&EPA
Air and Radiation EPA420-S-05-006
June 2005
United States
Environmental Protection
Agency
Analysis of and Action on
New York State Department of
Environmental Conservation's
Request for a Waiver of the
Oxygen Content Requirement
in Federal Reformulated
Gasoline
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EPA420-S-05-006
June 2005
of on York
of
for a of the
in
Transportation and Regional Programs Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
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ANALYSIS OF AND ACTION ON
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION'S
REQUEST FOR A WAIVER OF THE
OXYGEN CONTENT REQUIREMENT IN FEDERAL REFORMULATED GASOLINE
I. INTRODUCTION
The New York reformulated gasoline (RFC) area is required under the Clean Air
Act to use RFC containing 2% oxygen by weight, unless that oxygen content
requirement is waived by EPA. New York has requested a waiver of the RFC oxygen
content requirement for the New York RFC area.1 This document discusses the Clean
Air Act oxygen content requirement for RFC, EPA's authority to waive that requirement,
the basis for New York's request for a waiver, and the basis for EPA's determination to
deny New York's request. Additional information is available in an accompanying
Technical Support Document.
A. The RFG Oxygen Content Requirement and EPA's Waiver Authority
Under the Clean Air Act ("CAA" or "the Act"), 42 U.S.C. § 7545(k)(2)(B), nine
geographic areas in non-attainment for the ozone National Ambient Air Quality
Standards (NAAQS), as well as other areas that subsequently are reclassified as
severe ozone nonattainment areas, are required to use reformulated gasoline. CAA §§
211 (k)(10)(D), 211 (k)(5). Certain other ozone non-attainment areas may "opt-in" to the
RFG program as a means of addressing their ozone non-attainment problems. CAA
§211 (k)(6). The Act specifies certain gasoline content requirements for RFG. CAA §
211 (k)(2). Of particular importance for New York's request is the Act's requirement
concerning the oxygen content of RFG and EPA's authority to waive that requirement.
Section 211(k)(2)(B) of the Act provides:
The oxygen content of the [reformulated] gasoline shall equal or exceed
2.0 percent by weight (subject to a testing tolerance established by the
Administrator) except as otherwise required by this Act. The Administrator
may waive, in whole or in part, the application of this subparagraph for
any ozone nonattainment area upon a determination by the Administrator
that compliance with such requirement would prevent or interfere with
attainment by the area of a national primary ambient air quality standard.
The term "New York RFG area" as it is used in this document means the New York State
portion of the New York City Consolidated Metropolitan Statistical Area (CMSA) and the
opt-in area of Dutchess County, New York.
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Thus, EPA has discretion under this section to waive the oxygen content
requirement if it determines that compliance with the oxygen content requirement would
prevent or interfere with attainment of a primary National Ambient Air Quality Standard
(NAAQS) in an ozone nonattainment area. This section requires, at a minimum, that an
applicant seeking a waiver must clearly demonstrate the impact of a waiver for each
applicable NAAQS. See Daws v. EPA, 348 F.3d 772, 779-80 (9th Cir. 2003)(affirming
EPA's evidentiary standard in the context of EPA's denial of California's waiver
request.)2 EPA may take into consideration other available information in evaluating a
request for a waiver.3
A key threshold question before the Agency when considering such a request is
whether there has been a clear demonstration of the air quality impacts of a waiver of
the RFC oxygen content requirement. To address the air quality impacts of a waiver,
one must, as a technical matter, consider the gasoline fuel properties of the RFC that
would likely be sold in the area with and without an oxygen content waiver. From this
information, one must then evaluate the impact that a change in fuel properties would
produce on emissions of pollutants. The expected change in emissions of pollutants
associated with those different RFC blends is needed to evaluate the impact of a
waiver on attainment of a NAAQS. All relevant categories of emissions need to be
considered.
EPA cannot make a determination of interference with or prevention of
attainment of any NAAQS due to compliance with the oxygen content requirement
unless the projected emissions impacts of a waiver are analyzed for each applicable
NAAQS. Absent such an analysis, EPA is not able to determine whether a waiver
would aid, hinder, or have no effect on attainment of a NAAQS.
B. New York's waiver request
In a letter dated January 6, 2003 from New York State Department of
Environmental Conservation (DEC) Commissioner Erin Grotty to then Administrator
Whitman, New York officially requested a waiver under CAA Section 211 (k)(2)(B) from
the federal RFC oxygen content requirement for the New York RFC area.4 The
submission stated that because MTBE would be banned in the State of New York
beginning January 1, 2004, and because of the Act's oxygen content requirement for
RFC, ethanol would be used as an oxygenate in the RFC areas in New York State.
Docket A-2000-10, lll-A-1.
For further discussion of EPA's interpretation of the authority to grant a waiver under
section 211 (k)(2)(B), see Appendix A of Docket A-2000-10, ll-B-1.
Docket OAR-2003-0004, II.D.1.
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DEC asserted that the use of ethanol as a replacement for MTBE in RFC would result
in an increase in Volatile Organic Compounds (VOCs), and oxides of nitrogen (NOx)
during the summer ozone season. DEC further argued that "increases in these
pollutants will immediately interfere with New York's ability to demonstrate reasonable
progress to attain and maintain the federal ozone standard..."
EPA determined that DEC'S submission did not contain sufficient information and
failed to address the requirements specified in the statute. EPA notified NY that
technical and supporting information was needed for EPA to evaluate the merits of the
request. In a letter to DEC dated April 1, 2003, EPA requested clarification and
additional information.5
A subsequent submission dated December 12, 2003 from DEC acknowledged
EPA's April 1, 2003 request for additional information.6 DEC provided some additional
information in support of its waiver request with this correspondence, but generally did
not provide the information requested by EPA, for reasons set forth in its letter.7
II. EPA'S ANALYSIS OF THE INFORMATION THAT NEW YORK DEC SUBMITTED
A. Basis for DEC'S request for a waiver
DEC's request for a waiver is based primarily on its contention that use of
ethanol-oxygenated reformulated gasoline will interfere with attainment of the ozone
NAAQS because:
The NOx and VOC emissions performance of ethanol-oxygenated RFC
will be worse than the emissions performance of the MTBE-oxygenated
RFC supplied to New York prior to its MTBE ban.
Commingling and permeation resulting from ethanol use will increase
VOC emissions compared to MTBE-oxygenated RFC.
Docket OAR-2003-0004, Document II.C.1.
Docket OAR-2003-0004, Document II.D.6.
DEC's stated reasons for not providing the information requested by EPA, and EPA's
responses to those statements (that are not otherwise addressed in the TSD), are set
forth in Appendix B to the Technical Support Document.
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Ethanol-oxygenated RFC will not provide the NOx reduction benefits
expected under the RFC program because the Complex Model does not
fully capture the effects of oxygenates on vehicle emissions of NOx.
Relaxation of the RFC VOC performance standard for 10 percent ethanol
blends, or granting of a 1 psi volatility waiver for 10 percent ethanol blends
could increase VOC emissions.
The transport of ethanol into the New York area would cause an increase
in emissions due to additional ships and barges transporting ethanol into
the New York area for adding to RFC at terminals.
B. Major limitations in the information submitted by DEC
As discussed above, a key threshold technical issue in evaluating a waiver
request is to evaluate the emissions impact of a waiver. The emissions impact of a
waiver is basically a comparison of emissions with a waiver ("waiver") to emissions
without a waiver ("no waiver"). This comparison is needed to clearly demonstrate
whether a waiver would aid, hinder, or have no effect on attainment of a NAAQS.
Certain information is required in order to make a quantitative estimate, or even
a reasonably certain qualitative directional estimate, of the emissions changes that a
waiver might produce. This information includes knowledge of certain emission-related
properties of the reformulated gasoline that would be supplied to New York with and
without a waiver. Models relating these fuel properties to vehicle emissions would then
be used to estimate percent differences in emissions between the "no waiver" and
"waiver" conditions. Additionally, on-road and off-road gasoline emission inventory data
are needed in order to convert relative (%) changes to absolute (tons/day) changes.
Inventory information may be necessary even to perform a directional analysis. The
need for this information is described in detail in the accompanying Technical Support
Document.
New York's submissions included almost no information or analysis of the
expected fuel properties of RFC with and without a waiver. New York did not provide
sufficient information or analysis to show either quantitative or directional estimates of
the emissions differences between "no waiver" and a "waiver" for the pollutants
contributing to ozone formation, NOx, VOCs and CO. Each of these three pollutants
affect ozone to a varying degree, and their emissions rates could be altered by a
waiver. While New York's submissions did contain quantitative estimates of certain
VOC emission changes that could be associated with ethanol use compared to MTBE
use, these estimates were of little use even to estimate the net directional change that a
waiver would produce in VOC emissions, for several reasons which are discussed in
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the TSD.8 Changes in NOx emissions were not quantified, and the lack of adequate
information and analysis means that even the direction of any change in NOx is not
clear. Changes in CO emissions were not addressed.
If New York had provided information and analysis on the change in fuel
properties and associated emissions that a waiver would be expected to produce, and
the resulting impact on ozone, EPA would be in a position to thoroughly review the
basis for these estimates (fuel property estimation and emission modeling
methodology), and evaluate the estimated impact a waiver might have on ambient
ozone.
DEC's original waiver submission did not provide quantitative estimates of the
"no waiver" to "waiver" emission changes, as well as the underlying information
necessary to make such estimates. Consequently, EPA asked for additional
information and analyses to estimate 1) the effect a waiver would have on the
properties of New York reformulated gasoline, and 2) the effect these changes in fuel
properties would have on emissions from highway and off-road vehicles and equipment.
DEC has not provided the requested information.
EPA has considered the information that New York has provided which may be
relevant to an analysis of New York's waiver request. EPA has determined as
described in the Technical Support Document, that the relevant no-waiver to waiver
comparison cannot be made either qualitatively or quantitatively. In making this
evaluation, EPA has considered the information provided by New York with regard to
the potential effect of a waiver on each of the pollutants, NOx, VOC and CO, for both
on-road and off-road gasoline vehicles and engines.
In order to evaluate the adequacy of the information submitted by New York, we
have identified the information on fuel properties, vehicle fleets (e.g., on-road versus
off-road, older technology vehicles versus newer technology, etc.), and emission
sources (e.g., exhaust, "as blended" evaporative, commingling and permeation-related)
that would need to be provided to conduct an adequate waiver/no-waiver analysis. We
have also identified emissions models and other information necessary to make the
relevant emission estimates that could be utilized to make a waiver/no-waiver
comparison.
Based on the available information, EPA has concluded that neither the
magnitude nor even the direction of the NOx and VOC changes that would occur with a
waiver can be determined using the information provided. Although a gross directional
For example, certain other potential VOC emissions changes which could occur were not
quantified, and New York included estimates of VOC emission increases based on
unsupported assumptions about increases in gasoline Reid Vapor Pressure (RVP).
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determination for carbon monoxide (CO) emissions can be made, the change in CO
likewise cannot be quantified with the information provided by DEC.9
III. CONCLUSION
The information that DEC has provided fails to demonstrate what effect a waiver
would have on ozone levels in New York. This is because: 1) there are three pollutants
whose emission rates could be altered by a waiver (NOx, CO and VOC) and all three
affect ozone formation to varying degrees; 2) the lack of information on fuel qualities
with and without a waiver and the lack of other relevant and necessary information
precludes even a directional estimate of the impact of a waiver on NOx and VOC
emissions; 3) the best estimate of the net impact of a waiver on CO emissions is that
CO emissions would be greater with a waiver than without, but the difference cannot
be quantified; and 4) no analysis has been provided or performed, and the information
before the agency does not allow an analysis to be performed, on the combined effect
of these emissions changes on ozone.
Since no determination can be made regarding the overall effect of a waiver on
ozone-related emissions, the information that DEC has provided fails to clearly
demonstrate what effect a waiver would have on ozone. Since this threshold
demonstration has not been made, EPA is not able to determine whether a waiver
would aid, hinder, or have no effect on attainment of the ozone NAAQS, and therefore
cannot determine whether compliance with the oxygen requirement for RFC prevents or
interferes with attainment of the ozone NAAQS in the New York RFC area. EPA
concludes that New York's request therefore should be denied.10
CO plays a far less important role in ozone formation that NOx or VOC. Thus, even
though a gross directional determination can be made, such a determination provides
little useful information in making a judgement about the net impact on ozone formation
from a waiver.
10 New York has not raised any issue concerning interference with attainment of the
particulate matter (PM) NAAQS. However, our conclusions regarding the PM NAAQS
would be the same as those regarding the ozone NAAQS, i.e., New York has provided
insufficient information to clearly demonstrate what effect, if any, a waiver would have on
PM. This is because New York has not provided sufficient information to determine PM-
related emissions for the no waiver and waiver comparison.
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