every
day of each such violation and the amount of economic benefit or
savings resulting from the violation.
(b)(1) Any violation of any requirement that pertains to the
ethanol content of gasoline shall constitute a separate day of
violation for each and every day such gasoline giving rise to such
violations remains any place in the gasoline distribution system,
beginning on the day that the gasoline that violates such requirement
is produced or imported and distributed and/or offered for sale, and
ending on the last day that any such gasoline is offered for sale or is
dispensed to any ultimate consumer for use in any motor vehicle, unless
the violation is corrected by altering the properties and
characteristics of the gasoline giving rise to the violations and any
mixture of gasolines that contains any of the gasoline giving rise to
the violations such that the gasoline or mixture of gasolines has the
properties and characteristics that would have existed if the gasoline
giving rise to the violations had been produced or imported in
compliance with all requirements that pertain to the ethanol content of
gasoline.
(2) For the purposes of this paragraph (b), the length of time the
gasoline in question remained in the gasoline distribution system shall
be deemed to be twenty-five days; unless the respective party or EPA
demonstrates by reasonably specific showings, using direct or
circumstantial evidence, that the gasoline giving rise to the
violations remained any place in the gasoline distribution system for
fewer than or more than twenty-five days.
(c) Any violation of any affirmative requirement or prohibition not
included in paragraph (b) of this section shall constitute a separate
day of violation for each and every day such affirmative requirement is
not properly accomplished, and/or for each and every day the prohibited
activity continues. For those violations that may be ongoing each and
every day the prohibited activity continues shall constitute a separate
day of violation.
Sec. 80.1507 What are the defenses for acts prohibited under this
subpart?
(a) Defenses for prohibited activities.
(1) In any case in which a gasoline refiner, gasoline importer,
oxygenate blender, carrier, distributor, reseller, retailer, or
wholesale purchaser-consumer would be in violation under Sec.
80.1504(a), and (c) through (i) it shall be deemed not in violation if
it can demonstrate:
(i) That the violation was not committed or caused by the regulated
party or its employee or agent;
(ii) That product transfer documents account for all of the
gasoline in the storage tank found in violation and indicate that the
gasoline met relevant requirements; and
(iii)(A) That it has conducted a quality assurance program,
including a sampling and testing program, as described in paragraph (b)
of this section;
(B) A carrier may rely on the sampling and testing program carried
out by another party, including the party that owns the gasoline in
question, provided that the sampling and testing program is carried out
properly.
(2)(i) Where a violation is found at a facility which is operating
under the corporate, trade or brand name of a refiner, that refiner
must show, in addition to the defense elements required by paragraph
(a)(1) of this section, that the violation was caused by:
(A) An act in violation of law (other than the Act or this part),
or an act of sabotage or vandalism;
(B) The action of any reseller, distributor, oxygenate blender,
carrier, or a retailer or wholesale purchaser-consumer supplied by any
of these persons, in violation of a contractual undertaking imposed by
the gasoline refiner designed to prevent such action, and despite
periodic sampling and testing by the gasoline refiner to ensure
compliance with such contractual obligation; or
(C) The action of any carrier or other distributor not subject to a
contract with the gasoline refiner but engaged by the gasoline refiner
for transportation of gasoline, despite specification or inspection of
procedures and equipment by the gasoline refiner which are reasonably
calculated to prevent such action.
(ii) In this paragraph (a), to show that the violation ``was
caused'' by any of the specified actions the party must demonstrate by
reasonably specific showings using direct or circumstantial evidence,
that the violation was caused or must have been caused by another.
(3) For label violations under Sec. 80.1504(b), the branded
gasoline refiner or branded gasoline importer shall not be deemed
liable if the requirements of paragraph (b)(4) of this section are met.
(b) Quality assurance program. In order to demonstrate an
acceptable quality assurance program for gasoline at all points in the
gasoline distribution network, other than at retail outlets and
wholesale purchaser-consumer facilities, a party must present evidence
of the following in addition to other regular appropriate quality
assurance procedures and practices.
(1) A periodic sampling and testing program to determine if the
gasoline
[[Page 68091]]
contains applicable maximum and/or minimum volume percent of ethanol.
(2) That on each occasion when gasoline is found in noncompliance
with one of the requirements referred to in paragraph (b)(1) of this
section:
(i) The party immediately ceases selling, offering for sale,
dispensing, supplying, offering for supply, storing, transporting, or
causing the transportation of the violating product; and
(ii) The party promptly remedies the violation (such as by removing
the violating product or adding more complying product until the
applicable requirements are achieved).
(3) An oversight program conducted by a carrier under paragraph
(b)(1) of this section need not include periodic sampling and testing
of gasoline in a tank truck operated by a common carrier, but in lieu
of such tank truck sampling and testing the common carrier shall
demonstrate evidence of an oversight program for monitoring compliance
with the requirements of Sec. 80.1504 relating to the transport or
storage of gasoline by tank truck, such as appropriate guidance to
drivers on compliance with applicable requirements and the periodic
review of records normally received in the ordinary course of business
concerning gasoline quality and delivery.
(4) The periodic sampling and testing program specified in
paragraph (b)(1) of this section shall be deemed to have been in effect
during the relevant time period for any party, including branded
gasoline refiners and branded gasoline importers, if:
(i) An EPA approved survey program under Sec. 80.1502 was in
effect and was executed fully and properly;
(ii) Any retailer at which a violation was discovered allowed
survey inspectors to take samples and inspect labels; and
(iii) For truck loading terminals and truck distributors that
perform oxygenate blending, additional quality assurance procedures and
practices were in place, such as regular checks to reconcile volumes of
ethanol in inventory and regular checks of equipment for proper ethanol
blend rates.
Sec. 80.1508 What evidence may be used to determine compliance with
the requirements of this subpart and liability for violations of this
subpart?
(a) Compliance with the requirements of this subpart pertaining to
the ethanol content of gasoline shall be determined based on the
ethanol level of the gasoline, measured using the methodologies
specified in Sec. 80.46(g). Any evidence or information, including the
exclusive use of such evidence or information, may be used to establish
the ethanol content of gasoline if the evidence or information is
relevant to whether the ethanol content of gasoline would have been in
compliance with the requirements of this subpart if the appropriate
sampling and testing methodology had been correctly performed. Such
evidence may be obtained from any source or location and may include,
but is not limited to, test results using methods other than those
specified in Sec. 80.46(g), business records, and commercial
documents.
(b) Determinations of compliance with the requirements of this
subpart other than those pertaining to the ethanol content of gasoline,
and determinations of liability for any violation of this subpart, may
be based on information obtained from any source or location. Such
information may include, but is not limited to, business records and
commercial documents.
[FR Doc. 2010-27446 Filed 11-3-10; 8:45 am]
BILLING CODE 6560-50-P