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
Summary of Public Comments and
Supplemental Response to Comments
&EPA
United States
Environmental Protection
Agency
-------
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
Summary of Public Comments and
Supplemental Response to Comments
Compliance and Innovative Strategies Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
Agency
EPA-420-R-11-006
June 2011
-------
1. Misfueling Mitigation Program 1
1.1 Labeling Requirements 1
1.1.1 Warning Portion of Label 1
1.1.2 Description of Motor Vehicles That Can Use El 5 3
1.1.3 Statements About Prohibition and Damage 5
1.1.4 Addressing Non-English Speakers and Testing Labels 9
1.1.5 Portable Containers 11
1.1.6 Color, Size, Shape, Font, and Placement of Labels 12
1.1.7 Separate Labels for Different Levels of Ethanol 16
1.1.7.1EOandE10 16
1.1.7.2 Blends Greater than El5 18
1.1.8 Coordination with Federal Trade Commission (FTC) 22
1.1.9 E10 Labeled as E15 25
1.2 Product Transfer Document (PTD) Requirements 25
1.2.1 General Support for Proposed PTD Requirements 25
1.2.2 PTD Requirements Downstream of the Point of Ethanol Addition 26
1.2.2.1 Standardization of PTD Language 26
1.2.2.2 RVP 26
1.2.3 PTD Requirements Up To and Including the Point of Ethanol Addition 28
1.2.3.1 General 28
1.2.3.2 Applicability of PTD Requirements to Ethanol Producers 28
1.2.3.3 PTD Language 29
1.2.3.4 Octane 30
1.2.4 General PTD Requirements 30
1.2.4.1 General 30
1.2.4.2 Abbreviations 31
1.2.4.3 Placement of Required Language 31
1.2.4.4 Product Codes 31
1.3 Ongoing Implementation Survey 32
1.3.1 Nationwide Survey Program Requirement 32
1.3.2 RVP Survey 34
1.3.3 Independent Survey Associations 35
1.3.4 Responsible Parties for the Survey 36
1.3.5 Statutory Authority to Require Survey 37
1.3.6 Survey Protocols 38
1.3.7 Portable Analyzers 42
1.3.8 Scope of Survey 43
1.3.9 Survey Reporting Year 43
1.3.10 Small Businesses 44
1.3.11 Visual Monitoring of Pumps 44
1.3.12 Public Availability of Survey Plans and Results 45
1.3.13 Public Input 45
1.4 Program Outreach 46
1.4.1 EPA Public-Private Outreach Program 47
1.4.2 Website for Public Outreach 49
-------
1.4.3 Public Outreach Message 51
1.5 Other Misfueling Mitigation Measures 53
1.5.1 Need for More Mitigation Measures 53
1.5.2 Comparisons to the Ultra-low Sulfur Diesel (ULSD) Program 60
1.5.3 Comparison to the Unleaded Gasoline Program 60
1.5.4EO/E10 Availability and Petition to Require
-------
Forward
EPA published a Notice of Proposed Rulemaking (NPRM) ("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") in the Federal Register on November 4, 2010
(75 FR 68044). EPA received comments on this proposed rule via mail, e-mail, and
facsimile, and at one public hearing held in Chicago, Illinois on November 16, 2010.
Copies of all comments submitted are available at the EPA Docket Center Public
Reading Room. Comment letters and transcripts of the public hearing are also
available electronically through http://www.regulations.gov by searching Docket ID
EP A-HQ-O AR-2010-0448.
For each comment summarized in this document, the name of the business, group or
individual submitting the comment and the document number assigned to the
comment letter is provided. Comment summaries are paraphrased from the original
submissions, often using the same phrasing as the original but not always. EPA's
responses to comments are generally provided immediately following each comment
or group of comments raising similar issues. In many cases, EPA provided responses
to specific comments or groups of similar comments in the Preamble to the final
rulemaking. Rather than repeating those responses in this document, EPA has
referenced the Preamble
111
-------
1. Misfueling Mitigation Program
1.1 Labeling Requirements
1.1.1 Warning Portion of Label
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 2-4
Comment: The label as written will seriously impair long-term progress towards achieving the
country's stated goals for renewable fuels since it will unnecessarily promote skepticism and
concern over any future approval for El5 and create the misperception that El5 is an inferior
fuel. EPA should not use the terms "caution," "warning," or "stop" or the use of a stop sign at the
top of a fuel label since it does not provide consumers any real information regarding the fuel
and may create unnecessary concerns regarding such fuels.
Organization: Minnesota Department of Agriculture
Document Number: EPA-HQ-OAR-2010-0448-0027, p. 1
Comment: When Minnesota became the first state to mandate use of E10, pumps that dispensed
E10 were required to carry a label that specified the contents of the pump, which created
confusion and negative perception among consumers about ethanol, resulting in a decline in use
of E10. Retailers suffered undeserved consequences in the form of lower sales and profits. In
1992, the labels were made voluntary and ethanol blend sales improved dramatically. Since
1997, Minnesota has blended 10 percent ethanol into nearly all of its gasoline without significant
problems. Based on this example, commenter notes that labels for El 5 are unnecessary and
should not be required.
Organization: National Association of Convenience Stores (NACS) and Society of Independent
Gasoline Marketers of America (SIGMA); National Petrochemical and Refiners Association
(NPRA)
Document Numbers: EPA-HQ-OAR-2010-0448-0055, p. 10; EPA-HQ-OAR-2010-0448-0067,
p. 11
Comment: A critical element to the label is the key advisory word. The Agency proposed the
word "CAUTION." Commenter believes that "CAUTION" strikes the appropriate balance
between more dire words (such as "WARNING") and less eye-catching words (such as
"ATTENTION").
Organization: Petroleum Marketers Association of America
Document Number: EPA-HQ-OAR-2010-0448-0080, p. 5
Comment: EPA should not use the word "STOP" on any portion of the label, since this word
would confuse consumers with respect to functional operability of the dispenser and may
discourage approved fueling.
Organizations: Alliance of Automobile Manufacturers (Alliance); Petroleum Marketers
Association of America (PMAA)
Page 1 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 12; EPA-HQ-OAR-2010-0448-0080,
0096, pp. 3-4
Comment: EPA should use the word "WARNING!" instead of the proposed "CAUTION" or the
alternative "ATTENTION." The word "WARNING" is used on EPA diesel fuel dispenser labels
and should therefore be used on the El5 label for consistency. In addition, the word
"WARNING" generally means to desist from a specified course or prohibited action. Producers
are the known parties to consumers and therefore the prime target for lawsuits and the only
defense to such lawsuits (and a meager one at best) is a strongly worded dispenser label that fully
informs consumers about the product they are using. The word "WARNING" is a more
appropriate choice because in both common law jurisprudence and popular culture it generally
follows that a person who engages in a prohibited act in spite of an informed warning is
ultimately responsible for the consequences that follow. Commenter also specifically states that
the word "WARNING" should be followed by an exclamation point.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, pp. 2, 3
Comment: The proposed "CAUTION" label is inadequate and understates the needed
admonition. EPA should use much clearer and stronger language, either "WARNING" or
"STOP" in large type, of at least 24-point font. EPA should consider larger font sizes, perhaps as
large as 30-point type across the top of the pump label. Commenter supports using the depiction
of the "stop sign" with the word "STOP" as the label if EPA adopts the use of the word "STOP"
as the top line message for the label. Labels for engine and equipment for which El5 is not
approved could state "WARNING Do Not Fill with E15", "STOP Do Not Fill with E15",
"WARNING-El5 Prohibited" "STOP-El5 Prohibited", "WARNING-NO El5" or "STOP-
NO E15". For new cars and trucks for which E15 is approved, the label could state "E15
Approved" or "El5-OK."
Organization: Petroleum Marketers and Convenience Stores of Iowa (PMC)
Document Number: EPA-HQ-OAR-2010-0448-0070, p. 1
Comment: EPA should consider allowing individual retailers to choose between "WARNING,"
"CAUTION," and "STOP." Because the retail facility owner offering E15 is doing so under the
complex circumstances created by the Agency's decision to allow El 5 for use in 2007 and newer
light-duty motor vehicles, the individual facility owner should be given the choice as to what
legal warning component best suits their retail facility offering El 5 in order to limit their liability
under the CAA.
Response:
The comments above regarding the choice of word for the warning portion of the label
are addressed in section III.B.2 of the Preamble of the final rule. Related liability issues
are discussed in section IV.E.2.a of the Preamble and section 2.5.2 of this document.
We disagree with the comment that E15 labels are unnecessary because E10 has been
present in nearly all gasoline in Minnesota without significant problems. As we explained
in our recent El5 waiver decisions, test data and other information including engineering
analysis demonstrate El5 will not have a significant adverse impact on the emissions of
MY2001 and newer light-duty motor vehicles. However, there is insufficient test data to
make the same demonstration for other vehicles and nonroad equipment, and there are
Page 2 of 126
-------
engineering reasons for concern that El 5 may cause or contribute to the failure of those
vehicles and equipment to comply with emission standards. EPA therefore included as a
condition of the E15 partial waivers that E15 pumps be labeled to inform consumers of
the appropriate use of the fuel in order to avoid misfueling. The E15 label that EPA is
promulgating in this rule serves the same purpose, and will promote efficient and
effective implementation of the waiver labeling condition and further reduce the potential
for misfueling.
As discussed in the Preamble, we selected "Attention" as the appropriate warning
component of the label in light of public comments and expert advice. We also decided to
establish a standardized El 5 label so that consumers will more readily recognize and
heed it from one retail station to the next. However, we are also providing fuel providers
with an opportunity to seek EPA approval of an alternative label that may vary in certain
ways as needed to address issues such as pump configurations that may require small
changes in size or shape to accommodate the label. Fuel providers may also supplement
the required El 5 label with other labels and signs that the fuel provider considers
appropriate, considering its customers or other circumstances.
1.1.2 Description of Motor Vehicles That Can Use E15
What Commenters Said:
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071, p. 4
Comment: Given the wide range of potential consumer engines, the notation "This fuel might
damage other vehicles or engines," should read, "This fuel should not be used in: older vehicles;
engines such as all motorcycles; all heavy-duty engines such as school buses, transit buses, and
delivery trucks; boat motors; all off-road vehicles such as boats and snowmobiles; all engines in
off-road equipment such as lawnmowers and chain saws; all model year 2000 and older cars,
light-duty trucks, and SUVs; and all 2001-2006 cars, light-duty trucks, and medium-duty
passenger vehicles." This more detailed statement will ensure that when owners are fueling older
vehicles or any of the numerous small engines subject to failure from ethanol fuels that they are
made aware of all potential consequences of using E15 by language on the label.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Numbers: EPA-HQ-OAR-2010-0448-0067, p. 11
Comment: A fourth category should be added to the El5 pump label: "2007 and newer medium-
duty passenger vehicles." The "2007 and newer medium-duty passenger vehicles" category is
listed in EPA's partial waiver approval for El 5 at 75 FR 68094 and 68095 (and at 75 FR 68048
in the misfueling mitigation proposal). This should also be listed on the El 5 pump label if it is
expressed in a way that consumers will understand.
Organization: National Association of Convenience Stores (NACS) and Society of Independent
Gasoline Marketers of America (SIGMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0055, p. 11
Comment: The label should include clear and concise language advising the consumer of the
authorized uses of E15. Commenter believes the best terminology to use for this purpose would
Page 3 of 126
-------
read: "Approved for use only in flexible fuel vehicles and 2007 and newer cars and light duty
trucks."
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 12
Comment: In the listing of vehicle types permitted to use E15, EPA should list "Flex-Fuel
Vehicles" first, ahead of the other listed vehicles. Commenter also states that some new cars sold
in 2007 may actually be 2006 model year vehicles. As such, EPA should add "Model Year" to
the legal approval statement. In addition, the approval for use on the label should be conditional
upon the consumer being aware of vehicle manufacturer advice. Commenter adds that to increase
white space it would be acceptable to shorten the sentence by combining cars and trucks (e.g.,
"Use only in certain Model Year 2007 and newer gasoline cars and light duty trucks...").
Organization: Petroleum Marketers Association of America (PMAA)
Document Numbers: EPA-HQ-OAR-2010-0448-0080, 0096, p. 3
Comment: The proposed legal component notice for the El 5 label is repetitive and too long.
More concise notice is required to maintain the consumer's attention and provide clarity. As an
alternative, EPA should use the following language for the legal approval component: "Use only
in flex-fuel vehicles and 2007 and newer cars and light duty trucks."
Organization: ValvTect Petroleum Products
Document Number: EPA-HQ-OAR-2010-0448-0086, p. 2
Comment: Since most boaters purchase gasoline for their trailerable boats at land-based stations
where E15 will be available at a lower price than E10, the potential for misfueling is high. EPA
should incorporate more robust warning labels for boaters, particularly since misfueling would
put the boater at risk (e.g., the risk of stalling several miles offshore).
Response:
The comments above regarding the label's description of vehicles and other products that
can use El 5 are largely addressed in section III.B.2.b of the Preamble of the final rule.
Related liability issues are discussed in section IV.E.2.a of the Preamble and section 2.5.2
of this document.
In response to comments raising particular issues for boats, we added a specific reference
to "boats" to the description of the vehicles and equipment that may not use El 5 to
address concerns about whether consumers consider boats to be either vehicles or
equipment and the misfueling risk for boaters. For reasons discussed in section III.F of
the Preamble, we do not agree that E15 will necessarily be made available at a lower
price than E10 and that other mitigation measures are necessary to establish at this time.
We did not adopt the suggestion of indicating on the label that El 5 is "approved" for use
in specific types of vehicles because consumers might interpret that as a broader approval
or endorsement than EPA has provided or is legally authorized to provide. Under the
Clean Air Act, EPA may waive the statutory prohibition on the introduction into
commerce for a fuel or fuel additive that is not substantially similar to the fuel and fuel
additives used to test for compliance with vehicle standards, if a demonstration is made
that the new fuel or fuel additive will not cause or contribute to failures of emissions
Page 4 of 126
-------
standards. In the case of El 5, EPA granted partial waivers allowing El 5 to be introduced
into commerce for use in MY2001 and newer vehicles based on testing, engineering and
other information about the impact of El 5 on vehicle emissions. EPA's action is thus
limited to allowing El5 to be introduced into commerce for use in certain vehicles that
available information shows can continue to meet emissions standards when operated on
E15.
We also did not adopt the suggestion that we include "model year" on the label in
reference to the vehicles that can use El 5. As noted in the Preamble of the final rule, FTC
staff advised that label text be kept to a minimum in order to increase the likelihood that
consumers read the label. We believe the final label's reference to "2001 and newer"
passenger vehicles will be understood by consumers as referring to the model year, since
vehicles are prominently advertised and sold as from a particular model year. Owner's
manuals also generally indicate the model year of the vehicle.
1.1.3 Statements About Prohibition and Damage
What Commenters Said:
Organizations: National Petrochemical and Refiners Association (NPRA); National Association
of Convenience Stores (NACS) and Society of Independent Gasoline Marketers of
America (SIGMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0067, p. 11; EPA-HQ-OAR-2010-0448-0055,
p. 11
Comment: EPA proposed "Federal law prohibits its use in other vehicles and engines." EPA
should replace this statement with the following: "Federal law prohibits its use in all other
vehicles and nonroad engines and equipment." NACS and SIGMA recommend that the label
include clear and concise language advising the consumer of the prohibited uses of E15. NACS
and SIGMA support the use of the bolded and italicized word "prohibits" and advises expanding
the phrase to read as follows: "Federal law prohibits use in other vehicles and nonroad engines
and equipment."
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 3
Comment: EPA's proposed legal warning component is generally sufficient. However, for the
sake of consistency with the prohibition language in other EPA dispenser labels, the following
alternative to the legal warning component of the proposed El 5 label should be used: "Federal
law prohibits use in all other model year vehicles and engines." The proposed language for the
technical warning component in the NPRM is not strong enough to capture consumer attention
and convey the consequences of misfueling. EPA should add language to the technical warning
component that warns against the use of El 5 in nonroad gasoline powered equipment such as
lawn mowers, leaf blowers, and chain saws. There remains considerable debate over the effect of
El 5 on this type of equipment, particularly with respect to potential for catastrophic failure of
plastic fuel storage tanks. For this reason, PMAA supports the following alternative language for
the technical warning component of the El 5 label: "May DAMAGE all other model year
vehicles and engines"; "Not recommended for gasoline powered equipment."
Page 5 of 126
-------
Organizations: Alliance of Automobile Manufacturers (Alliance); National Association of
Convenience Stores (NACS) and Society of Independent Gasoline Marketers of America
(SIGMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 12; EPA-HQ-OAR-2010-0448-0055,
p. 11
Comment: Commenters generally agree with including the statement "this fuel might damage
other vehicles" on the label's technical warning component since it is essential to include some
statement concerning the potential damage to engines that could occur if E15 is used in non-
approved engines. NACS and SIGMA, suggests that EPA shorten the advisory to read as
follows: "May cause damage." This would benefit the readability of the label. This commenter
provides an illustration of a possible label that incorporates this as well as other suggestions for
the label design.
Organization: National Petrochemical and Refiners Association (NPRA); Pennsylvania
Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 11; EPA-HQ-OAR-2010-0448-0058,
p. 2
Comment: The warning on the proposed label (i.e., "This fuel might damage other vehicles") is
too temperate to inform the public of the damage that could occur from the use of El 5.
Misfueling has been observed to cause damage to vehicles' emission control systems, especially
those manufactured prior to 2000. The label is misleading and vague in identifying nonroad
engines as a group of engines to which damage may occur. Also, the current proposed statement
could imply that El5 will not damage waivered vehicles under any circumstances, which no one
can guarantee. NPRA notes that ongoing CRC testing may yet show waivered vehicles could
have problems. NPRA notes that the statement "This fuel may damage other vehicles" on the
proposed label should be replaced with the statement "This fuel may cause damage in non-
approved vehicles and engines." PA DEP suggests that the statement read as follows: "This fuel
will damage other vehicles. Federal law prohibits its use in other vehicles and engines, including
off-highway vehicles and engines."
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 7-8
Comment: EPA's proposed label fails to meet the federal safety label formatting requirements
prescribed by ANSI Z535.4 for both content and alternative language comprehension.
Commenter notes that they strongly support the labeling concept proposed by Robert Stegall
during his oral testimony presented at the November 2010 hearing, which uses the international
symbols for "use" and "do not use" and includes graphical representations of appropriate and
inappropriate products, thereby overcoming and minimizing potential confusion stemming from
language barriers. For the informational component, the wording should simply read
"CONTAINS E-15 ETHANOL" since it is clear and concise. The legal component should read
as follows: "USE OF THIS FUEL IN ENGINES AND EQUIPMENT NOT APPROVED BY
EPA IS A VIOLATION OF FEDERAL LAW AND COULD RESULT IN INJURY OR
PROPERTY DAMAGE." With regard to the technical warning component, EPA's proposed
language is insufficient since it fails to identify the types of vehicles and engines for which use is
prohibited and fails to address portable containers.
Organizations: National Marine Manufacturers Association (NMMA); Outdoor Power
Equipment Institute (OPEI)
Page 6 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0095, pp. 4-6; EPA-HQ-OAR-2010-0448-
0053, pp. 16-17
Comment: EPA's proposed label for El 5 pumps does not identify the nature of the hazard or
indicate preventative action. In addition, it is not "sufficiently strong enough" to capture the
user's attention, particularly given the safety hazards that could result from misfueling. Given the
increased risks of serious hazards (e.g., unintended clutch engagement of chainsaws), EPA
should ensure that the final label contains warning symbols or icons that comply with the well-
recognized format established under the ANSI Z535 standards. The hazard-consequences of
misfueling ("injury and property damage") should also be addressed in the label content.
Commenters provide additional discussion, and NMMA specifically notes that the language on
the pump should state "Will Cause Injury or Property Damage" since El 5 is likely to result in
engine damage and increased emissions for unapproved engines and products. NMMA supports
the using of "WARNING" with the standard ANSI icon indicating potential danger. The label
should incorporate language, or somehow communicate, that use of the fuel is (1) illegal for use
in marine and other nonroad engine applications; (2) WILL damage the product; (3) will void the
product warranty. NMMA adds that referencing damage to "vehicles and engines" does not
effectively or clearly communicate the danger or legal prohibition, particularly to boaters since it
is unreasonable to assume that a boat owner will act as though his vessel or engine is a vehicle.
OPEI provides an illustration (Exhibit D) of their recommended label for pumps that dispense
fuels containing between E10 and E15 blends.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 3-7
Comment: EPA's label, as proposed, does not provide the critical information to the consumer
to make an informed decision. EPA should finalize a label that is a single EPA-FTC label and as
such, commenter provides a suggested label that is a combination of their recommended label to
the FTC in May 2010 and EPA's proposed label. Commenter provides both an illustration of
their proposed label as well as additional discussion to describe each portion of the label,
including components for: information, legal approval, technical warning, and legal warning.
With respect to the technical warning, EPA should include the statement "Its use may cause
damage to vehicles, engines, and equipment." and a statement that fuel economy would be
adversely affected. With regard to the legal warning, the label should clarify that "Federal law
prohibits use in other vehicles and nonroad engines and equipment," which clearly states the fact
that unauthorized use is a violation of federal law. Commenter also provides specific suggestions
with regard to font size and label placement on the pump to maximize visibility, including the
suggestion that the label be sized as close to the octane label dimensions as possible due to space
constraints on some dispensers.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 2
Comment: EPA's proposed language does not provide adequate warning to the consumer and
does not illustrate clearly enough the harm that could result. Specifically, the statement "This
fuel might damage other vehicles" does not convey the extensive vehicle damage that could be
caused. In addition, the statement "Federal law prohibits its use in other vehicles and engines"
does not communicate the significant physical injuries that may result from using El5 in small
engines, such as lawn mowers, chain saws, and weed-eaters. These types of small engines are
used extensively, often by teenagers and young adults who may not fully grasp the prohibition or
Page 7 of 126
-------
may not even know to look for such labels at the pump dispenser. The potential risks demand
more effective measures be employed to prevent the misuse of E15.
Organization: Alliance of Automobile Manufacturers (Alliance), Association of International
Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 5-8, 12; EPA-HQ-OAR-2010-0448-
0079, pp.13-14
Comment: In addition to the four components EPA proposes (ethanol content, legal approval,
technical warning, and legal warning), a statement requesting that consumers check their owner's
manual should also be a universal requirement for all ethanol blend labels finalized under this
rulemaking. Manufacturers need their customers to use and rely on that manual, not just for fuel
recommendations but for all kinds of issues, including safety. EPA cannot ignore the automakers'
role in advising customers about the proper fuel to use in their cars or warranty contracts with
customers. Alliance specifically requests that the following statement be used: "Check Vehicle
Owner's Manual for manufacturer recommendations and warranty." AIAM cites to the CRC
study (Impact of E15/E20 Blends on OBDII Systems - Pilot Study; March 2010) and EPA
statements in the NPRM to support their assertion that misfueling in model year 2006 and older
vehicles is likely to cause or contribute to higher OBD MIL illumination and resultant warranty
claims. Commenters provide additional discussion on this issue, noting that the failure of the
proposed rule to align the fuel dispenser labels with the existing owner guides, or to warn
consumers about the potential consequences of fueling with El 5, seems almost certain to lead to
customer dissatisfaction, disputes, and/or litigation.
Response:
The comments above regarding the prohibition and damage statement portion of the label
are largely addressed in section III.B.2.C of the Preamble of the final rule. Related
liability issues are discussed in section IV.E.2.a of the Preamble and section 2.5.2 of this
document.
Some commenters raised the issue of applying ANSI standard Z535.4 for communicating
safety-related information to the El5 label. ANSI (American National Standards
Institute) is a private sector, non-profit membership organization that promotes and
facilitates voluntary consensus standards and the means to assess them within the private
sector. The standards range from aspects of product design (size, specifications,
operation) to internal environmental procedures in the manufacturing standards to safety
labels. The standards ANSI develops are voluntary and do not have the force of law. In
instances in which ANSI standards are incorporated by reference in a government
regulation, then the regulation itself is the mechanism that would require the use of a
particular standard. According to ANSI, the Z535.4 standard applies to product safety
and provides guidance (e.g. colors, language and icons) for warnings about the hazards of
equipment and their operation.
While we agree that government agencies should consider relevant consensus standards
in developing regulatory requirements, we do not believe that the ANSI Z535.4 standard
for communicating safety information is appropriately applied to the El5 label. The
purpose of the E15 label is to minimize misfueling with E15 because of the potential
damage that E15 could cause to the emission control-related systems of vehicles, engines
Page 8 of 126
-------
and equipment not covered by the El5 partial waivers and the potential emission
increases that damage to those systems could cause. The risk to those systems generally
requires exposure to El 5 over a period of time. Several commenters urged EPA to
include a warning of potential injury on the El 5 label. As explained in the Preamble, the
information before the Agency (i.e. test data and other information provided by the El5
waiver applicants and in public comments on the waiver request and on the proposed
rule) does not provide a clear or sufficient basis for including such a broad warning. It
likewise does not support application of ANSI Z535.4 to the E15 label. To develop a
label that would effectively convey information that consumers need to avoid misfueling,
we considered a broad range of public comments and expert advice, including advice
from labeling experts at the Federal Trade Commission. In many cases, the comments
and advice did not support following specific components of the ANSI Z535.4 standard.
A number of the commenters urged EPA to state on the El 5 label that El 5 "will" damage
vehicles and equipment not covered by the partial waivers and "will" void the product
warranty for those products. The test data and other information on which we based our
denial of the El 5 waiver request for such products do not support the suggested damage
language. As we explained in the October 2010 waiver decision, there is insufficient test
data to show that the vehicles and equipment not covered by the partial waivers could
continue to meet emission standards if operated on El 5, and there are engineering
reasons for concern that El 5 may cause or contribute to the failure of those vehicles and
equipment to meet emission standards. Test data are also insufficient to show that
vehicles and equipment not covered by the partial waivers will be damaged. While
engineering analysis suggests that damage could occur, it does not establish that it will
occur. As a result, it would be inappropriate to indicate on the label that El 5 "will" cause
damage. At the same time, we have revised the relevant label language from "might" to
"may" to better convey that there is some potential for El 5 to damage older vehicles and
gasoline-powered equipment.
It would be also inappropriate for the label to state that El 5 "will" void product
warranties. Manufacturer warranties vary and not all manufacturers condition their
warranties on use of particular fuels. Also, as discussed further in the section of the
Preamble and this document that address liability issues, while EPA regulations
governing emission warranties allow a manufacturer to condition emission warranties on
use of a broadly available fuel, manufacturers may not deny a warranty claim based on
use of a different fuel if that fuel did not cause the problem for which the warranty claim
is made.
1.1.4 Addressing Non-English Speakers and Testing Labels
What Commenters Said:
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 16-17
Comment: A relatively high percentage of commercial landscapers that purchase fuel for lawn,
garden, and forestry products will not be able to read or comprehend EPA's proposed English-
narrative warning label. Therefore, generic symbols or icons that comply with the format under
the ANSI Z535 standards should be used.
Page 9 of 126
-------
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, pp. 2-3
Comment: It is not clear from the proposal that EPA has conducted any consumer research to
understand how the labels will be understood by the public, particularly those with low literacy
or who are non-English speakers. EPA should conduct consumer research to determine the most
effective messages to convey this information to consumers. EPA should include graphics,
images, and/or icons on the label to depict the types of engines and vehicles that should not be
fueled with El 5. A series of images such as lawnmowers, boats, motorcycles, gas cans (used for
refueling small engines) and/or other small engines such as chainsaws depicted in a circle with a
slash or X across the image would convey to consumers not to use El5 fuel for such engines.
Absent such clarity, it is doubtful that consumers would understand that the phrase "other
vehicles and engines" refers to their particular engine or vehicle.
Organization: ECHO, Inc.
Document Number: EPA-HQ-OAR-2010-0448-0033, p. 2
Comment: Commenter notes generally that the proposed label may not be understood by the
non-English speaking portion of the U.S. population and should include symbols. Commenter
provides an example of the type of labeling features they would like EPA to incorporate.
Organizations: National Marine Manufacturers Association (NMMA); Outdoor Power
Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0095, p. 5; EPA-HQ-OAR-2010-0448-0053,
pp. 16-17
Comment: Consistent with ANSI Z535.3 requirements, EPA should conduct a human
comprehension test of at least 50 people to make sure that the warning symbols in the final label
will achieve at least an 85% comprehension rate. NMMA adds that EPA should also consult
relevant industry partners to test various market segments, such as boaters or outdoor power
equipment users specifically. NMMA offers their assistance to the Agency in testing the label
with real audiences. EPA should also consider testing the label before a panel of human factors
experts, or experts in safety signage and warning language.
Response:
The comments above regarding non-English speakers are addressed in section II.B.2.d of
the Preamble of the final rule. In response to comments about label testing, EPA
considered copy testing the proposed and other label designs but, in view of limited
Agency resources, we decided to rely on consideration of public comments (including
input from industry experts), our recent labeling experience (i.e., ULSD), and expert FTC
staff advice to develop an effective label. For the final El 5 label, we adopted the basic
format, fonts and color scheme of FTC's existing labels for alternative fuels and proposed
labels for mid-level ethanol blends, so we expect the new El5 label to look familiar to the
public and be understood as providing additional information concerning the appropriate
use of El 5. Fuel providers may supplement the El 5 label with additional signage or other
means of communication to provide more information (including translations) to their
customers as appropriate to their circumstances. In addition, the final rule provides some
flexibility for development and use of alternative El 5 labels with EPA approval.
Page 10 of 126
-------
1.1.5 Portable Containers
What Commenters Said:
Organizations: National Marine Manufacturers Association (NMMA); Outdoor Power
Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0095, p. 3; EPA-HQ-OAR-2010-0448-0053,
p. 4
Comment: Nonroad products are generally fueled from portable containers, which are in turn
fueled at the same time and location as the vehicle utilized to transport the container from the
filling station to the location of the marine or off-road equipment. Many types of nonroad
products are exclusively refueled from portable containers, which have a range of opening sizes
for refueling of the container. Thus, any fuel dispensing nozzle used to fill a vehicle could also
be used to fill the portable container. OPEI provides additional discussion and asserts that the
labels for pumps dispensing fuels greater than E10 should also warn against those fuels being
dispensed into portable containers. NMMA also provides additional discussion, noting that
boaters put the same gasoline in their boats as they put in their cars, trucks, and outdoor power
equipment. This commenter asserts that EPA's proposal fails to address the risk of misfueling in
cases where portable fuel tanks are the primary mechanism to obtain fuel.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 11
Comment: It is a stretch to assume that an individual filling a 2007 or newer light-duty vehicle
with El 5 fuel at the pump will conduct a separate transaction to fill a portable fuel container that
will be used to fuel nonroad engines/equipment. Retail fuel outlets focus their efforts on
improving customer convenience and minimizing overhead costs - both of which will be
compromised when multiple transactions/stops are required in order to avoid misfueling. It is
unreasonable to expect the typical consumer to understand why a fuel that is acceptable for their
light duty vehicle is not acceptable for their other gasoline powered engines/equipment.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 2-4
Comment: EPA should not proceed with the proposed regulation because it is deficient and
counteracts the express purpose of the waiver denial for nonroad engines and equipment. EPA's
decision to partially approve El5 for new motor vehicles poses substantial problems for the
boating and marine manufacturing community relating to consumer confusion, misfueling, and
the long-term availability of compatible gasoline. The risk of misfueling is uniquely high in the
recreational marine sector for a variety of reasons including the fact that the overwhelming
majority of recreational boats are towable and refueled at regular automotive gas stations.
Boaters typically avoid fueling at marina or on-water fuel docks because of the premium paid
and because marina fuel docks are also relatively rare in terms of overall fuel stations.
Additionally, many boaters utilize portable fuel tanks to fill up their secondary marine equipment
(e.g., generators, small-horsepower motors). EPA's proposal fails to contemplate the risk of
misfueling in cases where portable fuel tanks are the primary mechanism to obtain fuel.
Ultimately, boaters put the same gasoline in their boats as they put in their cars, trucks, and
outdoor power equipment. EPA's current policy pathway to "bifurcate" the fuel supply will
substantially confuse consumers and jeopardize the performance of their products, and
potentially their safety.
Page 11 of 126
-------
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053; pp. 4-5
Comment: As part of the administrative record in this rulemaking, EPA needs to address the
issue of El 5 storage and make sure that consumers fully appreciate the hazards. In this context,
commenter asserts that pump labels should warn against dispensing fuels with ethanol greater
than 10% into portable containers. Commenter also indicates that EPA's analysis should address
the El 5 fuel distribution and storage issues and concerns raised by Jimmy Eavenson of MTD at
the Chicago hearing, which include: 1) E-fuels can deteriorate quickly with accelerated results
occurring with heat, moisture, and UV exposure (can happen within one month of storage); 2)
most nonroad fuel systems are not sealed and this results in fuel contamination and loss of
volatiles; 3) multiple concerns associated with material compatibility - e.g., permeation with E-
fuels has been at significantly higher rates through certain plastics, nylon, rubber, etc.; and 4)
increased engine performance concerns with storage or use of E-fuels - e.g., metallic component
and system corrosion by-products restrict orifices, clog filters, etc.
Response:
For the reasons discussed in Preamble section III.B.2.e, the Agency considered
prohibiting dispensing of El 5 into portable containers but decided that it is not necessary
or appropriate. As explained in the Preamble, we believe that the misfueling mitigation
program established in today's action and under the El5 partial waivers will adequately
address the misfueling of vehicles, engines, and equipment not covered by the partial
waivers. As part of that program, fuel providers are encouraged to provide more
information, including warnings against dispensing El5 into portable containers for use
in nonroad equipment, to their customers as appropriate to their circumstances. (See
Preamble section IV.E.2.a for discussion of retailers with a high proportion of customers
fueling nonroad vehicles.) Misfueling mitigation measures that would be appropriate for
a retailer to employ in addition to those required by today's rule may vary depending on
the particular circumstances at, and customers served by, the retailer. Regarding
incompatibility with materials used in nonroad equipment, EPA notes that this rule
specifically prohibits El5 use in nonroad equipment and is designed to minimize the
potential of misfueling of such equipment as well as vehicles and engines not covered by
the El 5 partial waivers.
1.1.6 Color, Size, Shape, Font, and Placement of Labels
What Commenters Said:
Organization: Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0088, p. 3
Comment: Fuel dispensing equipment today contains a myriad of product notifications,
warnings, and consumer information. There are state, federal, and market driven obligations that
may vary greatly between regions and markets. Ultimately, it is the gasoline marketer that will
have the best insight into how to inform consumers about the availability of E15, and they will
be highly motivated to avoid misfueling. Rather than proscribing a one-size fits all label, EPA
should allow gasoline marketers to determine the color scheme and appropriate size of the El 5
label.
Page 12 of 126
-------
Organization: IL Corn Growers Association (ICGA)
Document Number: EPA-HQ-OAR-2010-0448-0092, p. 2
Comment: It is important to give the petroleum marketers and gasoline retailers some flexibility
in the label size, color, and shape since they are the ones responsible for informing the consumer
of what vehicles can use up to E15 fuel.
Organizations: Growth Energy; National Association of Convenience Stores (NACS) and
Society of Independent Gasoline Marketers of America (SIGMA); Outdoor Power
Equipment Institute (OPEI); National Marine Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0083, p. 2; EPA-HQ-OAR-2010-0448-0055,
pp. 8-9; EPA-HQ-OAR-2010-0448-0053, p. 13, 16; EPA-HQ-OAR-2010-0448-0095, pp.
4-5
Comment: The final rule should require warning labels to be located next to the product-
selector, and not the nozzle. NACS and SIGMA added that this will ensure that customers notice
the warning label as they choose what product to purchase, which is the crucial moment when
the label's purpose is served. If the label is located closer to the nozzle, customers are likely to
have already selected a product by the time they notice the label, rendering it less effective.
These commenters added that the labels should also have an adhesive requirement to avoid easily
peeling and falling off of the pump.
Organizations: Alliance of Automobile Manufacturers (Alliance); National Marine
Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 12; EPA-HQ-OAR-2010-0448-0095,
p. 7
Comment: The label warning consumers not to use El 5 in certain products and engines should
be placed directly in the consumer's line of sight on the fuel pump, clearly visible, and with
sufficiently strong warning symbols to capture his or her attention. Alliance specifically noted
that labels should be placed in the top one-third of the pump housing rather than the top two-
thirds. NMMA noted that should this require fuel retailers to move existing labels or signs on
fuel dispensers, EPA should require and enforce the movement of existing labels. The risks
posed by misfueling are substantial enough to warrant EPA's aggressive enforcement of
prominent placement of this label.
Organizations: ECHO, Inc.; Specialty Equipment Market Association (SEMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0033, p. 3; EPA-HQ-OAR-2010-0448-0094,
p. 3
Comment: Commenters note generally that the label should be placed where the consumer can
easily view the information. SEMA recommends that for pumps with multiple activation buttons
and one hose, the label should be on the button and that for pumps with multiple hoses, it could
appear in the same location as the octane ratings for the other hoses (or above/below the octane
rating).
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 4-5
Comment: EPA should ensure the implementation of a clear, concise, strong, and standard
warning label across all retail fuel pumps selling E15. These labels should be placed directly
above or below (or next to) the button a consumer would use to select the fuel grade. This
Page 13 of 126
-------
placement should be tested for highest visibility and mandated consistently across all fuel pumps.
Additionally, EPA should require uniform, visible colors and standard fonts and font sizes for all
labels. EPA should also incorporate standard images that communicate to consumers non-
verbally, as in a boat or marine engine circled and crossed out to indicate that El5 is not
approved for marine use. In addition, EPA should work with industry to settle on national,
uniform language to outline the specific nature of the danger to operators of unapproved
equipment.
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 10
Comment: The proposed shape of the label, which mirrors that of the label used for
communicating the sulfur levels in on-road diesel fuels, is relatively standard and does not stand
out on a product dispenser. The label should be designed to differentiate it from other labels. One
shape recommended by many experts is the octagonal design of a stop sign. Other shapes to
consider include a starburst or the triangular symbol for "hazard." Commenter strongly
recommends that the Agency design a mandatory label in some shape other than a square or
rectangle. The commenters add that while the proposed neon-orange color is intended to attract
the attention of the consumer, industry experts advise that the most effective color combination
for close proximity viewing is a yellow background with black lettering. EPA should change the
required label as recommended by the experts.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, pp. 4-5
Comment: EPA should select a unique shape for the label (such as a triangle or other design) to
make sure it stands out from the existing square and rectangular dispenser labels currently in use
(and should be as large as possible to ensure visibility). EPA should ensure that the color
scheme, layout, dimension, wording, and letter font for the El5 dispenser label should be
consistent with other labeling requirements. While regulatory flexibility in the design aspects of
dispenser labels under the ULSD regulations were initially welcomed by petroleum marketers,
the lack of consistency in label design resulted in confusion and uncertainty with respect to
compliance and enforcement. EPA should adopt specific label size, color, dimension and design
requirements similar to those specified for dispenser labels under the Federal Trade Commission
(FTC) regulations. Commenter provides additional discussion and specifically notes that the
label should have contrasting colors on the upper and lower portions.
Organization: ECHO, Inc.
Document Number: EPA-HQ-OAR-2010-0448-0033, p. 2
Comment: Commenter notes generally that the color of the proposed label does not conform to
ANSI standards.
Organization: North Dakota Ethanol Council
Document Number: EPA-HQ-OAR-2010-0448-0089, p. 2
Comment: The El5 label should have green lettering and a blue "e" and should be consistent
with North Dakota's current E10 label, which was originally created by the Ethanol Promotion
and Information Council (EPIC).
Page 14 of 126
-------
Organizations: Alliance of Automobile Manufacturers (Alliance); National Petrochemical and
Refiners Association (NPRA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 11; EPA-HQ-OAR-2010-0448-0067,
Comment: EPA should add "El 5" to the top of the label to identify the type of gasoline.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 3
Comment: Fuel that is approved for all vehicles and engines should be labeled with the word
"ATTENTION" in 24-point type or larger and include the ethanol concentration and which
engines and vehicles the fuel is approved for.
Organizations: National Marine Manufacturers Association (NMMA); Outdoor Power
Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0095, p. 5; EPA-HQ-OAR-2010-0448-0053,
pp. 16-17
Comment: EPA should ensure that the final label contains warning symbols or icons that
comply with the well-recognized format established under the ANSI Z535 standards, which are
the most credible and well-respected standards that govern hazard warnings, including the
ignition hazards at gasoline pumps at fuel stations. Commenters provide additional discussion
and OPEI provides an illustration (Exhibit D) of their recommended label, which relies on
generic symbols that have been put into the ANSI Z535 format. NMMA notes that EPA should
explicitly state products for which El 5 is prohibited and recommends that the label include
standard images or icons of a range of products — boats, lawnmowers, heavy-duty trucks,
snowmobiles, motorcycles, old autos, new autos, etc. — with corresponding circles and red
slashes for unapproved products. These images should be accompanied by language explaining
the legal prohibition and communicating the danger ("May Cause Injury or Property Damage")
in proximity to a standard warning or hazard icon developed by ANSI. This commenter
specifically states that EPA should engage ANSI in label development.
Response:
The comments above regarding the color, size, shape, font, and placement of labels are
largely addressed in section III.B.2.f of the Preamble of the final rule. In response to
several comments, we considered different shapes for the El5 label, but decided to retain
the proposed shape in order to be consistent with FTC's alternative fuel labels and
possible ethanol labels. In general, we adopted a number of aspects of FTC's label design
so that the El 5 label would be part of a coordinated federal labeling scheme for gasoline-
ethanol blends. At the same time, the El5 label's "Attention" flag and damage and
prohibition statements set it apart from other labels and will help ensure that consumers
notice it and the information it provides to avoid misfueling.
We did not adopt the suggestion of green lettering and a blue "e" for the label in order to
maintain consistency with North Dakota's E10 label. Other commenters urged us to
adopt a yellow or orange background and black lettering, based on voluntary labeling
(ANSI) standards and/or industry expert advice. For our final label, we adopted the FTC
alternative label color scheme, which is a variation of yellow and black, to achieve
labeling consistency and effectiveness. Other commenters also urged us to establish a
nationally uniform label, including color scheme, so that consumers could more easily
Page 15 of 126
-------
recognize the label. We have adopted that approach. However, the rule does not prevent
the use or display of additional labels or signs that do not conflict with the required label.
In addition, the rule allows EPA to approve alternative labels that vary somewhat in size
and shape and other aspects as appropriate to address varying circumstances such as
pump design and non-English speaking customers.
EPA is not including an adhesive requirement as part of the rule's labeling provisions.
Under the rule and partial waivers, El5 pumps must bear the specified El5 label (unless
an alternative is approved). If the label peels away, the pump owner will be in violation
of rule and (if the pump owner is also a fuel manufacturer) waiver requirements. It is best
left to pump owners and label manufacturers to determine what adhesive should be used
to ensure that the El5 label remains on the pump.
1.1.7 Separate Labels for Different Levels of Ethanol
1.1.7.1 EO and E10
What Commenters Said:
Organizations: American Petroleum Institute (API); Renewable Fuels Association (RFA)
Document Numbers: EPA-HQ-OAR-2010-0448-0081, p. 7; EPA-HQ-OAR-2010-0448-0088,
p. 3
Comment: There is no need to label E10. There are a large variety of state-required labels for
E10 that would result in dual labels and further cluttering of dispensers. The focus should be on
labels for fuels containing more than 10 volume percent ethanol and the environmental impacts
of such fueling while leaving the actual ethanol content to consumer protection initiatives. EPA
should not go beyond its mandate to label El 5.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 4
Comment: Labels should be required only for those fuels that are not approved for use in all
vehicles and engines.
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7
Comment: If a label is required for El 5, it should be simple and based on existing label
regulations that have proven to be successful in preventing misfueling.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, pp. 3, 5
Comment: EPA should not require an E10 dispenser label for all dispensers that supply E10 or
in the alternative, only for those E10 dispensers at a location where E15 is also sold. The FTC
currently requires an E10 dispenser label pursuant to 16 CFR Part 306, Automotive Fuel Ratings
Certification and Posting. The FTC simply requires the E10 label to state the percentage of
ethanol contained in the gasoline-ethanol blend. Since EPA does not restrict the use of E10 with
respect to specific model year vehicles or engines, no additional legal approval component,
technical warning component or legal warning component is required for the E10 label. In other
words, the FTC label is sufficient to convey the informational component of the E10 blend.
Page 16 of 126
-------
Commenter adds that EPA should use the following informational label component for
dispensers supplying gasoline-ethanol blends greater than 10% but not more than 15%: "E-15
Gasoline (Contains 15% Ethanol Maximum)". This language is more clear and concise than the
proposed language in the NPRM and is more consistent with the layout of the EPA Ultra-low
Sulfur Diesel (ULSD) labels.
Organizations: Engine Manufacturers Association (EMA); Specialty Equipment Market
Association (SEMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0082, p. 7; EPA-HQ-OAR-2010-0448-0094,
p. 3
Comment: If a pump labeling approach is expected to effectively minimize misfueling, it is
essential that the consumer can easily determine which fuel is acceptable for any given product.
EPA should require that E10 and lower pumps bear labels containing information comparable to
the information found on El 1 and higher pumps.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 6-7
Comment: Commenter supports a standard informational label for E10 or less fuel, such as:
"This Fuel Contains Maximum 10% Ethanol. Approved for all Vehicles, Vessels, Engines, and
Equipment." Commenter adds that a label for E10 should be required in all cases (i.e., even when
El5 is not being sold at a particular location).
Organization: Petroleum Marketers and Convenience Stores of Iowa (PMC)
Document Number: EPA-HQ-OAR-2010-0448-0070, p. 2
Comment: Commenter notes that as they continue to explore the offering of higher blends of
ethanol at retail locations, they believe that it is important to protect retailers and consumers by
providing product transparency. Because of the introduction of El 5, the potential liability
associated with the offering, and the period of consumer confusion that is sure to follow, it is
necessary to further explore the potential for creating a uniform label for E10.
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 8
Comment: Commenters do not provide additional detailed discussion regarding the need for
separate labels for E10-E15 fuel versus fuel greater than El 5, but state generally that a warning
label should be required for all products for which the use is not approved in all engines (any
pumps dispensing fuel less than 10% ethanol should not be labeled). Because El 5 is only
suitable for use in certain vehicles, it is imperative that any pumps dispensing it contain a label
warning consumers of this fact and a similar rationale applies to pumps dispensing E85.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 11
Comment: Instead of using the phrase "This fuel contains 15% ethanol maximum," EPA should
include the lower limit and avoid overlap with E10. The statement should say: "This fuel
contains between 11% and 15% ethanol." This will help consumers distinguish E15 from E10.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 18
Page 17 of 126
-------
Comment: Current pump labeling for EO to E10 is inconsistent. Some labels are transparent, not
easy to read, located in various places on the pump, and vary from state to state. Clear and
consistent national labeling, including uniform placement of labels, would reduce confusion by
consumers. Commenter provides suggested labels for EO and E10 pumps (Exhibit D) and adds
that the EO label should clearly state "Contains no Ethanol," and the E10 label should clearly
state "Contains up to 10% Ethanol."
Response:
Preamble section III.B.2.g responds to comments on requiring different labels for EO and
E10. We also considered alternative language for describing E15 fuel, as suggested by
several commenters. The proposed label description, "[t]his fuel contains 15% ethanol
maximum," was intended to reflect that the partial waivers cover fuel with more than
10% ethanol and up to 15% ethanol and that the related misfueling mitigation measure
apply to the same range of gasoline-ethanol blends. Commenters noted that the proposed
description was longer than necessary and not grammatical. One commenter suggested
that the description indicate that the fuel could contain between 11% and 15% ethanol.
However, the waivers and mitigation measures apply to any fuel above 10% and up to
15% ethanol, not just fuel having 11% and up to 15% ethanol. We concluded that the
most accurate, easily understood and concise description for purposes of the El 5 label
was "up to 15% ethanol."
1.1.7.2 Blends Greater than E15
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 13
Comment: For a pump dispensing E30 only, the label should identify the fuel as E30 and not as
some blend between El 5 and E85. However, blender pumps may dispense several different
gasoline-ethanol blends, and requiring separate but duplicative labels for each blend would
unnecessarily clutter the face of the pump, as well as burden the retailer. In this case, a single
pump label should indicate the ethanol range and cautionary information as long as the specific
blend level is indicated on each individual hose holder, button, or hose activator. Essentially,
consumers should be able to identify the specific fuel they are buying in a consistent manner.
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071, pp. 2, 4
Comment: Retailers making only marginal profits on their gasoline/ethanol sales have an
incentive to vary the percent of ethanol blended with gasoline to maximize their profit margins.
E85's ethanol percentage can range from 70 to 85 percent ethanol, but the E85 label leads
consumers to believe that the blend contains 85 percent ethanol. Various engines, especially
older or small engines, can be severely damaged by higher gasoline-ethanol blends, and because
chemical properties can also vary extensively between different blends, a change from E70 to
E85 can lead to drastically different effects on tank corrosion and engine capabilities. Similarly,
studies have shown that differences between E10, E15, and E20 are significant, especially in
their effects on tank and pump corrosion and the probability of leakage. The E20 blend is the
least compatible of these three blends with current infrastructure. It is essential that EPA ensure
Page 18 of 126
-------
that actual blend percentage is very close to the labeled blend percentage to help mitigate
misfueling, consumer confusion, and other negative effects. In each case, the label should read
"contains between XX% and XX% Ethanol and XX% to XX% regular gasoline." Based on this
wording, commenter provides specific suggested text for EO, E10, and E85 fuel. The label should
read "contains between XX% and XX% Ethanol and XX% to XX% regular gasoline." As such,
the E15 label should include the following text: "E15. Contains between 12.5% and 17.5%
ethanol and between 82.5% and 87.5% regular gasoline. WARNING: ONLY to be used in 2007
and newer gasoline cars, light-duty trucks, medium-duty passenger vehicles, and flex-fuel
vehicles. Federal law prohibits use in all other vehicles and engines."
Organization: Petroleum Marketers and Convenience Stores of Iowa (PMC)
Document Number: EPA-HQ-OAR-2010-0448-0070, p. 2
Comment: As it stands today these fuels are reserved for use in flex-fuel vehicles only. Iowa has
implemented the labeling requirements proposed by the FTC for mid-level gasoline-ethanol
blends (including E85) and would encourage the Agency to give deference to the proposal put
forward by the FTC. Once again, requiring an additional label for these fuels would likely be
counter-productive to the period of consumer education that has already started to take place in
states where mid-level gasoline-ethanol blends and E85 are already widely available.
Additionally, any expense added through a new label in the form of material cost or labor would
come with little benefit to either consumer or retail facility owner.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 17
Comment: The E85 pump warning language should be consistent with the language used on
E15 pump labels and should rely more on generic symbols consistent with the ANSI Z535
format. Commenter provides an illustration of their recommended label for E85 (Exhibit E). In
addition, commenter notes that the E85 label should say "Contains 70% to 85% Ethanol"
because according to the ASTM D5798 standard, E85 must contain at least 70% ethanol so it is
not accurate to say "Contains up to 85% ethanol."
Organization: Boat Owners Association of the U.S.
Document Number: EPA-HQ-OAR-2010-0448-0078, p. 3
Comment: For the proposed flex-fuel label, the word "only" should be added to the third line so
that it reads "for use in flex-fuel vehicles only."
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 8
Comment: Commenter notes that they currently do not endorse the use of blending dispensers
for mid-level gasoline-ethanol blends because there is currently no ASTM specification for the
potential blended fuels. They also do not endorse the storage and handling of E98 as a base fuel
for blender dispensers due to safety concerns. Commenter observes, however, that there may be
legacy blending dispensers currently in use under state and local agency workarounds and that
there are currently a limited number of newer blending dispenser models that have been listed for
higher gasoline-ethanol blends. Blender dispensers offering mid-level gasoline-ethanol blends
should have labels alerting consumers that the fuels are only allowed in flex-fuel vehicles, and
the label should be consistent with the label for E85 dispensers. Commenter provides an
illustration of their recommended label for E85 that could also be used for blender dispensers in
the event that the issues they raise regarding the use of these dispensers have been addressed.
Page 19 of 126
-------
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 18
Comment: Blender pumps and pumps dispensing intermediate gasoline-ethanol blends need to
have the same clear warnings and limitations as the labels for EO, E10, E15, and E85 fuels. Each
intermediate blend offered for sale must also have a separate label on or next to each selection
button for each blend offered. For example, an E30 label should clearly state "Contains % to
30% Ethanol" or whatever the standard tolerance range is defined as. Commenter provides a
recommended label for blender pumps (Exhibit E). Commenter also notes that no standard
currently exists to indicate what the allowable range of ethanol is in intermediate blends, and the
Agency should consider requiring a standard to be developed to define allowable blend ratios for
intermediate blends.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 6
Comment: EPA should ensure consistent, robust labeling for all blender pumps. Commenter
suggests labels with similar text and standard symbols that they have recommended for the El 5
label advising consumers that a 10% maximum is allowable for marine applications. Commenter
adds that blender pumps are inherently confusing and that EPA should contemplate limiting
blender pumps to existing and future flex-fuel only, separate, segregated fuel pump islands.
Blender pumps should not be mingled with pumps that dispense regular fuel, as this will
substantially contribute to consumer confusion as well as widespread inadvertent misfueling.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 6
Comment: The current legal warning label component under Option 1 is too narrow. It limits
blender pumps to flex-fuel vehicles only. However, under the partial waiver, El 5 is approved for
2007 and newer model year vehicles and potentially for 2001 and newer vehicles. If EPA
approves the label in Option 1, these vehicles would not be allowed to fuel with E15 at blender
pumps. Petroleum marketers who plan to supply El5 at retail sites will largely do so through the
use of existing blender pumps since they are designed to dispense midgrade gasoline-ethanol
blends. As such, retailers will feel more comfortable using blender pumps to dispense El5
blends. There are legal reasons for using blender pumps over traditional dispensers as well. It is
still largely unknown whether El 5 will be allowed for use in dispensers with a UL certification
limited to an E10 maximum. To avoid violation of state and local fire laws, retailers are likely to
favor blender pumps to dispense El5 product. Commenter further notes that although Option 2 is
preferred, they would consider supporting the implementation of Option 1 if the following
revisions to the informational and legal approval components to the label are made: "E-15 - E-85
(Contains between 15% and 85% ethanol); For use in flex-fuel vehicles only." and "E-15
(Contains 15% ethanol MAXIMUM); For use in model year 2007 and newer cars and light duty
trucks and flex fuel vehicles." Another option would be to place the E15 label adjacent to the
El5 selector on the blend pump and allow the El5 to E85 label to cover the remaining higher
blend selectors. Commenter adds that they could also support adoption of both Options 1 and 2
which would allow retailers to decide which label would be appropriate based on current
consumer demand at a given location.
Organization: North Dakota Ethanol Council
Document Number: EPA-HQ-OAR-2010-0448-0089, p. 2
Page 20 of 126
-------
Comment: As blender pumps become more prevalent nationwide, a national labeling standard
should be developed so the public is exposed to the same label, thus decreasing consumer
confusion.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 7-8
Comment: Commenter provides an illustration of their recommended label of E85 fuel that
could be used as an alternative to the EPA-proposed E85 label. The recommended label contains
the same type of information as EPA's proposed label but adds a contrasting colored banner
across the top. Commenter adds that the FTC has also proposed an E85 label. The EPA should
work with the FTC to prevent conflicting or duplicative labeling requirements.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 4
Comment: Commenter supports the use of labels for gasoline-ethanol blends that contain more
than 10% ethanol such that labels would be required for only those fuels that are not approved
for use in all vehicles and engines. Commenter provides an illustration of their suggested label
for E30 and E85 fuels, which is generally consistent with their proposed label for E15.
Commenter asserts that consistent labeling of fuels available at retail gas stations will best
provide consumers with information necessary to make the appropriate decision and supports
EPA's efforts to work with the FTC to ensure consistency between all labeling requirements.
Organizations: Alliance of Automobile Manufacturers (Alliance); Association of International
Automobile Manufacturers (AIAM); Outdoor Power Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 12; EPA-HQ-OAR-2010-0448-0079,
p. 8; EPA-HQ-OAR-2010-0448-0053, pp. 15-16
Comment: EPA is correct in stating that "imposing separate labeling requirements may confuse
consumers and would ultimately limit the effectiveness of labeling to mitigate misfueling."
Consumers will be more likely to avoid misfueling if there is a uniform ethanol warning label
with a standard color code. All pumps should be required to have consistent and coordinated
federal labels, regardless of what blends may or may not be offered at each station.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 3
Comment: For E85 and blender pumps, EPA should use much clearer and stronger language
(either "WARNING" or "STOP" in at least 24-point font). EPA should use the depiction of the
"stop sign" as well with the word "STOP." These signs should include the specific vehicles (i.e.
Flex-Fueled Vehicles) for which the fuel is approved. The signs should also clearly state which
vehicles and engines for which the fuel is unsuited, including graphic images and icons
consistent with the graphic images or icons proposed for El5; for example, the sign should
include images of the type of vehicle or engine with a slash or X across it.
Organization: Boat Owners Association of the U.S.
Document Number: EPA-HQ-OAR-2010-0448-0078, p. 3
Comment: All gasoline fuel pumps should be clearly labeled identifying the product coming out
of the pump. If EPA only requires fuel labeling for El 5 pumps, boaters may be led to believe
that the absence of a label means that the fuel is fine to use for their boat, when it may be that the
Page 21 of 126
-------
label has not yet been applied. It would be easier to promote active consumers (i.e., to educate all
users of gasoline that they should start reading pump labels for all uses).
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, p. Al
Comment: EPA should implement requirements for a family of labels for gasoline, El 5 and
other mid-level gasoline-ethanol blends, and E85. These labels should employ language
appropriate for each fuel that meets/exceeds the FTC requirements proposed in March 2010 (75
FR 12470). This family of labels should also follow the color conventions of the FTC program:
yellow for gasoline and orange for mid-level gasoline-ethanol blends (including E15) and E85.
Response:
Preamble section III.B.2.g addresses comments on labels for blends greater than E15. As
discussed there, the FTC has proposed labels for higher gasoline-ethanol blends, and we
designed the final El5 label to coordinate with FTC's current alternative fuel labels and
proposed gasoline-ethanol blend labels. Since EPA and FTC have different statutory
authorities enacted to serve different, although often complementary, purposes, it is
appropriate for each agency to implement its own authority in consultation with the other
agency so that the two agencies' labels can work together effectively. EPA and FTC have
taken this approach to gasoline-ethanol blend labeling.
With respect to blender pumps, to the extent these pumps are used to dispense El 5, they
are required to bear the El5 label in a place that will allow the consumer to associate the
label with the specific mechanism dispensing El5. For example, in the case of a blender
pump with a button for each of several gasoline-ethanol blends, the El 5 label should be
near to or on the button for dispensing El5 so that it is clear to the consumer which
button dispenses El5. In line with current industry practice, we would expect the buttons
for the higher blends to have a label associated with them that makes clear that the higher
blends are for flex-fuel vehicles only. EPA has previously advised that retail stations
selling mid- and high-level blends may reduce the risk of a violation by clearly marking
the pumps dispensing those blends as for FFVs only.
1.1.8 Coordination with Federal Trade Commission (FTC)
What Commenters Said:
Organizations: Outdoor Power Equipment Institute (OPEI); IL Corn Growers Association
(ICGA); National Automobile Dealers Association (NADA); Renewable Fuels
Association (RFA)
Document Numbers: EPA-HQ-OAR-2010-0448-0053, p. 15; EPA-HQ-OAR-2010-0448-0092,
p. 2; EPA-HQ-OAR-2010-0448-0085, p. 2; EPA-HQ-OAR-2010-0448-0088, p. 3
Comment: Since the prior FTC label is no longer subject to notice and comment, EPA should
ask the FTC to re-notice a revised proposed FTC label that is based on the final EPA label.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, pp. 5-6
Page 22 of 126
-------
Comment: EPA should not require any midlevel ethanol dispenser label (including labels for
El 5, E85 and labels for blender pumps) without full integration with both current and proposed
FTC ethanol label requirements. A single compliant label for each blend level is essential for the
success of the proposed misfueling mitigation program. Gasoline dispenser housings are already
crowded with an array of labels required by federal, state, and local regulatory authorities and
there is little room left on gasoline dispenser housings for duplicative product labels. Commenter
provides additional discussion, noting that the informational component for ethanol content
required under 16 CFR Part 306 should be integrated into each EPA dispenser label and that
EPA should enter into an Memorandum of Understanding with the FTC that establishes a single
label and a reciprocal compliance agreement.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 9
Comment: EPA must resolve jurisdiction and content control on a federal level with the FTC.
EPA's interest in preventing misfueling transcends FTC (or state) interests with respect to
creating a consistent, understandable and clear labeling program. If the FTC is in the strongest
position to assert federal control of pump labeling, EPA should work with the FTC to ensure that
the final fuel labeling program effectively conveys EPA's misfueling control information.
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, pp. A1-A2
Comment: EPA should continue to coordinate with the FTC on labeling requirements. The one
aspect of the FTC's requirements that is not provided for on EPA's proposed E15 label is the
fuel's octane rating. The greatest risk of unintentional misfueling of gasoline vehicles and
engines comes from blender pumps. These pumps dispense gasoline, a variety of mid-level
ethanol blends, and possibly E85. If two separate sets of labels are used (one for ethanol content,
another for octane), cases where a customer prefers premium octane gasoline may result in a
purchase of a mid-level blend not suitable or legal for their vehicle, simply because it had the
octane sticker they were seeking. EPA should provide a consistent location on its labels for the
FTC's octane rating. Ultimately, there must be one comprehensive label providing consumers
with all of the information required by both the EPA and the FTC.
Organization: Iowa Renewable Fuels Association (IRFA)
Document Number: EPA-HQ-OAR-2010-0448-0059, p. 2
Comment: Fuel pump labeling has not been within the scope of EPA activities. The FTC has
designed informative pump labels so motorists can choose the fuel that best fits their needs.
Consistency is also a factor in how the FTC determines label design. The case in point is the set
of labels created for blender pumps and E85 dispensers, which simply identify the ethanol blend
level and a statement of explanation. Each label is the same color and same design.
Organizations: Alliance of Automobile Manufacturers (Alliance); American Petroleum Institute
(API); Association of International Automobile Manufacturers (AIAM); National
Petrochemical and Refiners Association (NPRA); Specialty Equipment Market
Association (SEMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, pp. 5-6; EPA-HQ-OAR-2010-0448-
0081, pp. 3-4, 7-8, 10; EPA-HQ-OAR-2010-0448-0079, p. 8; EPA-HQ-OAR-2010-0448-
0067, p. 5; EPA-HQ-OAR-2010-0448-0094, p. 3
Page 23 of 126
-------
Comment: The EPA labeling format and methodology should be consistent with the final FTC
label to prevent customer confusion. There is great potential for conflicting EPA and FTC
labeling requirements, particularly on blends between 10 and 15 vol% given that EPA granted a
partial waiver. EPA, FTC, and other relevant Agencies must collaborate in producing a unified
design scheme for use in all gasoline-ethanol blend pumps. Allowing multiple labels conveying
similar information will only overwhelm and confuse consumers, many of whom will likely
disregard all the labels as a result. The best outcome would be a single EPA-FTC label since
even a single additional label on the front of dispensers will be difficult to place. This issue
should be resolved prior to a final rulemaking from either agency.
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 9-10
Comment: The requirements for gasoline-ethanol blends containing between 10 and 70 vol%
ethanol that were proposed by the FTC (75 FR 12470) should be withdrawn since it did not
contemplate EPA's partial waiver for restricted use of El 5 or the proposed rule. Multiple labeling
regimes will confuse retailers and consumers, thereby frustrating Congressional and Agency
objectives. Since the prohibition on use of certain gasoline-ethanol blends is inherently an
environmental issue, it fits squarely within EPA's jurisdiction and expertise. As such, EPA
should have sole jurisdiction over any labeling regime based on its own final rule.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 7
Comment: EPA has primacy of authority of this issue under the CAA. Commenter notes that
they are willing to support EPA in ensuring cooperation from FTC to facilitate coordination on
any new ethanol fuel pump labels. EPA should utilize industry support if necessary to ensure that
FTC yields and coordinates with EPA.
Organizations: IL Corn Growers Association (ICGA); National Automobile Dealers
Association (NADA); Renewable Fuels Association (RFA)
Document Numbers: EPA-HQ-OAR-2010-0448-0092, p. 2; EPA-HQ-OAR-2010-0448-0085,
p. 2; EPA-HQ-OAR-2010-0448-0088, p. 3
Comment: The FTC should not require an additional label for El5 since it would be duplicative
and unnecessary. EPA should coordinate its El5 fuel labeling effort with the FTC to assure that
only one label is required. Dueling El5 labels will only add more confusion for consumers and
further undermine the federal government's objective of promoting renewable fuel consumption.
RFA adds that the proposed FTC label is highly inflammatory and is based on absolutely no data
relating to emissions, fuel system compatibility, or performance.
Response:
As indicated in other responses to comments and in Preamble section III.B.2, we
consulted with FTC's staff experts to develop an effective El5 label that coordinates with
FTC's existing alternative fuel labels and proposed gasoline-ethanol blend labels. We
will continue to consult with FTC as they consider action on their proposed gasoline-
ethanol blend labels.
Page 24 of 126
-------
1.1.9 E10 Labeled as E15
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 9
Comment: To facilitate the introduction of El 5, EPA should ensure that equipment labeled as
containing ethanol blends greater than E10 be permitted to dispense lower ethanol blends
without violating the final rule. This would assure retailers that in the event of ethanol supply
disruptions, they would not need to discontinue using (or remove the labels from) certain
equipment designed to dispense or store higher ethanol fuels. This policy would make retailers
more willing to begin storing and selling El5.
Response:
Fuel dispensers that are labeled as dispensing El5 but dispense a gasoline-ethanol blend
that contains 10 vol% or less ethanol content will not be in violation of the regulations
being promulgated by today's final rule.
1.2 Product Transfer Document (PTD) Requirements
1.2.1 General Support for Proposed PTD Requirements
What Commenters Said:
Organizations: Outdoor Power Equipment Institute (OPEI); Petroleum Marketers and
Convenience Stores of Iowa (PMCI)
Document Numbers: EPA-HQ-OAR-2010-0448-0053, p. 21; EPA-HQ-OAR-2010-0448-0070,
p. 2
Comment: Commenters generally support EPA's proposed standardized PTDs downstream from
the point of blending and/or up to and including the point of blending. The use of PTDs and the
proposed language will help reduce the rate of misfueling and will help make retailers aware of
any violations that result through the inappropriate comingling of blendstocks. PMCI notes that a
failure to indicate the type of product being transferred and its suitability for blending at this
point in the fuel distribution chain increases the likelihood of a misblending error as the product
moves down the chain of sale.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 8
Comment: EMA strongly supports the NPRM's proposed PTD requirements. The use of an
enhanced document system rather than an onerous additional product documentation system
strikes the appropriate balance between accurate information and acceptable cost.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080.1, pp. 6-7
Page 25 of 126
-------
Comment: Commenter has no objection to the proposed general PTD requirements in the
NPRM since the proposed requirements (with the exception of the additional PTD language) are
already followed by downstream petroleum marketers.
Response:
EPA acknowledges these commenters' support for the proposed PTD requirements, and
today's PTD requirements are discussed in Preamble section III.C.
1.2.2 PTD Requirements Downstream of the Point of Ethanol Addition
1.2.2.1 Standardization of PTD Language
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 5
Comment: EPA's proposed PTD language regarding both the ethanol content and RVP for all
gasoline/ethanol blends should be simplified and standardized. The PTD language should read as
follows: "Contains at least ## volume percent ethanol and up to ## volume percent ethanol. RVP
does not exceed ## psi." This proposed language provides all parties in the fuel supply chain
with necessary information regarding both ethanol content and RVP of the proposed fuel.
Commenter asserts that their proposed language is the only modification to PTDs necessary to
ensure proper use of E15 and other approved fuels.
Response:
EPA agrees that standardizing the language for gasoline-ethanol blends will make it
simpler and easier to understand, and is finalizing changes to the required PTD language
for gasoline-ethanol blends to reflect this. However, we are finalizing the language for EO
to read as proposed, "EO: Contains no ethanol," since the standardized language
suggested by commenters contains more information than necessary for gasoline
containing no ethanol. At the same time, EPA does not believe that this standardized
language is sufficient in and of itself to ensure proper use of E15 or other approved fuels
as the commenter suggests. EPA believes that additional language is necessary to provide
clarity concerning gasoline-ethanol blends designed to take advantage of the 1 psi RVP
waiver. The language for this purpose is further discussed in Preamble section III.C. 1.
1.2.2.2 RVP
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 10
Comment: The requirement to include the RVP of a blendstock for oxygenate blending (BOB)
on the PTD is not useful and may be misleading. This requirement was not included in the RFG
regulations and there has been no need for it. The magnitude of the RVP "bump" for a given
ethanol concentration varies among BOBs and producers adjust the RVP of their BOB such that
Page 26 of 126
-------
the RVP of the blend will comply with RVP/VOC regulations when blended with the specified
level of ethanol. Such an approach has worked for almost 25 years, and there is no reason to
complicate this approach. PTD requirements for BOBs should not be required to contain
anything more than the type and level of oxygenate with which they should be blended.
Requirements should be flexible (e.g., some may choose to include a statement on PTDs while
others may choose to include the information in product descriptions). Regulated parties are
already prohibited from releasing a finished E10 (or E15) product into the marketplace that
exceeds the regional and/or seasonal RVP requirements in place. If a regulated party indicates on
a PTD that a BOB is suitable for blending with E10, it means it will meet all the finished product
requirements including RVP. Additional language placed on PTDs should be optional at the
discretion of the regulated party.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 13
Comment: EPA proposes that "the RVP does not exceed [fill in the appropriate value]" must be
included on PTDs downstream of the point of ethanol addition (75 FR 68053). EPA should not
implement this proposed requirement, which is unnecessary. The petroleum industry has a long
record of distributing summer gasoline (and will be able to continue distributing summer EO,
E10 and E15) with the correct RVP to an area without this regulation and E15 does not
materially change this situation.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 7
Comment: Regarding PTD requirements downstream of the point of ethanol addition, the
reported RVP for E10 and El 5 should 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.
RVP testing after the point of blending would not be required in order to provide accurate RVP
information on the PTD headed downstream. Commenter supports EPA's proposed notification
for ethanol content and maximum RVP for PTDs below the point of blending and believes that
the proposed PTD requirements will eliminate the need for additional fuel testing for
downstream petroleum marketers. EPA should incorporate additional language on the El0 PTDs
to help avoid inadvertent comingling with E15. There is a possibility that E10 product which
benefits from the 1 psi RVP waiver may become commingled inadvertently downstream with
straight gasoline or El 5 blends and thus become non-compliant. To help avoid this, it would be
helpful to downstream parties as well as to drivers delivering fuel if EPA required the following
language on E10 PTDs: "This blend subject to Ipsi RVP waiver. Do not Blend with gasoline
containing less than 9% vol ethanol or E-15."
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 12-13
Comment: To prevent downstream violations of the RVP standards, the following language in
bold font should be added to the PTD for a blendstock or base gasoline (BOB) designated to take
advantage of the Ipsi allowance for E10: "The use of this gasoline to manufacture a gasoline-
ethanol blend with less than 9 vol% ethanol or El5 may cause an RVP violation." El5 is likely
to have a Reid Vapor Pressure (RVP) of greater than 9.0 pounds per square inch (psi) during
non-summer months, resulting in an increase in evaporative emissions beyond what auto
manufacturers have been required to control. Further complicating matters is the fact that CAA
Page 27 of 126
-------
Section 21 l(h)(4) limits the 1.0 psi waiver to gasoline-ethanol blends that contain E10. The
regulation implementing that provision, 40 CFR 80.27(d), plainly states that the only ethanol
blends qualifying for the waiver are those between E9 and E10 (inclusive). Accordingly, it is
difficult to conceive of an interpretation of Section 21 l(h) that deems any gasoline blend above
E10 eligible for the RVP waiver in section 21 l(h)(4). Consequently, the final rule must ensure
that PTDs make it clear that anything above E10 does not receive the 1 pound psi waiver (which
is not currently the case in the rule as proposed). Commenters request that the PTDs contain the
following language in bold font on all fuel where the waiver would not apply: "Adding ethanol
to this product will result in a blend higher than E10 and not qualify for the one pound waiver."
Response:
Preamble section HI.C.I addresses these comments. As discussed there, EPA agrees that
adding to PTDs language concerning gasoline-ethanol blends designed to take advantage
of the 1 psi RVP waiver would be useful and appropriate, because it would help prevent
inadvertent downstream RVP standard violations that might otherwise become more
likely with the entry of E15 into the market. We are therefore adding a provision for that
language in the final rule.
1.2.3 PTD Requirements Up To and Including the Point of Ethanol Addition
1.2.3.1 General
What Commenters Said:
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 7
Comment: PMAA has no objections to the requirements for PTDs generated up to and including
the point of blending as proposed and believes that it is important to ethanol blenders. PMAA
supports the EPA proposal in the NPRM to require upstream PTDs to include the maximum
potential RVP for gasoline blendstock used for oxygenate blending (BOB) along with the
maximum ethanol content that may be added to the BOB.
Response:
EPA agrees that the maximum potential RVP and suitable ethanol content should be
included on the PTD for BOBs to facilitate ethanol blender compliance with the
applicable EPA summertime RVP requirements in light of the increasing complexity that
will come with the introduction of El 5 into the market.
1.2.3.2 Applicability of PTD Requirements to Ethanol Producers
What Commenters Said:
Organization: Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0088, pp. 3-4
Page 28 of 126
-------
Comment: With respect to PTD requirements, EPA identifies upstream parties as ethanol
blenders, fuel manufacturers, and fuel additive manufacturers (ethanol producers). But ethanol
producers will not produce the El5 blends, only supply the denatured fuel grade ethanol
blending component. The bulk sale of fuel grade ethanol by ethanol producers could be used in
blends of 5%, 10%, or 85% ethanol with gasoline; the ultimate use of ethanol is unknown at the
time of sale from the ethanol producer. Commercial transactions of ethanol producers are at a
minimum one transaction once removed from retail fuel transactions and as such, it is unclear
how ethanol producers would require information on a PTD.
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7
Comment: Commenter supports the PTD requirements as they apply to the actual blender of
fuels. Ethanol plants create one form of ethanol, and cannot predict what blend their fuel will be
used to create, yet refiners are likely to use different base fuels that will only be suitable for
blending at certain levels.
Response:
In the proposed and final regulations in 40 CFR 80.1503, PTDs are required for transfers
of blendstocks for oxygenate blending (BOBs) and base gasoline upstream of an ethanol
blending facility. If an ethanol producer is not transferring custody or title to any of the
products listed in the previous sentence, then the ethanol producer would not be subject
to the requirements in §80.1503(a). EPA did not intend to imply that the requirements in
§80.1503(a) would extend to any parties other than those transferring custody of
conventional blendstock for oxygenate blending or base gasoline.
1.2.3.3 PTD Language
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 14
Comment: EPA should modify the wording on the PTDs to ensure that the blendstock for
oxygenate blending (BOB) is not improperly used for El 1-E14 blends. Commenter generally
supports EPA's proposals for upstream and downstream PTDs and agrees with the need to keep
separate documents for fuels subject to the 1.0 psi RVP waiver. However, the PTD should refer
to E9 or E10 rather than the generic term "ethanol blends." For E15, the PTD should refer to the
finished blend quality and the law (e.g., "Designed for the special RVP allowance for E10 only.
Federal law prohibits use in making finished gasoline blends containing less than 9 vol% ethanol
or more than 10 vol% ethanol.").
Response:
EPA agrees that additional language on PTDs upstream of the point of ethanol blending
is necessary to ensure that BOBs designed to take advantage of the 1 psi RVP waiver are
not blended with ethanol to the El 1-E15 level. However, EPA believes that the term
"ethanol blends" is well understood by all parties in industry. Therefore, EPA is not
making the commenter's suggested changes to the language on the upstream PTDs.
Page 29 of 126
-------
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 10-11
Comment: Given the sufficiency of the information in proposed §80.1503(a)(l)(vi)(A) and the
unnecessary restrictions the additional proposed language of this requirement would impose on
the fuel distribution system (i.e., §80.1503(a)(l)(vi)(B) and (C)), the additional proposed
language should be removed from the final rule.
Response:
Preamble section III.C.2 addresses this comments.
1.2.3.4 Octane
What Commenters Said:
Organization: Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0088, p. 4
Comments: None of the proposed PTD wording addresses octane specifically. Commenter
requests further information on the intention to identify blendstocks suitable for blending with
ethanol up to 15 vol% ethanol with wording on PTDs. They presume the wording "suitable for
blending with ethanol at a concentration up to 15% ethanol" is meant to cover "any ethanol"
blendstock for oxygenated blending (BOB), indicating the vapor pressure is low enough to
accommodate 15% ethanol and is independent of any octane statements.
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7
Comments: Information on the octane rating of the blendstock should be included on the PTD
since it is critical to proper blending at terminals.
Our response:
EPA does not regulate octane in fuels, and thus does not believe that it would be
appropriate for the Agency to require, as the commenters suggest, the inclusion of the
octane rating of the blendstock the PTD. Parties in the distribution chain are free to add
information to PTDs as they deem useful and appropriate.
1.2.4 General PTD Requirements
1.2.4.1 General
What Commenters Said:
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7
Page 30 of 126
-------
Comment: Commenter states that in order to assure the retailer that it is receiving the fuel that
the station advertises for sale (and to allow quick responses to inquiries by customers or
regulators), a copy of the PTD should also be provided at the station level to document the actual
fuel being sold.
Response:
EPA is finalizing the proposed general PTD requirements, including the requirement that
the PTD be used by (and provided to) all parties in the distribution chain, down to where
the actual fuel is being sold, dispensed or otherwise made available to the consumer. This
is discussed in Preamble section III.C.3.
1.2.4.2 Abbreviations
What Commenters Said:
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 7
Comment: EPA should allow for the use of abbreviations since available space for additional
information on these documents is extremely limited. Abbreviations should be used wherever
possible, for example "%" in place of "percent" and "vol" in place of volume, provided that such
abbreviations would not sacrifice clarity of the notification. This would allow more space for the
required wording without reducing appropriate notification to the reader.
Response:
EPA generally agrees that abbreviations can appropriately be used and has largely
adopted this suggestion, as discussed in Preamble section III.C.3.
1.2.4.3 Placement of Required Language
What Commenters Said:
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 7
Comment: EPA should allow for the placement of text on the back of PTDs since available
space for additional information on these documents is extremely limited. EPA should also allow
the PTD information to be printed on the back of the document so long as reference is made on
the front directing the reader to pertinent information on the back. This would allow more space
for the required wording without reducing appropriate notification to the reader.
Response:
EPA generally agrees that the back of PTDs can be used and has largely adopted this
suggestion, as discussed in Preamble section III.C.3.
1.2.4.4 Product Codes
Page 31 of 126
-------
What Commenters Said:
Organization: Petroleum Marketers and Convenience Stores of Iowa (PMCI)
Document Number: EPA-HQ-OAR-2010-0448-0070, p. 2
Comment: If product codes are allowed to be used on PTDs in place of the language required in
its proposal, EPA should require that a key for the product codes be included on the PTD which
clearly indicates the suitability of the fuel subject to the transfer for blending with ethanol.
Commenter recognizes that certain parties may view the additional product transfer document
language required under this proposal as a burden, which may encourage many regulated parties
to use product codes on their PTDs. The proposed rule states that product codes could be used to
convey the required information so long as the codes are clearly understood by each transferee.
Product codes are often used in the current fuel distribution chain and in certain instances have
created confusion among transferee's of fuel.
Response:
EPA understands the importance of PTDs conveying information in a manner that will be
understood by each transferee, and the final rule generally requires that product code keys
be included on downstream PTDs. Preamble section III.C.3 further addresses this
comment.
1.3 Ongoing Implementation Survey
1.3.1 Nationwide Survey Program Requirement
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 13-14
Comment: The individual survey option EPA proposes will not be able to provide the Agency
with accurate information to the degree that a nationwide survey would. Even though EPA
would prefer to limit surveys to only those areas that have El5 being introduced into commerce,
entities will not know where El 5 is being introduced. EPA would need to coordinate with state
weights and measures offices to determine how those entities might assist the Agency in
conducting the survey. The survey cannot be geographically limited because the outlets that will
be using El5 are currently unknown. As such, EPA should eliminate Survey Option 1 and only
permit Survey Option 2 when it promulgates a final rule. A method similar to the proposed
nationwide program has worked well in the ULSD and RFG programs, and there is no reason to
deviate from that for the El 5 program.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 8
Comment: Commenter generally supports the proposed ethanol content survey that would test
retail fuel samples for compliance with maximum ethanol content of gasoline blends. The
ethanol survey is based on the RFG and ULSD sampling and testing survey with which retailers
are already familiar. EPA should implement Option 2 which establishes a national survey based
Page 32 of 126
-------
on the current RFG and ULSD models, since this is the most efficient and cost effective way to
manage the thousands of sites that the survey sample requires in any given year.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 4
Comment: Commenter supports EPA's proposed Option 2 and encourages EPA to maximize the
number of samples obtained and expedite the analysis of those samples.
Response:
Preamble section III.D.l.b addresses these comments.
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 8
Comment: EPA should implement a robust fuel ethanol content survey and violation reporting
process. The ULSD survey provided valuable insight into both the pump label and fuel
composition aspects of the transition from low-sulfur to ultra-low sulfur diesel. However, the
ULSD survey program lacked an obvious enforcement element. The El5 survey must be
accompanied by an enforcement component in order to ensure that the consequences for
violating the misfueling regulation are communicated to all involved parties.
Response:
The comment is not clear on how the ULSD survey requirement lacked an obvious
enforcement element, nor is it clear about what such a requirement should be. EPA agrees
that the survey should have an enforcement component, and today's action requires a
time-tested, rigorous survey program as part of a regulatory structure that allows EPA to
both identify and enforce violations. In the rule, EPA outlines a comprehensive list of
prohibited acts (see §80.1504) and the corresponding list of penalties for violating
today's regulations (see §80.1506). Similar to other fuels programs, EPA will closely
monitor survey results and take appropriate enforcement action when violations are
identified.
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 5
Comment: EPA should retain both survey options and to the extent that a national survey
program is established, EPA should include a provision that obligated parties that elect not to
share in the costs of the national survey shall not be entitled to use of that data and must conduct
individual surveys under Option 1. Commenter generally supports the survey components and
structure as proposed by EPA, but asserts that the survey should not include any requirements
regarding fuel RVP.
Response:
Page 33 of 126
-------
The final rule maintains both survey options. Preamble section HID addresses comments
about providing two survey options and provides more information. Regarding the RVP
survey comment, please see below.
1.3.2 RVP Survey
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 17
Comment: A national RVP survey to ensure summer RVP standards are met is unnecessary.
Companies should be able to rely on PTD requirements and recordkeeping requirements to show
they transferred a compliant fuel. There would be no benefit from such a program. Enforcement-
by-survey should be a voluntary election by regulated parties in exchange for enforcement
flexibility. No such flexibility has been proposed by EPA in this NPRM.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 8
Comment: Commenter opposes the inclusion of a national RVP survey because industry would
be forced to inappropriately fund enforcement.
Organizations: Alliance of Automobile Manufacturers (Alliance); Outdoor Power Equipment
Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 16; EPA-HQ-OAR-2010-0448-0053,
p. 21
Comment: Requiring RVP testing (including for E10) as part of the national surveys will
provide an additional quality and compliance check on the sampled blends. Testing RVP as part
of the survey program would be a low-cost approach to best ensure downstream RVP
compliance and mitigate the increased emissions and damages to engines from higher RVP fuels.
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 14
Comment: The proposal notes that "adding testing for RVP to [the national] survey would be a
low-cost approach to enforcing downstream RVP standards and help provide an affirmative
defense for upstream parties in the event of a violation downstream." RVP requirements are
currently enforced at the state level and it is not an area EPA should involve itself in policing, as
dual regulatory programs would only serve to complicate retailers' compliance efforts and
discourage the widespread introduction of E15.
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, pp. A2-A3
Comment: All samples should be analyzed for RVP. The added expense to measure RVP, and
thus monitor another potential source of El 5 excess emissions, is modest.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 12
Page 34 of 126
-------
Comment: To the extent that RVP is tested as part of the survey, this should be limited to E15,
which is the focus of the entire proposal. It is inappropriate for EPA to expand this to require
RVP testing of E10 or EO.
Response:
Preamble section III.D.l addresses comments concerning, and provides more information
about testing fuel samples for RVP as part of the ongoing implementation survey
program. In the final rule, EPA is requiring RVP testing of E15 since the E15 partial
waivers require that El5 fuel not exceed 9 psi RVP in the summertime in order to avoid
emission increases that might otherwise result. EPA is not requiring RVP testing of EO
and El0.
1.3.3 Independent Survey Associations
What Commenters Said:
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071.1, p. 5
Comment: Allowing regulated parties to form their own consortium and hire their own
independent survey association could undermine the independent nature of the survey. Given the
potential financial and human costs of consistent mislabeling, direct testing should be completed
on-site by EPA or state government regulators. If a regulated party is found to be out of
compliance, the entity should be fined accordingly.
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7
Comment: Including the survey as part of the annual (or more frequent) inspections performed
by State Weights and Measures officials would be a more proper and impartial approach.
Commenter adds that if a special survey is required, it should be completed by the actual
physical supplier of product to the location, as others in the supply chain have no knowledge of
what fuels were used until the supplier loads them for delivery to the location.
Response:
Requiring implementation surveys conducted by independent survey associations has a
proven track-record of success for over 15 years in the RFG and ULSD programs. The
surveys conducted for the RFG and ULSD programs have increased incentives for and
helped responsible parties demonstrate compliance with program requirements, and few
if any questions have been raised about the reliability of the information obtained. To
help ensure survey integrity, EPA proposed and is finalizing provisions that allow EPA to
monitor sampling and testing of fuel samples to determine whether survey program
requirements are being met and that surveyors remain independent (see §
80.1502(b)(3)(ix)). Additionally, EPA will ensure that surveyors and laboratories used to
conduct the testing of fuel samples are independent through the survey plan approval
process. EPA is also finalizing provisions that would allow EPA to revoke approved
survey plans if appropriate in light of implementation problems (see § 80.1502(e)(2) and
Preamble section III.D.l for more discussion). EPA will fine a regulated party found to
Page 35 of 126
-------
be out of compliance with § 80.1506 according to the nature of the violation.
Commenters provided no evidence that current independent survey requirements have
proven inadequate. Therefore, based on our successful implementation of similar survey
programs over the past 15 years, we are requiring that independent surveyors conduct
surveys as proposed.
1.3.4 Responsible Parties for the Survey
What Commenters Said:
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 5-8
Comment: Under the proposed regulatory text (40 CFR 80.1502), any gasoline refiner, gasoline
importer, ethanol blender, ethanol producer or ethanol importer is given two options to comply
with new survey requirements. Either the "responsible party" conducts four quarterly surveys
concerning whether other parties are meeting EPA requirements each year - or the party joins in
the funding of a consortium designed to conduct a survey program. EPA cites the ULSD and the
RFG programs as the precedent for this requirement. However, those programs differ from the
proposed program and as such, do not support the creation of EPA's proposed survey
requirement. With respect to the ULSD program, the survey program was an option that could be
used as an affirmative defense if a violation of the standard was found (whereas the survey under
the proposed program would be a requirement). For RFG, the fuel content and other
requirements of the program apply automatically under the CAA on the basis of the area in
which the fuel is sold (i.e., "covered areas" as defined in Section 21 l(k)(10)(D), with other areas
able to opt-in). By contrast, a waiver of fuel requirements under CAA section 21 l(f)(4) merely
allows for the introduction into commerce of such fuel (i.e., unlike the RFG program, fuel
distributors and retail outlets are not required to sell fuel which has a specified content merely on
the basis that a waiver has been granted). The proposed survey program requirements are neither
an affirmative defense as structured under the ULSD program nor do they stem from mandatory
gasoline content requirements mandated by Congress, as in the RFG program. Today, there are
industry-funded national retail surveys for RFG and highway diesel conducted by an independent
survey group. These were approved by EPA to meet industry requests for regulatory flexibility
and were not created to require industry to fund enforcement. The practice of an industry-funded
retail survey is not a precedent for an industry mandate to fund enforcement. Commenter
provides additional background discussion on the retail surveys and notes that in all cases, this
industry-funded random retail sampling and testing program was an appropriate response to
industry's request for regulatory flexibility and that industry was never forced to participate in
any of these national retail surveys; it was always an option.
Organization: Chevron
Document Number: EPA-HQ-OAR-2010-0448-0073, p. 2
Comment: EPA proposes to institute a self-enforcement scheme patterned after the RFG and
ULSD surveys. The Agency should recall that industry accepted those surveys and their large
role in enforcement in order to gain flexibility in enforcement. Now, in contrast with the
cooperative relationship that has developed in the application of enforcement-by-survey, EPA
proposes to require multiple parties, including those that do not authorize El 5 to be offered
under their trademarks, many without control over the disposition of their refinery-produced
product, and those who may have no intention of marketing El 5, to participate and pay for
Page 36 of 126
-------
expensive surveys without offering any flexibility in return. Such a heavy-handed and misguided
proposal is not likely to garner the cooperation of regulated parties, cooperation that will be
essential to ensuring that a survey approach to enforcement is effective. This overly-broad survey
approach, along with the cost and complexity of such a survey, may deter any attempt at
marketing El5 for the foreseeable future.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 11-12, 15
Comment: The objective of the survey is to verify that dispensers have been properly labeled for
the product being dispensed. Ultimately, those are the responsibilities of the retail site owner and
operator, not the fuel manufacturer. Given the fuel manufacturer's lack of direct control over
those activities, it is inappropriate to require fuel manufacturers to fund and participate in the
periodic surveys. This is a more traditional enforcement function of the regulatory agency itself.
In the event that EPA decides not to assume responsibility for retail fuel dispenser labeling and
the fuel ethanol content survey, this responsibility should fall solely on the ethanol blenders and
marketers that choose to blend and market E15. It is inappropriate to include refiners, importers,
ethanol producers and ethanol importers as obligated parties since these activities do not
automatically put a company into the decision making role of whether to blend or market El 5.
Organization: Marathon Petroleum Company
Document Number: EPA-HQ-OAR-2010-0448-0056, p. 2
Comment: Since the purpose of the survey is to monitor the compliance with the rule, EPA
should take on the financial burden and administrative workload to manage the survey.
Organization: Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0088, p. 4
Comment: Because ethanol producers' commercial transactions take place independently of
retail fuel blending and commercial sale, it is difficult to understand or comment on the elements
of a fuel pump labeling survey. Further, ethanol producers have no input or authority to conduct
a labeling survey, or the regulatory background on retail labeling requirements.
Response:
Preamble section III.D.l.a addresses the comments about whether an industry-funded
ongoing implementation survey program requirement should be imposed on gasoline
producers/importers, ethanol producers/importers, and ethanol blenders. There we clarify
that only gasoline and ethanol producers/importers and ethanol blenders that choose to
make, or participate in making, El5 will be subject to the survey requirement.
1.3.5 Statutory Authority to Require Survey
What Commenters Said:
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 6-8
Comment: EPA is proposing to promulgate misfueling regulations under the authority provided
in CAA section 21 l(c). This authority allows the Administrator to "control or prohibit the
manufacture, introduction into commerce, offering for sale or sale of any fuel or fuel additive."
Page 37 of 126
-------
In the case of E15, however, it is the EPA's grant of a partial waiver under the authority of CAA
section 21 l(f)(4) that provides legal authority to introduce El5 into commerce in certain vehicles
identified within the partial grant of a waiver promulgated by the Administrator. While the
Administrator is seeking to condition the grant of the CAA section 21 l(f)(4) waiver on the
successful completion of this proposed rule, EPA cannot further bootstrap authority found within
CAA section 21 l(c) to layer additional requirements onto the waiver determination in CAA
section 21 l(f)(4). In effect, CAA section 21 l(f)(4) does not support the survey requirements
proposed in this rule and CAA section 21 l(c) does not provide authority for EPA to add
additional conditions onto waivers granted under CAA section 21 l(f)(4). The survey
requirements that are proposed effectively put fuel suppliers in the position of enforcement
officials. They are to impose survey requirements on a representative sample of possible
customers for the explicit purpose of uncovering violations. Apart from the disruption to normal
business relationships that might occur from this requirement, EPA cannot utilize authority
meant to prohibit or control the sale of fuel as authority to effectively "conscript" private sector
enforcement personnel. EPA has the authority to impose rational and reasonable reporting and
enforcement provisions, but CAA section 21 l(c) cannot be stretched so far as to make this
authority unrecognizable.
Response:
It is not correct that the partial waivers are somehow "conditioned" on the "successful
completion" of the proposed misfueling mitigation measures rule. As explained in
Preamble section IV.G, EPA's E15 partial waiver decisions, under CAA section
21 l(f)(4), and the misfueling mitigation measures rulemaking, under CAA section
21 l(c), are separate but related EPA actions. Fuel manufacturers introducing El5 into
commerce under the El5 partial waivers must still meet the waivers' conditions. While
the misfueling mitigation measures established by today's rule should facilitate meeting
some of those conditions, they do supplant or replace the obligation of El 5 fuel
manufacturers to develop and implement misfueling mitigation plans approved by EPA.
The purpose of today's misfueling mitigation rule is to further reduce the potential for
misfueling and the emission increases that misfueling would cause. It is also incorrect
that EPA is relying on CAA section 21 l(f)(4) authority to establish the misfueling
mitigation measures in today's rule, and on CAA section 21 l(c) authority for the partial
waiver decisions. As we explain in the Preamble to today's rule, EPA is exercising its
authority under section 21 l(c) to establish misfueling mitigation and other requirements
in order to prevent emission increases that might otherwise result.
1.3.6 Survey Protocols
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 15
Comment: Commenter notes that they have experience with conducting surveys, and that a
critical concern is the integrity of the sampling and testing process. For example, laboratories
must be certified and must calibrate their test equipment, and samples must be properly drawn
and handled. EPA should impose process requirements to ensure data integrity, whether the
survey is conducted by a consortium or by individual parties.
Page 38 of 126
-------
Response:
EPA concurs with this comment. EPA is requiring such protocols to ensure the integrity
of surveys under both survey options. EPA will approve a survey plan only if it adheres
to adequate sampling, testing, and data quality methods so that the integrity and
effectiveness of the survey is not compromised.
What Commenters Said:
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 8-9
Comment: With respect to product selection, all products should be sampled at the selected
retail site. To satisfy the sampling concerns listed in the NPRM and to maximize the breadth of
the survey and for statistical purposes, the following sampling protocol is suggested: 1) E15/E10
site - procure 2 samples - sample El 5 product (certainty) and 1 additional sample based on
prioritized representative state product mix; 2) E15/E10/EXX site - procure 2 samples - sample
El5 product (certainty) and 1 additional sample based on prioritized representative state product
mix; 3) E15 only site - procure 2 samples of E15 products based on prioritized representative
product mix; and 4) E10 only site - procure 1 sample based on prioritized representative state
product mix. Also, augmented sampling should be required (at the end of the each
survey/quarter) to determine if any additional sampling is necessary to achieve the annual
program sample requirement.
Response:
EPA generally concurs with this comment and believes that the final regulations ensure
that the survey will obtain representative samples of gasolines dispensed at retail stations
in the surveyed area(s) (see § 80.1502(b)(4)(iv)(C)). EPA will consider specific fuel
sample selection scenarios and the need for augmented sampling as part of the survey
plan approval process.
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 12
Comment: Section 80.1502(a) states that a survey must be conducted "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." This is overly broad. Commenter
provides additional discussion and examples to illustrate their point and concludes that
effectively this provision would impose the obligation to conduct the surveys on all
refiners/importers and ethanol producers/ importers. Commenter believes that this is not what
EPA had intended. The best solution to the problems created by EPA's proposed language is to
limit the obligation to conduct the surveys to ethanol blenders and marketers.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 9
Page 39 of 126
-------
Comment: With respect to transit!oning to El 5, EPA should consider survey plans that
comprehend the phase-in of E15 (in lieu of a nationwide survey). In general, both gasoline and
ethanol refiners, importers and blenders could have difficulty in pinpointing areas of El 5
distribution. To mitigate this concern and ensure adequate survey coverage for potential El5
distribution, the most practical solution is the implementation of a full state survey based on
refiner, importer, and blender input. For example, if only a city within a state is expected to
receive El 5 distribution, the entire state would be surveyed. This approach is administratively
efficient and creates sufficient buffer areas to ensure that potential El5 distribution would be
covered by the survey.
Response:
EPA partially concurs with these comments and will only approve survey plans that
appropriately define the survey area based on all areas that may reasonably be supplied
by a responsible party's El5, gasoline, blendstock for oxygenate blending, ethanol, or
gasoline-ethanol blend that is intended for use in or as E15. However, EPA does not
agree that it would necessarily be appropriate to define survey areas based on state
boundaries. It does not seem reasonable to require small businesses that choose to market
E15 in very limited geographical areas to survey large areas that are not anticipated to
have El 5. Furthermore, in many parts of the country, state lines do not appropriately or
sufficiently describe or define gasoline distribution areas. EPA will consider the
appropriate survey areas through the survey plan approval process. If a responsible
party's relevant fuel (i.e., El5 or gasoline, blendstock for oxygenate blending, ethanol, or
gasoline-ethanol blend that is intended for use in or as El5) can be or is intended to be
marketed and sold in an area that is either difficult to define or would potentially be
nationwide, then such a party would have to conduct a survey with an approved survey
plan under Survey Option 2.
What Commenters Said:
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 9-10
Comment: The NPRM requires overnight delivery of the samples to the lab, but this is not
possible under this program due to structural issues with the proposed sampling plan. The
samplers or ICs (Independent Contractors) primarily sample later in the day (they have other
full-time jobs) and in general sample multiple locations during a survey period. In addition, the
shipping carrier requires advance notice for pickup (usually one day for the RFGSA programs)
for the following day. Due to these issues, overnight shipping is not an option. Next day shipping
is an option but will add an additional $450,000 to $475,000 to the cost of the program. It is
recommended that EPA adopt the same shipping/delivery system for the El5 program that is
currently in place for the ULSD program. The NPRM proposes samples be analyzed within 24
hours of sampling, which commenter does not believe to be possible. To determine ethanol
content under 40 CFR 80.46, D5599 (OFID) and D4052 (Density) are required. In addition, there
may be a requirement for RVP during the summer season (June 1- Sept. 15). D5599 will drive
the sample analysis process and it takes 45 minutes to run the test. Based on the anticipated
sample loads (50-75 samples per business day) for this program (and several best case scenarios
in the lab - shipping issues, equipment uptime, process control issues) to receive, prep, split,
insert QA/QC samples, run the test via auto samplers, review results, and rerun/confirm any
Page 40 of 126
-------
PNCs, the best case scenario would be 72 hours. Commenter asserts that the most realistic goal
would be 4-5 days, but this would require additional resources/costs of approximately $450,000.
EPA should consider a more normal sampling-processing schedule (10-12 business days). There
will still be some incremental costs versus the original proposed process estimated at $50 million
annually. Once samples are analyzed and confirmed the results would be released and posted to
the website on a daily basis. If EPA modifies the program, the estimated costs need to be
reassessed. The original annual cost of the program ($2,050,000) provided to EPA by the RFG
Survey Association was based on 7,500 annual samples, ground shipment, and 30 day turn-
around for the sample analysis (PNC would be handled on an expedited basis). The RFG Survey
Association would initially recommend a sample size of 9,500 samples to ensure meeting the
minimum sample requirement. The estimated annual cost of this program with the ground
shipping proposal and 10-12 business day turn-around for sample analysis is $2,400,000.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 12
Comment: The requirements for overnight shipment of the samples collected and testing within
24 hours are not practical and should be deleted in favor of accepted laboratory procedures.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 7
Comment: EPA's proposal that a survey fuel sample be shipped on the same day it is collected,
and that the sample be analyzed for ethanol content within 24 hours is unnecessary to ensure
program integrity, is not practically feasible, and creates unnecessary additional costs. Next-day
shipping and expedited laboratory analyses (4 days compared to standard lab turn-around of 10-
12 days) could add as much as approximately $1 million per year of additional cost with little
impact on program compliance.
Response:
EPA partially concurs with these comments. EPA is finalizing a minimum sample size of
7,500 for national surveys (see Preamble section III.D.l.c for more discussion), and will
consider larger sample sizes through the survey plan approval process if appropriate.
EPA has extended the amount of time allowed for the shipping and analyzing of fuel
samples as part of the survey program (see the Preamble section III.D.l for more
discussion).
What Commenters Said:
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071.1, p. 5
Comment: Commenter recommends that the ongoing implementation survey cover a larger
percentage of service stations (a minimum of 20%) to ensure compatibility with fuel regulations.
Response:
EPA does not concur with this comment. EPA is finalizing the proposed minimum
sample size of 7,500 samples per year for nationwide surveys conducted under Survey
Option 2. The commenter did not provide any justification for why 7,500 samples would
Page 41 of 126
-------
be inadequate nor did they provide justification for why 32,000 samples are necessary.
Please see Preamble section III.D.l for more discussion.
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 6
Comment: Under both survey options, the sample size required should be sufficient to provide a
reasonable assessment of compliance with El 5 requirements, but not so large so as to create
unnecessary costs and burdens. Sampling also should be limited to geographic regions with El5
market saturation above de minimis levels. For example, EPA could provide that sampling in a
state or region need not occur until the year after El 5 has achieved at least a 5% market
penetration based on data from the prior year. Commenter supports the three sampling strata of
1) densely populated areas; 2) transportation corridors; and 3) rural areas.
Response:
EPA does not concur with this comment. EPA is finalizing the proposed sample size
methodology for nationwide surveys under Survey Option 2 and will determine minimum
sample size requirements for localized surveys under Survey Option 1 through review
and approval of the survey plans. Please see Preamble section III.D.l for more discussion
on why today's sample size determination methodology is most appropriate for the
ongoing implementation survey program.
1.3.7 Portable Analyzers
What Commenters Said:
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 22
Comment: The compliance survey program should be expanded to include a review of whether
misfueling is occurring and at what estimated rates, but should be used as a back-up compliance
measure. The survey program should include a review of the warning labels used at gasoline
retailers and testing of ethanol content and RVP at fuel pumps dispensing E10 and higher blends.
Portable analyzers are available and if the analysis of the fuel sample is close to the limit, a
highly accurate fuel analyzing technique should be used.
Response:
EPA is not requiring the visual monitoring of fuel dispensers to determine misfueling
rates at this time. Please see the Preamble section III.D.l.a for more discussion. The
survey program does include a review of the E15 labels used at retail stations, requires
the testing of ethanol content of fuel samples, and requires the testing of RVP for fuel
samples labeled as El5. EPA does not believe that portable analyzers provide results that
are accurate enough to determine whether fuel samples violate RVP standards or ethanol
content requirements. In other words, these samples would need to be shipped to and
analyzed at an appropriate laboratory in addition to the field analysis. This would pose a
significant additional cost on responsible parties. Based on experience, we believe the
Page 42 of 126
-------
survey provisions of the final rule will be effective in promoting compliance with El 5
labeling and content requirements and identifying instances of noncompliance.
1.3.8 Scope of Survey
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 14-15
Comment: EPA should broaden its view beyond El 5 compliance and consider the overall
ethanol blend market, which may also provoke misfueling. The survey efforts present a unique
opportunity to gather important information at a nominal additional cost. Even though the waiver
decision applies to El 5, it also implicitly continues the existing prohibition on using higher
gasoline-etnanol blends in conventional vehicles. EPA's proposed rule also imposes labels on
intermediate blends and E85. Blender pumps are already in the marketplace with little to no
government supervision and information about this submarket is completely lacking. As such,
blender pumps and all their fuels should be included to check labeling, RVP and ethanol content.
Response:
EPA is not finalizing survey requirements for E85 and blender pumps, nor are we
finalizing label requirements for gasoline-ethanol blends containing greater than 15 vol%
ethanol. Please see Preamble section HID. 1 for more information on why EPA is not
requiring these pumps to be surveyed, and Preamble section III.B.2.g for more
information on why EPA is only requiring labels for El 5.
What Commenters Said:
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, p. A2
Comment: The E15 survey should be conducted as a facet of EPA's compliance and
enforcement strategy and as such, should cover a sampling of all stations, not just those
advertising E15. EPA should take enforcement action when violations are found by the survey.
Response:
EPA concurs with this comment. The survey program will cover all retail stations in
geographic areas that are surveyed, not just those that advertise selling El 5. EPA will
take appropriate enforcement action when violations are found by the survey.
1.3.9 Survey Reporting Year
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 7
Comment: Survey plans should be submitted to EPA by March 31 of each year and EPA should
review and approve such plans by May 31 of each year, allowing sufficient time to implement
Page 43 of 126
-------
the plan beginning in July. Commenter does not support EPA's proposal that proof of payment of
a surveyor be sent to EPA by certain deadlines. If obligated parties fail to comply with EPA
Survey Requirements, they will be subject to penalties under the Clean Air Act. The requirement
to provide EPA proof that a surveyor has been paid by a certain time imposes an additional and
unnecessary cost.
Response:
EPA is maintaining the calendar year for the annual implementation schedule for ongoing
surveys for the reasons discussed in Preamble section HID. 1.
1.3.10 Small Businesses
What Commenters Said:
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, 0096, p. 8
Comment: Any survey adopted by EPA must ensure that small business petroleum retailers are
protected from arbitrary process, uneven enforcement or unjustified costs.
Response:
EPA concurs with this comment. EPA believes that providing two survey options will
allow businesses to determine which option will be the most cost-effective method of
complying with ongoing survey requirements. Please see Preamble section III.D.l for
more information regarding survey flexibility and section V.C for Regulatory Flexibility
Act information addressing small business concerns.
1.3.11 Visual Monitoring of Pumps
What Commenters Said:
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 11
Comment: Participation in this survey could be used to meet a portion of a periodic sampling
and testing requirement to have access to a regulated party's affirmative defenses. Lack of
participation in such surveys would constitute condoning or facilitating misfueling. In addition,
in the field, monitoring of self-serve customer fueling should be included in focus group
evaluations of any proposed labeling scheme.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 14-15
Comment: The person taking samples as part of the fuel properties surveys could stay at the
pump for a short additional period to observe consumer behavior at the pump. These
observations need not be made at every survey, but enough observations should be made,
recorded, and analyzed to determine the rate and extent of misfueling.
Response:
Page 44 of 126
-------
See the response at section 1.3.7 above concerning visual pump monitoring, and
Preamble section III.D.l.a for responses to comments concerning affirmative defenses.
1.3.12 Public Availability of Survey Plans and Results
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 14
Comment: EPA should make both survey plans and results available publicly and in a timely
fashion. The survey plans should be made public as soon as EPA approves them, and the data
collected by the survey should be made public within 30 days of receipt or within the same
quarter of sampling.
Response:
EPA partially concurs with this comment. Please see Preamble section III.D.l.a for more
information regarding making survey plans and results publicly available.
What Commenters Said:
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071.1, p. 5
Comment: Survey results should be made available to the public via an EPA website to ensure
full information disclosure.
Response:
EPA concurs with this comment. Please see Preamble section III.D.l.a for more
information regarding making survey plans and results publicly available.
1.3.13 Public Input
What Commenters Said:
Organization: Boat Owners Association of the U.S.
Document Number: EPA-HQ-OAR-2010-0448-0078, p. 3
Comment: EPA should consider integrating multiple public input opportunities on the fuel
labeling survey that could help gather input from the public more efficiently and quickly (e.g.,
Facebook, Smartphone apps, etc.). Through these types of mechanisms, members of the public
could help develop the database and the survey with respect to where labels have been installed
and where they have not.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 14
Comment: EPA and affected stakeholders should set up an ongoing investigation group to get
early warnings from misfueling problems in the field. This early warning system could be
Page 45 of 126
-------
developed or managed through the compliance survey program and additional responsive control
measures could be developed as needed.
Response:
Before El5 can be introduced into commerce, responsible parties must demonstrate that
areas that could have El 5 in the marketplace will be surveyed. The plans and results of
these surveys will inform EPA about which areas have El 5 in the marketplace and
largely determine whether fuel dispensers are properly labeled. Consequently,
establishing additional systems for gathering information, including from the general
public, is not necessary at this time. However, members of the public may report
potential violations through EPA's Office of Enforcement and Compliance Assurance
webpage. Use of social media to both disseminate and receive information from the
public will also be pivotal in any industry-led public education and outreach effort.
What Commenters Said:
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071.1, p. 5
Comment: Each entity offering El 5 should register with an online database. This would ensure
that EPA and state government agencies are aware of new entities that would be subject to
sampling for the El5 label and ethanol content survey.
Response:
We do not believe it is necessary to require entities that choose to manufacture, introduce
into commerce, offer for sale, or sell El5 to register with an online database. As
discussed in Preamble section IV.G, EPA will be aware of ethanol producers/importers
and gasoline refiners/importers that manufacture El5 or intend to manufacture ethanol,
gasoline, or a blendstock intended for use in the manufacture of E15 because these parties
must first register under 40 CFR 79. These parties must also submit plans demonstrating
how they will satisfy the waiver conditions prior to the introduction of E15 into
commerce, and demonstrate how other parties will be informed of the misfueling
mitigation requirements to which those parties would become subject under this rule
(e.g., labeling, PTDs). Additionally, the plans under both survey options will help
identify where El 5 is being sold. If a responsible party elects to conduct a localized
survey under Survey Option 1, they will have to identify all areas which may be
reasonably expected to be supplied with their gasoline, blendstock for oxygenate
blending, ethanol, or gasoline-ethanol blend if these may be used to manufacture El 5 or
as El 5. If a responsible party elects to conduct a nationwide survey under Survey Option
2, areas that are offering El 5 will most likely be found through the nationwide survey.
Therefore, the survey requirements finalized as part of today's action coupled with the
waiver conditions will provide EPA an accurate picture of where and when El 5 will be
introduced into commerce. In light of these other requirements, EPA does not believe that
creating such a reporting system is necessary or cost-effective.
1.4 Program Outreach
Page 46 of 126
-------
1.4.1 EPA Public-Private Outreach Program
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 12
Comment: Effective outreach to consumers and stakeholders is essential to the successful
implementation of EPA's program. The Clean Diesel Fuel Alliance (CDFA) is a good model for
such outreach. EPA should work with private industry to develop: 1) a website containing
educational information for consumers (such as what fuels are suitable for use in their vehicles);
2) educational brochures and pamphlets (which retailers can choose to provide in their stores); 3)
a 1-800 number staffed by knowledgeable professionals who can answer questions that
consumers, retailers, or other stakeholders may have; 4) workshops and/or roundtable
discussions to monitor the effectiveness of ElS's introduction into commerce and consider ways
to improve this transition; and 5) workshops and/or roundtable discussions to identify remaining
technical, legal, and market-based obstacles to the safe, legal, and profitable introduction of E15
and to develop strategies to overcome these obstacles.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 13-14
Comment: EPA should conduct a broad and comprehensive outreach to consumers (particularly
at retail gasoline stations) so that they understand the fuels-selection process and the
consequences of their selection. EPA and retailers should remind consumers to read the owner's
manuals for their products to determine which fuels are acceptable.
Organization: American Coalition for Ethanol (ACE); IL Corn Growers Association (ICGA);
Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 8; EPA-HQ-OAR-2010-0448-0092,
pp. 2-3; EPA-HQ-OAR-2010-0448-0088, p. 5
Comment: Outreach to consumers and stakeholders will be a critical component for a successful
introduction of El 5 into the marketplace. Commenters indicate that they are ready to partner
with EPA and other stakeholders in any campaign to promote the energy, environmental and
performance benefits of increasing ethanol use in today's automotive engines.
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071, p. 5
Comment: Commenter notes that although EPA should serve as the primary point of contact for
fuel/ethanol labels (not an industry organization), an alliance similar to that formed under the
ULSD program should be formed for public outreach. This alliance should also include
representation from environmental groups and consumer advocacy organizations.
Organization: American Automobile Association (AAA)
Document Number: EPA-HQ-OAR-2010-0448-0068, p. 2
Comment: While EPA outlines that outreach should include engagement through a "variety of
media," commenter remains concerned that inadequate guidance has been provided with respect
to the shape and results of the proposed public outreach campaign. EPA should provide further
Page 47 of 126
-------
direction for what baseline acceptable level of engagement is appropriate and necessary to
accompany the partial waiver for introduction of El 5 gasoline into the market.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 9-10
Comment: The proposed rule does not contain any specific public education proposal. EPA
assumes that an El5 outreach campaign would be similar to the outreach efforts for ULSD - a
stakeholder collaboration called the Clean Diesel Fuel Alliance (CDFA). However, the ULSD
program is not analogous to the El5 fuel stream bifurcation. With respect to El5, EPA simply
assumes 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"
(75 FR 68056). However, ethanol producers and corn-industry groups will seek to aggressively
market El5, and in fact many stated for the record that no label was necessary, or that only an
informational label was needed. Commenter provides additional discussion on this issue and
asserts that EPA and other relevant federal agencies should seek funding and additional
resources from Congress to establish a program and hire staff in a way that matches the
fundamental change to the nation's fuel supply that EPA is undertaking. Commenter adds that
EPA cannot simply rely on the goodwill of industry stakeholders who have a direct and obvious
financial incentive to sell the product to as many consumers as possible, and to promote their
product.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 16
Comment: Although it is important to ensure that consumers have access to accurate,
appropriate, and timely information, it is unlikely that manufacturers could participate in any
outreach efforts. First, EPA's waiver decision conflicts with manufacturer recommendations for
existing conventional vehicles (non-FFVs). Second, the industry cannot endorse EPA's waiver
decision because it continues to believe that it was premature, with important research still
pending. Finally, despite the available test data, each manufacturer will still need to decide how
and when to communicate with its customers, and what it will say to them concerning specific
products. These company decisions are business choices that must be made privately to comply
with antitrust law.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 2
Comment: Commenter observes that it is unclear which entity will underwrite and participate in
education and outreach and that EPA has not provided any structure or expectations for
stakeholder participation. EPA should develop a comprehensive public education plan that
includes a website with accurate consumer information, and use of other media, including social
media to provide this information. EPA should also develop and distribute educational materials
including public service advertisements to warn against misfueling and must commit resources to
communicate accurate information to correct misinformation about the appropriate use of El 5.
Response:
Section III.E of the Preamble addresses comments about facilitating a public-private
partnership and EPA's role in public outreach. As we state there, the ULSD outreach
program provides a successful example of a public education and outreach campaign led
Page 48 of 126
-------
by industry with EPA participation. The ULSD program demonstrates that industry is
best situated to coordinate with the parties involved in the production, transport, and
marketing of fuels to provide effective consumer education. Businesses interact with
consumers every day and in various ways (e.g., advertising, web sites, and pamphlets)
about the fuels they sell, and can draw on their experience and proximity to develop and
implement effective public educational campaigns.
We recognize the need for accurate and objective information in educating the public
about the appropriate use of El 5. As in the USLD program, EPA will participate in
development and dissemination of E15 outreach materials. It is also important to
remember that under the partial waivers and today's rule, businesses that decide to sell
El5 will need to make decisions about how to promote El5 in a manner that also
minimizes misfueling. We intend to work with El5 stakeholders to convey accurate
information and monitor the effectiveness of misfueling mitigation efforts, including
public education and outreach.
We are not establishing a specific education proposal or plan at this time. As noted
above, we believe stakeholders have a valuable and leading role to play in the
development and implementation of such a plan. Also, the specific components of an
education and outreach campaign may change or evolve as El 5 enters the market. Since
the El5 partial waivers allow, but do not require, El5 to be introduced into commerce for
MY2001 and later light-duty motor vehicles, it is now up to businesses to decide whether
and how to market E15. In light of the various additional steps that need to be taken to
make and market El5, it is likely that El5 will be introduced in some areas first and
expand into other areas over time. As that occurs, it will become clear which businesses
and other groups have a stake in El 5 and should be part of educational efforts. The
evolving nature of El 5 's introduction into commerce also means that components of an
educational campaign can be implemented, tested and expanded as appropriate.
We welcome commenters' specific suggestions for an El 5 public education program and
will include them in discussions with stakeholders involved in developing an outreach
campaign. We also recognize that any outreach conducted by vehicle and engine
manufacturers will likely reflect their continued concerns for the compatibility of El 5
with older and newer vehicles.
1.4.2 Website for Public Outreach
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 12
Comment: The Clean Diesel Fuel Alliance uses a website that has worked well to disseminate
relevant information. EPA should develop a website for misfueling mitigation information and,
potentially, other communication tools for identifying misfueling mitigation measures. The
website development will need to consider how consumer queries should be handled to mitigate
any possible misfueling activities. If the EPA elects to finalize this rulemaking prior to the
completion of industry testing, a public education campaign should educate consumers of all
potential risks to all vehicles as well as other gasoline-powered engines and the expected impact
Page 49 of 126
-------
on fuel economy. The reach and magnitude of this change in ethanol content requires a stronger
outreach.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 7
Comment: Commenter notes that they have established a new website that serves as a platform
to deliver detailed, up-to-date, and accurate information on El5 and EPA's approval for use of
E15 in certain vehicles. They offer this website as a dedicated information source about E15.
Commenter indicates that they are willing to work with other private and public stakeholders in
selecting and managing content for this website as part of a broader public education effort to
prevent misfueling.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 16
Comment: To the extent an outreach effort develops, EPA should ensure that it includes a
website that directs consumers to the appropriate locations on each vehicle manufacturer's
website.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 2
Comment: EPA should develop a comprehensive public education plan that includes a website
with accurate consumer information, and use of other media, including social media to provide
this information.
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071.1, p. 5
Comment:
EPA's online Green Vehicle Guide could be used as a basis for consumer information on fueling
their vehicles, with a separate page for nonroad engines. The guide could be easily altered to
clearly indicate if each engine is able to run on EO, E10, E15, or E85 blends, etc. Engine
warranty information could also be linked through this website so that owners can easily access
their vehicle or other engine's warranty and liability information.
Response:
We agree that a website for providing information about the appropriate use of El 5 is apt
to be an important element of any public education and outreach campaign. As we work
with stakeholders to develop and conduct public outreach, we will raise for consideration
the various suggestions made by commenters concerning the creation and content for
such a website.
What Commenters Said:
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 7
Comment: Instead of creating a website, EPA should use all available space on a label to
communicate clear warnings and information to consumers.
Page 50 of 126
-------
Response:
EPA believes that the appropriate amount of information is on the label. A label with a
great deal of detail is more likely to be ignored. Section 1.1 of this document and section
III.B of the Preamble to the final rule discuss comments on labels that address NMMA's
concern.
1.4.3 Public Outreach Message
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 8, 11
Comment: Commenter states that the public outreach message must strongly and clearly
communicate the negative impacts of misfueling in order to effectively dissuade intentional
misfueling for financial or convenience reasons. Commenter further states that the process of
educating consumers about using diesel fuel in diesel vehicles and premium gasoline in certain
selected light-duty vehicles has been an onerous and difficult process. Even with extensive and
ongoing educational processes in place, unknowing consumers continue to fuel diesel vehicles
with gasoline and avoid using premium fuel even when recommended by the manufacturer.
Commenter provides additional discussion and cites a recent incident in which the manufacturer
was forced to recall vehicles for safety reasons when consumers intentionally misfueled with
regular grade gasoline in lieu of the required premium grade. Commenter believes it is
unreasonable to assume that EPA's proposed misfueling controls will result in a higher degree of
compliance than history reflects and as such, those controls are destined to fail.
Response:
We agree that an important part of the public outreach message is to provide more
information about the potential damage that misfueling could cause. The required El 5
label includes the statement that use of El 5 in vehicles and engines not covered by the
partial waivers "may cause damage," and any accompanying public education campaign
should communicate additional information that will help consumers understand the
nature and consequences of the damage that could result. We plan to work with
stakeholders in developing and implementing an outreach program that provides such
information.
We understand that past efforts by governments and/or the private sector have not
avoided all instances of consumer misfueling, but as explained in section III.F of the
Preamble on other misfueling mitigation measures, we believe that the rule being
promulgated today, together with the partial waivers, will effectively minimize
misfueling. We will also work with stakeholders to monitor the introduction of E15 and
the effectiveness of the misfueling measures put in place under today's rule and the
partial waivers, along with the public education and outreach efforts that accompany
ElS's entry into the market. With that information, we can assess whether additional
mitigation measures or outreach may be needed.
1.4.4 Energy Content and Fuel Prices
Page 51 of 126
-------
What Commenters Said:
Organization: Association of International Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0079, pp. 8-9
Comment: Many consumers buy fuel based almost exclusively on price per gallon and may be
attracted to El 5 due to its lower price. Consumers, however, may fail to understand that the
lower prices for higher ethanol gasoline are due to lower energy content, which will affect fuel
economy. Ethanol contains about two-thirds of the energy content of gasoline per unit volume;
hence, gasoline blended with ethanol has a lower energy content than neat gasoline. Fuel with
higher ethanol content (such as El5), therefore, should be priced lower per gallon than fuel
without ethanol or with less ethanol (such as EO or E10) in order to provide the same value to
consumers. EPA should develop a unit pricing approach for gasoline options similar to those
used in grocery stores. In this case, unit pricing for the gasoline pump label would provide the
price per gasoline-energy-equivalent and would allow consumers to compare fuel options on an
apples-to-apples basis. Without an understanding of the relationship between energy content to
price, many consumers may intentionally misfuel with El5 because they falsely perceive it to be
a better bargain.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 10-11
Comment: EPA has previously suggested that EO could be distributed as "Premium" grade fuel
with El 5 distributed as "Regular" grade to align the consumer cost structure with the energy
content. This approach would further exacerbate the likelihood of intentional misfueling based
on the price differential between regular and premium grades. The likelihood that an EO
premium grade and an El5 regular grade could be combined to provide a mid-grade fuel that
complies with both RVP and T50 requirements is remote. This approach would likely result in
three grades including E10, E13 and E15. In addition, the gasoline blend stock required to
provide premium octane levels with less than 10% ethanol will increase blend stock fuel costs
thereby increasing the current disparity between fuel costs for different octane grades.
Response:
In the RFS2 NPRM (see 74 FR 25017 (May 26, 2009)), EPA mentioned that a possible
fuel configuration at the pump would be an E15 regular grade gasoline and an E10 or EO
premium grade gasoline. Although EPA suggested this possible fuel configuration, many
other potential configurations may be possible. Ultimately, businesses will determine
which blendstocks to produce, the amount of ethanol to be added, and the way to
configure retail station tanks to market El 5 based on what makes the most sense
according to their business plans and consistent with national, state, and local fuel
requirements. We also understand that the scenario mentioned in the RFS2 NPRM raises
the issue of the comingling of El 5 with lower gasoline-ethanol blendes that result in a
fuel that violates summertime RVP requirements. To address that issue, we have included
PTD requirements designed to inform retail stations that comingling El 5 with lower
gasoline-ethanol blends may result in fuels that violate summertime RVP requirements
(see section III.C of the Preamble for more information).
Page 52 of 126
-------
In light of the many decisions that businesses still need to make about whether and how
to produce and market El5, we believe that it is premature to draw any conclusions about
how E15 may be priced compared to E10 or to impose any requirements based on the
assumption that El5 will be priced higher than E10. With respect to energy content, we
agree and have acknowledged for the past 30 years that vehicles operating on E10 will
have a decrease in miles-per-gallon fuel economy. However, we note that the energy
content of EO can vary from gasoline to gasoline. Also, other oxygenates, such as
butanol, that have an energy content different than ethanol can also be used in making
gasoline. Considering the variation in fuel composition and the comingling of fuels that
occurs throughout the fuel distribution system, we believe that the establishment of a
unit-pricing label would be exceedingly complicated and not practical.
As discussed in section III.B of the Preamble, the Agency believes that the label language
informing consumers of possible damage to vehicles, engines, and equipment not covered
under the partial waiver decisions will be effective in dissuading consumers from
misfueling with El 5. The costs associated with potential damage to the engine from
misfueling greatly outweigh the marginal savings that may be possible if ethanol is
favorably priced compared to gasoline, which has not always been the case.
1.5 Other Misfueling Mitigation Measures
1.5.1 Need for More Mitigation Measures
What Commenters Said:
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 3
Comment: EPA should require El 5 nozzle hand warmers to be a uniform and instantly
recognizable color with a different texture. Commenter suggests a bright and distinctive color
such as neon pink, safety orange or bright yellow to clearly indicate to customers that this fuel is
different and not appropriate for many vehicles. This color and texture consistency will assist
any public outreach and education efforts. Messages that state "do not use the pink handled
pump for your gasoline powered equipment — lawnmower or boat, or in your 2006 and older
car" will be much easier for the consumer to understand than any discussion of ethanol
concentration levels.
Organization: American Automobile Association (AAA)
Document Number: EPA-HQ-OAR-2010-0448-0068, pp. 1-2
Comment: Use of a label alone is insufficient and places an unfair burden of liability on
consumers. EPA should consider additional measures at the pump beyond labeling to ensure that
misfuelings are mitigated to the greatest extent possible. Specifically, commenter requests
further study and consideration of the effectiveness of additional plans including, but not limited
to, different pump nozzle grips and/or video or audio warnings when an El5 pump is lifted from
a dispenser. These additional measures are worth the additional cost given the level of risk
placed on consumers.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 11, 14
Page 53 of 126
-------
Comment: EPA must substantiate and explain how it will assess whether misfueling has
occurred, the rate of misfueling, the need for prevention efforts to ensure compliance, and how
enforcement will occur on an ongoing basis. Commenter adds that given the challenges with
enforcement, EPA has a legal obligation to try and develop automatic pump-blocks. Because
some of these applications have not been applied to gasoline pumps in the field, EPA should
initiate a study with affected stakeholders to evaluate how these automatic systems would
perform and what economic and technical challenges would need to be addressed.
Response:
See Preamble section III.F.l.a for our response to comments related to hand warmers.
See Preamble section III.F. 1 for our response to comments related to requiring further
misfueling mitigation measures. As noted there, it is now up to businesses to decide
whether and how to market El 5 for MY2001 and newer light-duty motor vehicles, and
several additional steps must be taken before E15 can be made broadly available. As a
result, we currently are not in a position to assess when, where and how El5 will be
marketed. With the partial waivers and today's rule, we have established a misfueling
mitigation program that we believe will be effective in minimizing the potential for
misfueling. We will enforce the requirements of that program, just as we enforce other
EPA regulatory requirements. We typically do not share our enforcement strategy with
the regulated community, and we will not do so here. We will work with stakeholders to
identify any issues that arise as E15 enters the market and monitor the effectiveness of
the misfueling mitigation program. We do not agree that EPA has any legal obligation to
develop automatic pump-blocks at this time. Pump-blocks are among a number of
additional mitigation measures that some commenters have suggested and may be
considered in the future if existing measures prove insufficient.
What Commenters Said:
Organizations: American Lung Association (ALA); ECHO, Inc.; National Marine
Manufacturers Association (NMMA); Outdoor Power Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0097, p. 3; EPA-HQ-OAR-2010-0448-0033,
pp. 4-5; EPA-HQ-OAR-2010-0448-0095, p. 9; EPA-HQ-OAR-2010-0448-0053, pp. 13-
14
Comment: EPA should require all fuel stations dispensing El5 to require affirmative
confirmation from consumers that they wish to purchase El 5. This can be easily accomplished
through a mandatory electronic key pad approval (tied to payment method or fuel grade
selection), which the consumer would need to confirm prior to purchase. The electronic keypad
would include a message similar to that outlined on a final label. ECHO, NMMA and OPEI
specifically noted that EPA should prohibit the sale of fuel containing more than 10% ethanol
from older fuel pumps that do not have electronic keypads. OPEI specifically recommends that
EPA mandate the implementation of an electronic key pad approval process that is tied to the
payment method or fuel grade selection, which would force the consumer to affirm on the screen
(prior to pumping) that they understand that fuel containing more than 10% ethanol could: 1) not
legally be used in nonroad products; 2) cause substantial damage to such products; and 3) void
warranty coverage. ALA noted that many self-service gas stations require the user to key in their
billing zip code prior to authorizing a credit or debit card transaction or prepayment with a
cashier or other cashier authorization prior to the pump operating and that EPA should require
Page 54 of 126
-------
similar measures to preclude misfueling such as using the keypad to require consumers to type in
their vehicle's model year or authorization by the cashier before proceeding to use El5.
Response:
See Preamble section III.F.2.b for our response to comments related to keypad
confirmation.
What Commenters Said:
Organizations: American Lung Association (ALA); Association of International Automobile
Manufacturers (AIAM); ECHO, Inc.; National Automobile Dealers Association
(NADA); National Marine Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0097, p. 3; EPA-HQ-OAR-2010-0448-0079,
pp. 7, 10; EPA-HQ-OAR-2010-0448-0033, p. 5; EPA-HQ-OAR-2010-0448-0085, p. 2;
EPA-HQ-OAR-2010-0448-0095) p. 8
Comment: EPA should consider implementing automatic fuel pump blocks perhaps using radio
frequency identification (RFID). NMMA specifically requested that EPA begin undertaking pilot
projects on RFID technology on vehicles and fuel pumps. This technology, which would be
affixed to flex-fuel vehicles and E15-approved vehicles, would lock fuel dispensers out of
operation for all vehicles, vessels, engines, and equipment which lack the RFID tag, which
provides data identifying the vehicle and its fuel capability with a corresponding RFID reader
outfitting on fuel dispensers selling El 5. While new vehicles would be equipped with the RFID
tag at the factory, EPA, in conjunction with industry, would need to undertake a retrofit program
for past-year approved motor vehicles. While somewhat complex, this measure would provide a
robust, non-intrusive misfueling safeguard and be highly effective. Over time, this will ensure
that appropriate fuel is being used, and significantly reduce the risk of hazards and consumer
backlash with mid-level ethanol and other biofuels.
Response:
See Preamble section III.F.2.C for our response to comments related to RFID technology.
What Commenters Said:
Organizations: American Lung Association (ALA); National Marine Manufacturers
Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0097, p. 3; EPA-HQ-OAR-2010-0448-0095,
p. 9
Comment: EPA should consider implementing policies that require cashier lockout for mid-
level blends (i.e., fuel dispensers selling El5 or other mid-level gasoline-ethanol blends would be
available to dispense fuel only after the customer speaks with the cashier to unlock the pump).
The cashier would need to be informed of compatible vehicles, engines, and equipment and only
unlock the pump once it is determined that the consumer has approved equipment and that
industry or EPA could provide a directory of approved vehicles to the cashier. The cost for this
safeguard is low and the effectiveness would be high. In cases where a boat is being towed, the
cashier would need to confirm with the customer that the fuel is not approved for any marine
vessel and, if used, may cause injury or property damage. In addition, because the fuel pump is
Page 55 of 126
-------
dispensing El5, a label will be in place to advise the consumer as an additional information/
warning source.
Organizations: Association of International Automobile Manufacturers (AIAM); National
Marine Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0079, p. 10; EPA-HQ-OAR-2010-0448-0095,
p. 8
Comment: EPA should thoroughly evaluate each of the 18 potential mitigation measures to
reduce the rate of misfueling that have been identified in the comprehensive report entitled
"Evaluation of Measures to Mitigate Misfueling of Mid-to-High-Ethanol Blend Fuels at Fuel
Dispensing Facilities" (prepared for API by Gilson Environmental LLC; April 27, 2010). EPA
needs to evaluate the effectiveness and feasibility of these and other potential misfueling
controls.
Organizations: American Lung Association (ALA); National Marine Manufacturers
Association (NMMA); Pennsylvania Department of Environmental Protection (PA DEP)
Document Numbers: EPA-HQ-OAR-2010-0448-0097, p. 3; EPA-HQ-OAR-2010-0448-0095,
p. 9; EPA-HQ-OAR-2010-0448-0058, p. 3
Comment: EPA should consider mandating that El5 or other mid-level gasoline-ethanol blends
can only be sold at separate, segregated, clearly-labeled fuel islands. For existing E85 pumps, or
where blender pumps can be incorporated, this would represent a long-term solution to EPA's
decision to bifurcate the nation's fuel stream. It would also be fairly obvious to consumers that a
separate pump, which would be clearly labeled, is only for certain approved motor vehicles. PA
DEP noted that this would be a cost-effective measure that would prevent or mitigate the
misfueling of vehicles and equipment.
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, pp. 2, 4-5
Comment: Although EPA has proposed a rule to mitigate misfueling, the proposal contains
neither concrete measures that will actually prevent misfueling in practice nor clear criteria for
what constitutes ensuring that all reasonable precautions are achieved in practice to avoid
misfueling. Additional enforcement mechanisms are needed to augment the label requirements
being developed. In the absence of additional enforcement mechanisms and deterrents, it is
practically impossible to limit misfueling at the retail level. Nozzle reconfiguration or some other
physical limitation should be implemented at the point of sale, particularly if there are strong
economic incentives for pre-MY2007 vehicles to use El 5.
Organization: Mercury Marine
Document Number: EPA-HQ-OAR-2010-0448-0057, p. 2
Comment: Commenter suggests that pumps be manned and vehicles be labeled to indicate the
appropriate fuel(s) in order to prevent misfueling. Commenter proposes that if a vehicle is
approved for up to El 5, the customer should have to obtain a sticker that is placed on the inside
of the fuel door that tells the attendant the vehicle is approved for El 5. The customer would have
to provide proof that the vehicle is approved for E15 to obtain the sticker and the attendant
manning the pump must see it to pump anything over E10. This would be necessary because
most people do not know what model year their car is and it will help keep El 5 out of boats and
other non-approved uses. Certainly, EPA could require such a label for newly manufactured cars
and trucks. Flex fuel vehicles already are appropriately labeled and would not require any further
Page 56 of 126
-------
labeling. Commenter adds that another possibility would be an electronic interface that would
not allow the pump to dispense higher ethanol blends unless an electronic chip was in the
proximity. This chip could only be obtained by the vehicle owner upon proving that the vehicle
was one that was included in the permissible fleet.
Response:
See Preamble section III.F. 1 for our response to comments concerning the general need
for more misfueling mitigation measures and urging the adoption of several particular
measures (i.e., handwarmers, keypad confirmation, RFID, and physical impediments to
misfueling such as different nozzle sizes). A number of other specific suggestions were
made, which we respond to here.
Use of full service attendants at service stations to ensure that El 5 is only used in
appropriate vehicles would be a large burden on service stations since most stations are
now "self-service" where customers dispense the fuel they buy. API estimates the
average annual cost per service station for full service attendants at $67,500 and the
annual nationwide cost at $10.6 billion.1 Separate islands at service stations for E15 and
higher ethanol blends, as API noted, would 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, and that cost does not include the consumer
implications of separate islands.2 In light of the uncertainties about when and how E15
will enter the market, the costs of these measures and the likely burdens they would
impose on small businesses and consumers, we do not believe that either of these
measures is necessary or appropriate to mitigate misfueling at this time.
We also conclude that requiring consumers to obtain El 5 stickers for their vehicles that
can use El5, as suggested by Mercury Marine, would be impractical. For reasons similar
to those discussed in the Preamble in response to suggestions that consumers be required
install RFIDs to prevent misfueling, it is questionable whether EPA can reasonably
expect or require consumers to take the steps needed to acquire and affix the appropriate
sticker for their vehicles. We estimate that there are over 150 million MY2001 and newer
passenger vehicles on the road today, so the task of labeling those vehicles would likely
involve a very large number of households and businesses. The suggestion for El 5
stickers also relies on pump attendants checking the stickers before allowing a vehicle to
be fueled with E15. However, using pump attendants for this purpose would entail costs
similar in nature and potentially in extent to those discussed above regarding full service
attendants, since it would require close attention to consumer refueling and/or pump
blocks to ensure that consumers did not misfuel. The commenter suggesting stickers also
urged that at least vehicle manufacturers be required to affix the El 5 sticker to their new
passenger vehicles. Although more feasible to implement, this narrower suggestion could
raise issues for manufacturers who recommend premium grades of gasoline for particular
1 American Petroleum Institute, Evaluation of Measures to Mitigate Misfueling of Mid- to High-Ethanol Blend
Fuels at Fuel Dispensing Facilities, p. 15.
2 American Petroleum Institute, Evaluation of Measures to Mitigate Misfueling of Mid- to High-Ethanol Blend
Fuels at Fuel Dispensing Facilities, p. 11.
Page 57 of 126
-------
models, since it is not known today whether El 5 will be sold as a premium grade. We
believe labeling E15 pumps is a far more efficient and practical way of alerting
consumers to the need to avoid misfueling with El 5. As noted above, we will monitor the
effectiveness of pump labeling and the other misfueling mitigation measures
implemented under today's rule and the partial waivers, and if it appears that additional
measures may be needed, we will consider the various suggestions that have been made
by commenters in this rulemaking.
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, pp. 2-3
Comment: As an additional misfueling strategy, EPA should consider requiring the
establishment of a minimum number of E85 fueling outlets in nonattainment areas to discourage
sub-optimal fueling of these flexible-fuel vehicles (FFVs) on conventional gasoline. This would
reduce NOx, HC and CO emissions on a fleet-wide basis, particularly since major U.S. auto
manufacturers have indicated that at least 50% of their new car production beginning with
MY2012 will be FFVs.
Response:
Requiring additional E85 fueling outlets is outside the scope of this rulemaking, the
purpose of which is to mitigate misfueling with El 5 by vehicles, engines and equipment
not covered by the El5 partial waivers.
What Commenters Said:
Organizations: Association of International Automobile Manufacturers (AIAM); Historic
Vehicles Association (HVA)
Document Numbers: EPA-HQ-OAR-2010-0448-0079, p. 10; EPA-HQ-OAR-2010-0448-0076,
p. 2
Comment: EPA should convene a stakeholder meeting and/or working group to discuss what
additional components are needed for a comprehensive misfueling mitigation program. Through
this group, EPA could create a more constructive and widely accepted approach to increased
ethanol blend levels as well as implementation of more effective and appropriate consumer
notification methods.
Response:
See Preamble section III.F.l for our response to comments recommending additional
mitigation measures. As explained there, EPA plans to work with stakeholders going
forward to monitor the introduction of El 5 into commerce and the effectiveness of the
mitigation measures under today's rule and the partial waivers. We also anticipate that
public outreach will be developed and implemented by a stakeholder group led by
industry and assisted by EPA. We expect that stakeholder meetings and working groups
are likely to be useful for both of these related efforts.
What Commenters Said:
Organization: Outdoor Power Equipment Institute (OPEI)
Page 58 of 126
-------
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 10-14
Comment: EPA needs to develop an administrative record in this rulemaking that would
indicate its proposed label and related measures could ultimately overcome price incentives and
prevent substantial misfueling resulting in prohibited emission-related failures. To develop the
required administrative record, EPA should thoroughly evaluate each of the 18 potential
mitigation measures to reduce the rate of misfueling that have been identified in the
comprehensive report entitled "Evaluation of Measures to Mitigate Misfueling of Mid-to-High-
Ethanol Blend Fuels at Fuel Dispensing Facilities." EPA needs to quantify the total costs,
impacts, effectiveness, or feasibility of the potential misfueling controls and the rates and
consequences of misfueling. To determine the economic impacts of each misfueling control,
EPA should apply a particular misfueling rate to the affected universe of the 400 million
products (owned by businesses and consumers) that could be harmed. As part of this analysis,
EPA should consider the resulting impacts on small businesses and should also assess the fuel
quality of the blends being dispersed from blender pumps to determine their suitability, safety,
and compliance with applicable ASTM specifications. Commenter provides additional
discussion and refers to the costs cited in the proposed rule as well as the fact that there are no
data to establish the frequency of costly repairs or other complications (particularly with regard
to nonroad equipment).
The adverse impacts to consumers from misfueling will exceed the costs of implementing even
very expensive controls. A public report by EPA asserting that certain misfueling controls could
effectively and dramatically reduce the costs and damages associated with the very high rate of
misfueling in the absence of such controls would provide a strong rationale for public policy
officials (in the White House and on Capitol Hill) to make tax credits or other well-supported
incentives available to help pay for these effective controls. There should be a dialogue between
EPA, DOE, and affected stakeholders on whether any of these funds (or future funds) could be
applied to installing effective and robust misfueling controls like electronic key pads or
automatic blocks.
Response:
As this comment notes, there are no currently available data on which to base estimates
for the frequency of repairs in the event that misfueling occurs and results in damage to
vehicles or engines not covered by the El 5 partial waivers. There are no data because
El5 has yet to enter the market and the misfueling mitigation measures required under
today's rule and the partial waivers have yet to be put in place. There is thus no basis for
determining misfueling rates and consequences and to what extent they could be reduced
by each of the 18 potential control measures for which the commenter seeks a thorough
cost-benefit analysis.
As explained in Preamble section III.F.l, we believe the required misfueling mitigation
program will provide strong incentives to avoid misfueling so that instances of
misfueling, and the need for repairs that might result, will be minimized. We also plan to
work with stakeholders to monitor the introduction of El 5 into the market and the
effectiveness of the required misfueling mitigation program. Once E15 enters the market
and experience with mitigation measures is gained, we expect data relevant to assessing
the need for and the costs and benefits of possible additional measures will become
available. Until that time, however, the kind of administrative record that the commenter
Page 59 of 126
-------
seeks is not possible to assemble and thus cannot guide EPA's decision-making for
today's rule.
In Preamble section IV.A, we explain that while we are not in a position to quantify the
degree to which misfueling will be avoided as a result of today's rule, we recognize that
avoiding even a trivial degree of misfueling (i.e., less than 0.1% of the vehicle fleet older
than MY2001) would produce benefits in avoided repair costs that significantly outweigh
the relatively limited costs imposed by this rule. Without the mitigation measures in
today's rule and the partial waivers, we believe that emissions-related complications of
misfueling would have occurred with enough frequency that the benefits of today's rule
will clearly outweigh the relatively low costs.
1.5.2 Comparisons to the Ultra-low Sulfur Diesel (ULSD) Program
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 12-13
Comment: Ultra-low sulfur diesel (ULSD) replaced low-sulfur diesel (LSD) whereas El5 will
not replace E10 or neat gasoline. EO, E10, and E15 will coexist in the marketplace for an
indefinite period increasing the likelihood of misfueling. The risk profile of the ULSD phase-in
is completely different from that of the El 5 addition. The harm associated with the ULSD phase-
in involved new vehicles misfueling with LSD — the fuel that was being phased out. Therefore,
the risk associated with misfueling a new vehicle with LSD decreased with time as LSD left the
marketplace to be replaced by ULSD. However, the risks associated with El5 INCREASE over
time. If it is assumed that EPA eventually allows E15 to be used in MY2001 and newer vehicles,
the risk of a consumer misfueling his/her MY2000 and older vehicle with El 5 is lower in the
short term as ElS's market penetration begins. As time goes on and increasing amounts of E15
presumably enter the marketplace, the risk that a consumer with an MY2000 or older vehicle
misfuels with El 5 increases. Granted, vehicle turnover will decrease the number of MY2000 and
older vehicles in the U.S. vehicle fleet; however, the rate of vehicle turnover is decreasing as
vehicle quality and durability have improved and will take decades to complete. A key difference
in the ULSD transition was the opportunity for vehicle manufacturers to educate new diesel
vehicle consumers at the time of purchase about the risks of misfueling. This information was
reinforced in the owner's manual and on the vehicles themselves. For El 5, there is no similar
opportunity for consumer education, and the proposed dispenser labels will contradict
preexisting information in owners' manuals which generally require usage of gasoline/ethanol
blends with no more than 10% ethanol.
Response:
See Preamble section III.F. 1 for our response to comments related to the transition to
ULSD.
1.5.3 Comparison to the Unleaded Gasoline Program
What Commenters Said:
Page 60 of 126
-------
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 8
Comment: An El 5 pump label alone is not a sufficient safeguard against consumer misfueling.
Although EPA is contemplating some upstream requirements, such as PTDs and a national
survey, these will not serve a meaningful function in preventing misfueling or properly educating
the consumer about appropriate, compatible, and legal fuels for their equipment. During the
transition from leaded to unleaded fuels, the Agency implemented a number of actions to prevent
misfueling including: 1) a warning label; 2) physical barriers, such as restricted fuel nozzle
diameters; and 3) a requirement that compatible fuels be made available at certain fueling
stations. Despite these efforts, misfueling rates of about 12 percent persisted for almost a decade.
EPA has selected the least costly and least effective safeguard in its current proposal: labeling.
EPA should reissue the proposal to the docket with additional misfueling controls for public
review and comment.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 2
Comment: In earlier experiences, new vehicles were labeled with information about the
appropriate fuel such as "unleaded fuel only" and older vehicles and engines would not be
harmed or create additional pollution by using the newer fuel formulations. However, in this
case, newer vehicles do not include such labeling. In addition, older vehicles and engines may be
damaged and air pollution emissions may increase due to use of El 5. Because of these critical
differences, EPA should implement additional measures to mitigate and prevent misfueling.
Response:
See Preamble section III.F.l for our response to comments related to the transition to
unleaded gasoline.
1.5.4 EO/E10 Availability and Petition to Require
-------
Comment: EPA's original unleaded fuel controls in 1974 included three essential components: a
warning label, robust misfueling controls, and the required availability of unleaded fuels at large
gasoline stations. EPA needs to develop a comprehensive misfueling regulation that includes all
three of these essential components in order to ensure the availability of E10 and prevent damage
and increased emissions from nonroad products. Off-highway fuel use is a very small percentage
of the total fuel delivered by any given fueling station. As older vehicles are replaced, there may
be reduced E10 fuel demand for vehicles. The incentive for fueling stations to maintain a
separate tank and pump for off-highway equipment is minimal and most likely would result in
higher unit fuel costs, providing an additional disincentive for consumers to locate and utilize a
special off-highway fuel. There is also a strong potential that the reduced volume of E10 fuel
required in the marketplace would result in elimination of supply, further eroding the availability
of special off-road fuel.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 10-11
Comment: EPA's approval of El 5 removes the incentive for fuel stations to maintain a separate
tank and pump for nonroad vehicles and equipment, since doing so would result in higher fuel
costs for the fuel station and reduce its operating margin. Additionally, as RFS is implemented
over time, gasoline with blends of 10% or less ethanol will become increasingly less available.
Either way, as has occurred with E10, which now saturates 90% of the gasoline supply, fuel for
nonroad engines and equipment will become a specialty fuel at best, raising its cost, discouraging
consumers from buying it, and therefore exacerbating the risk of misfueling. The scarcity of
compatible fuels will eventually force consumers to misfuel, a major policy problem with EPA's
current approach. Commenter asserts that EPA should utilize its clear authority to require
continued availability of compatible fuels for marine engines and other products which are not
approved for El 5 or other mid-level ethanol blends.
Organizations: Alliance of Automobile Manufacturers (Alliance); Mercury Marine
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 13; EPA-HQ-OAR-2010-0448-0057,
p. 2
Comment: EPA should ensure the availability of both EO and E10 fuel. While modern vehicles
are capable of using E10, marine engines, nonroad engines, and old/antique vehicles still require
EO fuel, as do many other products. EPA should find a way to encourage the continued
availability of EO in the market.
Organization: Association of International Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0079, pp. 7, 10
Comment: In order to prevent misfueling out of necessity, EPA needs to ensure the continued
availability of EO/E10 fuels. It would be within the EPA's scope of authority to issue regulations
requiring gas stations to continue to dedicate pumps to E10 and lower ethanol fuel. Commenter
cites to case law (Amoco v. EPA; 1974) to support their assertion.
Organization: Boat Owners Association of the U.S.
Document Number: EPA-HQ-OAR-2010-0448-0078, pp. 1-2
Comment: Given the speed with which E10 has infiltrated the market recently, commenter is
concerned that boaters may not be able to find EO-E10 fuel after E15 is introduced into the
market. Some boaters now actively seek out EO after having problems with E10. In many areas,
EO is difficult to find and this situation has been exacerbated by particular states requiring
Page 62 of 126
-------
ethanol content greater than 10%. If El 5 achieves similar market dominance, many boaters' only
legal and practical fuel source will not be readily available. Faced with no other options, even the
educated consumer could be forced to misfuel. EPA must address the question of how the
government will ensure that millions of owners of boats, outdoor power equipment, and other
nonroad engines that are not able to use El 5 (for a variety of reasons), will have adequate and
readily available fuel sources at the local level. EO must remain an available option for those
consumers who seek it out.
Organization: ECHO, Inc.
Document Number: EPA-HQ-OAR-2010-0448-0033, p. 5
Comment: Commenter notes generally that EPA must require fueling stations to also carry E10
if they sell El 5.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 10
Comment: EPA is correct to assume that a new and different gasoline blending stock will be
necessary for E15 gasoline as compared to E10 and lower gasoline (both the RVP and the T50
distillation temperature are influenced by increasing ethanol content). Unfortunately, this will
require refineries to create and ship separate blending stock for EO-E10 and El 5 blends. The
need for terminals to establish separate tanks for storing E10 and E15 blend stock gasoline will
lead to additional costs that will then reduce the potential that refineries, terminals, and retailers
will maintain both blends. There is a possibility that the EO-E10 blend stock would disappear
from the market. EMA claimed that EPA has indicated that it does not have the authority to
require retailers to continue providing E10 and lower fuels once El 5 is introduced in the
marketplace. However, without such a requirement, it is impossible to prevent or control
misfueling and undermines EPA's authority to grant a partial waiver for El 5. Commenter
provides additional discussion and concludes that the same economic forces that have displaced
EO with E10 will result in E10 being displaced by E15 absent the necessary regulatory controls
needed to ensure the existence of correct fueling options.
Response:
See Preamble section III.F.2.d for our response to comments urging EPA to require
EO/E10 availability and a rulemaking petition seeking the same.
Several clarifications are useful to make here. As noted previously, in the RFS2 NPRM
(see 74 FR 25017 (May 26, 2009)), EPA mentioned that a possible fuel configuration at
the pump would be an El5 regular grade gasoline and an E10 or EO premium grade
gasoline. Although EPA suggested this possible fuel configuration, many other potential
configurations may be possible. Ultimately, businesses will determine which blendstocks
to produce, the amount of ethanol to be added, and the way to configure retail station
tanks to market El 5 based on what makes the most sense according to their business
plans and consistent with national, state, and local fuel requirements. In light of the many
decisions that businesses still need to make about whether and how to produce and
market El5, we believe that it is premature to draw any conclusions about how El5 may
be priced compared to E10.
Page 63 of 126
-------
EPA clearly has the authority to require that certain fuels be made available under
appropriate circumstances. As explained in section III.F.2.d of the Preamble, section
21 l(c) of the Clean Air Act authorizes EPA to control or prohibit fuels and fuel additives
that cause or contribute to air pollution that may endanger public health or welfare or
significantly impair emission control devices or systems. Those controls may include,
where justified, requiring the availability of particular fuels needed to ensure the
continued effectiveness of emissions control systems. EPA has previously established
requirements under section 21 l(c) to ensure the availability of unleaded gasoline and
USLD to protect advanced emission controls in new vehicles and engines. The Agency
has not, however, prescribed the price of fuels or dictated which fuels may be marketed
as which grade (regular, mid-grade or premium). Various business considerations are
involved in deciding how to make and market different grades of fuel, and businesses
take various government requirements (including EPA's) into account in making those
decisions. In the case of E15, fuel providers that decide to make or sell E15 are subject to
the misfueling prohibition, and that prohibition may be relevant in deciding among some
marketing strategies.
As discussed in the Preamble and later in this document, the CAA contains a narrow
preemption of state fuel requirements that can be overcome in some circumstances. Also,
under the supremacy clause of the U.S. Constitution, state laws may not actually conflict
with federal laws, including regulations. Whether any particular state fuel regulation is
preempted by or in conflict with EPA fuel requirements, including those related to El 5,
requires a careful case-by-case review. EPA is not making any judgments about current
state regulations potentially affecting E15 as part of this rulemaking,
1.5.4.2 Petition for Rulemaking to Require
-------
unable to accommodate El 5 without investing in new infrastructure. Third, there will still be a
substantial quantity of MY2000 and older motor vehicles and nonroad products that are
prohibited from refueling with gasoline-ethanol blends containing greater than 10 vol% ethanol
and so in need of
-------
by EPA to modify the RFG Complex Model to handle El5 and notes that it is reasonable,
simple, and expedient. Commenter agrees with EPA's conservative approach based upon the
very limited test data available on the exhaust emissions impacts associated with the use of E10+
fuels in 1990 model year vehicles — the baseline vehicle technology underlying the Complex
Model.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 19
Comment: EPA's complex emissions model is used to evaluate whether a fuel meets the
reformulated gasoline (RFG) standards and currently may be used only for fuels containing up to
4.0% oxygen by weight; E15 contains approximately 5.25% oxygen by weight. Growth Energy
supports EPA's proposal to amend 40 CFR 80.45, to allow refiners and importers to use the
Complex Model to certify gasoline containing El5, and believes the data and rationale behind
the proposed amendment are sound.
1.6.2 VOC Emissions from Permeation in the Complex Model
What Commenters Said:
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, p. A3
Comment: Even if one accepts the premise that exhaust VOC emissions are unlikely to increase
with El 5, EPA's underlying analysis does not address evaporative VOC emissions. Section
21 l(k)(9) of the CAA requires EPA to consider emissions from the entire vehicle, not just
exhaust emissions. Evaporative VOCs generally respond to RVP in the Complex Model.
However, since the model was developed using relatively short term evaporative testing using
techniques based on emissions certification testing, the Complex Model does not fully account
for permeation, the migration of fuel constituents through the walls of plastic and rubber
components. Since the development of the Complex Model, it has become known that ethanol
dramatically increases the rate of permeation through the components of automotive fuel
systems. EPA must conduct permeation testing on relevant fuel system materials to determine
how permeation rates vary with ethanol content and then modify the Complex Model to reflect
the change in permeation related evaporative emissions from the 0% ethanol baseline.
Response:
As discussed in Preamble section III.G.l.a, the referenced study did not address
evaporative emissions due to permeation. However, evaporative permeation was not
tested during development of the Complex Model. Thus, the model never reflected
permeation emissions for any level of ethanol (EO, E10, E15 or any values in between).
Recent data from CRC show that although permeation emissions increase with higher
levels of ethanol, the effects of E15 are likely to be comparable to E10.3 Since the
permeation rates of E15 are comparable to those of E10, it would be inappropriate to
modify the model to account for El5 permeation emissions and not for E10. Major
changes to the Complex Model such as would be needed to reflect permeation emissions
3 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 66 of 126
-------
for different levels of ethanol are beyond the scope of this rulemaking. Since evaporative
permeation from E15 is comparable to that from E10, we believe today's regulatory
change to treat El 5 like E10 under the Complex Model is appropriate.
1.6.3 NOx and Toxic Emissions in the Complex Model
What Commenters Said:
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, pp. 2, A2-A3
Comment: With respect to EPA's proposed modifications to the Complex Model, EPA appears
to be relying on selected data that supports its conclusion that El5 causes no emissions increases,
while ignoring other data from the same test program that supports a contrary conclusion.
Specifically, in the absence of a fleet of 1990 technology vehicles in certification condition for
testing on El5, EPA relies on testing conducted at its National Vehicle and Fuel Research
Laboratory in the early 1990s. From this work, EPA now concludes that increasing gasoline
ethanol content above the current valid limit of the Complex Model will not increase exhaust
VOC emissions. If EPA believes that this study constitutes sufficient evidence to modify the
Complex Model, then EPA must also modify the model to account for the substantial NOx
increases measured during the study. Similarly, EPA should also reinstitute the requirement that
RFG be certified for NOx performance using the (now altered) Complex Model. Motor vehicle
technology and the fuels they use have changed greatly in the nearly 20 years since the Complex
Model was developed and as such, EPA should take a fresh look at this critically important tool.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 11-12
Comment: EPA proposes that only the RFG VOC equations should be changed and sees no
need to modify the toxics equations for small refiners because they are not currently producing
RFG and typically certify CG as EO with oxygenate blended downstream (75 FR 68062,
November 4, 2010). EPA inappropriately dismisses the opportunity for small refineries, not
subject to MSAT2 in 2011-2014, to claim the oxygen dilution from blending conventional
gasoline/E15 on batch reports if they have terminal oversight. This potential activity is allowed
in current regulations at 40 CFR 80.101. EPA should revise the Complex Model for antidumping
toxics to account for E15. E15 will have a different anti-dumping toxics value than EO-E10 and it
is not relevant whether or not small refineries are doing downstream oversight today for oxygen
blending; the Agency cannot preclude this potential activity in the future. EPA may revise the
ozone NAAQS to make it more stringent and some states with ozone nonattainment areas may
choose RFG. The effective dates for RFG may be prior to January 1, 2015, when the small
refinery relief from MSAT2 expires. Small refineries may want to produce RFG with 15 vol%
ethanol or RBOB for terminal blending with 15 vol% ethanol prior to January 1, 2015, and will
need a revised toxics model. EPA should issue a supplemental proposal with revised toxics
equations and should not finalize this misfueling mitigation proposal until after it considers
comments on its revised toxics equations proposal.
Organization: Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0088, p. 4
Comment: Commenter strongly supports modification of the Complex Model to accommodate
higher levels of oxygen for predicting gasoline emissions. The RFG markets are a significant
Page 67 of 126
-------
portion of the overall gasoline market in the U.S. and thus must be able to offer additional levels
of ethanol blended gasoline. E15 fuel blends support the goals of the RFG program to improve
the air quality. Additional levels of ethanol in RFG support the reduction of aromatics, olefins,
sulfur, and benzene. However, commenter expresses concern that EPA's proposed changes do
not fully recognize the toxic displacement and hydrocarbon reductions associated with the use of
E15.
Response:
The issues raised by these commenters are discussed in Preamble Section III.G.l.b and
are summarized below.
Regarding the comment concerning the Complex Model and NOx emissions, the NOx
performance requirements for RFG and conventional gasoline (CG) have not been
applicable to most refiners since January 1, 2007, when the Tier 2 gasoline average sulfur
standard of 30 ppm took effect (see 40 CFR section 80.41(e)(2)(i) for RFG; and section
80.101(c)(3)(i)) for CG). This is the case for all refiners as of January 1, 2011 (see
sections 80.41(e)(2)(ii), 80.101(c)(3)(ii)). The applicability of the Complex Model to
gasoline certification has thus become limited as EPA's more recent clean gasoline
standards take effect and require even greater emission reductions than those required by
the RFG and antidumping programs. As a result, there is no current NOx performance
standard for RFG or conventional gasoline under the RFG or antidumping regulations,
and the Complex Model is no longer used for modeling NOx performance. Therefore,
there would be no point to modifying the Complex Model regulations to account for
additional NOx emissions that may be associated with E15.
In the case of air toxics, we stated in the NPRM that we would not need to modify the
Complex Model because beginning January 1, 2011, the air toxics emission standards no
longer apply for gasoline subject to the new mobile source air toxic (MSAT2) nationwide
benzene standard for gasoline (see 40 CFR § 80.41(e)(3) for RFG and § 80.101(c)(4) for
CG). We noted, though, that small refiners can take advantage of the option for delayed
compliance with the MSAT2 benzene standard until January 1, 2015. We stated that
since small refiners typically certify CG as EO, with oxygenate blended downstream, their
compliance with the toxics performance standard should be unaffected by the increase in
ethanol content from El0 to El 5. In addition, no small refiners currently produce RFG.
EPA is undertaking a separate rulemaking to establish motor vehicle and fuel control
measures in response to the May 21, 2010, Presidential Memorandum Regarding Fuel
Efficiency Standards. As part of that rulemaking, EPA is considering whether to revise
RVP standards to further reduce emissions that contribute to ozone pollution. Depending
on the extent to which EPA revises RVP standards, qualifying states may be less likely to
seek to opt in to the RFG program to meet their air quality needs. However, it is possible
some areas may decide to opt in to the RFG program to meet their air quality needs Since
EPA would go through a separate rulemaking to approve a state request to opt in to the
RFG program, the Agency will consider revising the Complex Model for purposes of the
toxics performance standards at that time if appropriate. Thus, EPA is not revising the
Complex Model for purposes of the toxics performance standard or revised ozone
NAAQS at this time.
Page 68 of 126
-------
With respect to revising the complex model for antidumping toxics to account for El 5, it
would be a major undertaking to make the relevant change to the Complex Model, as we
stated in the NPRM. EPA continues to believe that such an undertaking is unnecessary
and unwarranted in light of current and expected practices by small refiners. Furthermore,
even if we were to make the suggested change, any possibility of relevance would
disappear effective January 1, 2015. In light of these considerations, EPA has not
modified its Complex Model regulations to account for air toxics emissions related to
E15.
1.6.4 Justification for Modification of the Complex Model
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 18-19
Comment: EPA should follow the same evaluation approach it has advocated for examining
ethanol effects in the past: study a 19 vehicle fleet, where different vehicle manufacturers,
models and vehicle types (LDVs, LDTs, and MDPVs) are represented on a sales-weighted basis,
as a minimum for evaluating a fuel's impact on vehicle emissions. In addition, EPA must develop
an understanding of the effects of the interaction of increased fuel ethanol with other fuel
parameters, which can only be done with different (and currently legal) base gasolines. To make
the emission adjustment in the Complex Model, EPA is relying on a study conducted in 1994 by
Guerrieri, et al., which examined the exhaust emissions from 1990 vehicles using gasoline with
ethanol levels varying from 0 to 40 vol%. This study evaluated the test fuel's impact on
emissions from five MY1990 vehicles and one MY1992 vehicle; no replicates were included.
The five vehicles with 1990 vehicle technology represent only two manufacturers and include
only passenger cars. Although many ethanol blends were examined, they were formulated with
only one base gasoline, without adjusting for differences in any fuel properties. Also, the study
used a base gasoline that could not legally be sold today, which precludes examination of the
impacts of varying distillation parameters, sulfur levels, and volatilities (or even the impacts of
gasoline that would otherwise have met current EPA or CARB requirements). Also, the paper
pools the data from the various test vehicles, which prevents any analysis for outliers,
manufacturer trends, and other important information. In short, while the data in the Guerrieri
study are interesting, they do not provide statistically meaningful or defensible results.
Response:
With respect to the gasoline used in the Guerrieri/Caffrey study, we point out that the
gasoline used for the study to develop the Complex Model was also different than today's.
In fact, the gasolines used for both the original Complex Model study and the
Guerrieri/Caffrey study were the same, providing some level of consistency between
them. Both were designed to reflect the statutory baseline fuel for these standards: 1990
fuel, not today's fuel. While only two manufacturers and only passenger cars were
represented in the analysis, and notwithstanding the other limitations of this study, the
Guerrieri/Caffrey study provides the best information available and allows EPA to
estimate with reasonable confidence what would be the likely effect on exhaust emissions
of blends of E15 in RFG as represented by the Complex Model. As stated in the preamble
of the NPRM, the outcome of that study was consistent with our engineering judgment.
Page 69 of 126
-------
That is, 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.
Preamble section III.G.l.c addresses these concerns in further detail.
1.6.5 Representation of Other Renewable Fuels in the Complex Model
What Commenters Said:
Organizations: Biotechnology Industry Organization (BIO), et al.; Butamax Advanced Biofuels,
LLC and Gevo, Inc. (Butamax and Gevo)
Document Numbers: EPA-HQ-OAR-2010-0448-0091, pp. 1-2; EPA-HQ-OAR-2010-0448-
0084, pp. 1-3
Comment: Commenters support the proposed revisions to the Complex Model but recommend
that EPA expand it to all gasoline blends containing greater than 3.7% up to 5.8% oxygen by
weight that have been approved by EPA. This would allow other renewable oxygenates such as
isobutanol and pentanol to be blended in compliance with the rule. Isobutanol contains less
oxygen by weight than ethanol, but at blends above 12.5 vol% will still exceed 2.7% oxygen by
weight, EPA's oxygen content limit for gasoline to be considered "substantially similar." At 16.1
vol% isobutanol, the resulting gasoline would have an oxygen content of approximately 3.7% by
weight, equivalent to E10 and well below the oxygen content of El 5. Given the vast potential for
advanced biofuels, such as isobutanol, to enter the marketplace in the next several years, this
proactive regulatory change would remove one of many existing barriers to widespread
distribution and use of advanced biofuels. Like ethanol, the use of isobutanol in gasoline results
in lower CO and NOx emissions as oxygen content increases. Butamax and Gevo provide
significant additional discussion on this issue, citing to a recent study by Argonne National Labs
entitled "Impact of Ethanol and Butanol as Oxygenates on SIDI Engine Efficiency and
Emissions Using Steady-State and Transient Test Procedures" (September 2010) and provides
wording for a new paragraph at (c)(l)(iii)(C) that EPA should add to the regulatory text at 40
CFR Section 80.45.
Response:
We believe that this comment has merit, since the Complex Model treats the parameter of
oxygen independently of the oxygenate which supplies it. In other words, the model was
developed using fuel oxygen level as an input independent of which oxygenate
contributed the oxygen. In addition we believe that the increased use of any oxygenate in
the range of 4.0 to 5.8 wt% oxygen would have effects on VOC emissions that are similar
direct!onally to those of increased ethanol use in that range. Thus, we agree with the
commenters that it is not necessary to limit the higher levels of oxygen in fuel (i.e., above
4.0 wt% up to 5.8 wt%) only to ethanol for purposes of modifications to the Complex
Model regulations. We have therefore modified the regulations to allow the Complex
Model to be run for fuels containing oxygen levels up to 5.8 wt% from any oxygenate.
Preamble section III.G.l.d contains a more detailed discussion of this issue.
Page 70 of 126
-------
1.6.6 Updating Inventory Models
What Commenters Said:
Organization: National Association of Clean Air Agencies (NACAA); Pennsylvania
Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 3; EPA-HQ-OAR-2010-0448-0058,
pp. 4-5
Comment: In addition to updating the Complex Model, other models such as Nonroad 2008,
NMEVI2008 and MOVES should be updated to accommodate the addition of El 5 to the fuel
supply. EPA should also endeavor to determine what percentage of control systems for all types
of vehicles and engines will be damaged from misfueling with El 5 and quantify the impact on
emissions in the models. PA DEP noted that if EPA is not going to update these other models,
they should provide additional information on how emission inventories subject to these models
will be updated.
Response:
The models mentioned by PA DEP and NACAA are periodically updated and will be
revised to take into account effects of E15 as more data on emissions become available.
In today's rule, EPA is prohibiting the use of gasoline-ethanol blended fuels containing
greater than 10 vol% ethanol content in vehicles, engines, and equipment not covered by
the El 5 partial waivers and is taking several other steps to mitigate misfueling with El 5.
EPA believes that the final rule will help mitigate misfueling and thus help prevent
adverse emissions effects.
1.6.7 Modification of the VOC Adjustment for RFG in Chicago and Milwaukee
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 18-19
Comment: The RFG regulations reduce the VOC standard by 2.0% for "Adjusted VOC
gasoline" (i.e., gasoline that contains between 9 and 10 percent ethanol and is intended for use
only in specified RFG areas around Chicago and Milwaukee). However, as with EPA's
regulations implementing the one-pound RVP waiver of section 21 l(h), the Adjusted VOC
standard is expressly limited by rule to gasoline that contains "at least 9% and no more than
10%" ethanol. As written, the standard does not apply to E15, which would be subject to the
unadjusted VOC standard for RFG areas in Chicago and Milwaukee. This scenario would
present additional logistical and financial challenges (e.g., the creation and storage of a lower
RVP blendstock for splash-blending El5). Commenter provides additional discussion and notes
that the limitation of the adjusted VOC standard to E10 is not a statutory requirement and that
E15 presents no significantly different volatility concerns than E10.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 12
Comment: EPA should address the need to change the special provision for the Adjusted VOC
standard for Chicago and Milwaukee RFG. Commenter cites the language in Section 80.40(c)(l)
Page 71 of 126
-------
and notes that this section should be revised to extend the applicability of the concentration of
ethanol to at least 9% and no more than 15% (by volume) of the gasoline.
Response:
Preamble section III.G.l.e provides EPA's response to these comments.
2. Other Issues Addressed by Commenters
2.1 Cost of Compliance
2.1.1 Cost Estimates
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 8
Comment: With regard to EPA's cost estimates for pump labeling and PTDs, Growth Energy
believes that EPA's estimates appear reasonable.
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 3, 13-15
Comment: EPA's cost estimate excludes the costs associated with damage that may occur to
approved vehicles (as evidenced by CRC testing) as well as damage to non-approved vehicles
that misfuel in spite of the EPA proposed misfueling mitigation measures. EPA has also limited
its analysis in this rule to one medium — air — and from one source of emissions — the vehicle.
For example, EPA has not looked at potential increased emissions from Stage I and Stage II
vapor recovery equipment at the retail gasoline station and has not considered the potential
impacts to water and the associated costs of upgrading underground storage tank systems and the
dispensers that deliver the fuel to the vehicle. Based on the results of the Department of Energy's
National Renewable Energy Laboratory (NREL) report of November 12, 2010, there are
significant operational or material incompatibilities between legacy equipment and El5.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 8-9
Comment: Based on the record in the Waiver Decision, there is no evidence that use of E15 will
result in any repair costs if such fuel is used in any type of vehicle or engine. Commenter
supports the use of labels, PTDs and compliance surveys to ensure use of E15 in approved
vehicles, and believes the costs of doing so are reasonable to ensure legal compliance, but asserts
that there is no basis or need to justify such measures based on claimed avoided costs of repairs
from potential use of E15 in unapproved vehicles or engines.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 18
Comment: In addition to the costs of communicating with the significant number of past and
future customers about the El5 fuel change, automakers may also incur transaction costs and
other expenses due to claims of damage attributed to the fuel and/or misfueling (including claims
about vehicles not designed to run on El 5 in the first place). Resolving the technical issues of the
Page 72 of 126
-------
role of El 5 in a claim is not a simple or inexpensive matter. Resolution of claims and related
litigation, meritorious or not, as well as the adverse impact on customer perceptions, will
represent real costs to vehicle manufacturers. The costs of potential recalls must also be
considered. Liability and warranty issues will also extend to other equipment manufacturers, fuel
distributors, and retailers. While the degree to which such claims materializes, and in what time
frame, remains uncertain, it is incumbent upon EPA to consider these issues in its cost analysis.
Response:
Preamble section IV. A discusses why we have not included the specific costs mentioned
by these commenters. In brief, our cost estimates are for the misfueling mitigation
measures that we are adopting in today's rule. Many of the costs described by the
commenters are costs that may result from misfueling with El5, which the final rule is
designed to minimize. Other costs described by commenters are associated with the
potential impact El5 may have on media other than air, and the steps that may needed to
avoid that impact, such as addressing the compatibility of dispensing and storage
equipment with El5. As described in the Preamble, EPA recognizes that there a number
of additional steps that need to be taken for El 5 to be made available, and some of those
steps involve compliance with other federal, state and local environmental and safety
requirements. Since businesses are not required to sell El 5, it is up to businesses to
decide whether to sell El 5 and incur costs that may be associated with making El 5
available. EPA is considering the impact of E15 on transportation air emissions as part of
its analysis of RFS requirements and a rulemaking to establish motor vehicle and fuel
control measures in response to the May 21, 2010 Presidential Memorandum Regarding
Fuel Efficiency Standards.
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 8
Comment: Based on the number of samples proposed by EPA, the survey costs associated with
expedited sample transport and analysis would lead to approximately $1 million per year in
additional costs. Further, based on estimates obtained from potential survey vendors (assuming
ground shipping of samples and standard laboratory turnaround of 10-12 days), the survey
program would cost approximately $2.5 million.
Response:
We agree with the commenter that expedited shipping and analysis would increase the
costs of the survey program. As explained in Preamble section IV. A, in response to cost
and feasibility issues raised by commenters, we removed the requirement for expedited
shipping and recalculated the costs of the final rule accordingly.
2.2 The Applicability of the Statutory 1.0 psi RVP Waiver to E15
2.2.1 Support for No RVP Waiver (1.0 psi) for E15
What Commenters Said:
Page 73 of 126
-------
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 20-21
Comment: Commenter fully supports EPA's efforts to control Reid Vapor Pressure (RVP)
thresholds. EPA has appropriately proposed to prohibit the comingling of an E10 gasoline-
ethanol blend BOB with an El5 BOB. This control is needed to prevent violations of
summertime RVP requirements — unless the E10 blend has not taken advantage of the 1 psi RVP
waiver. Given these blending problems, EPA should evaluate and identify blender pumps that
are producing illegal fuels in terms of RVP and other characteristics and should take appropriate
enforcement action as necessary. Accordingly, fuel refiners will likely need to create a special
fuel or blendstock that has approximately 1 psi lower RVP than a typical fuel or blendstock
intended for El0.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 12
Comment: Commenter supports EPA's decision to deny the 1.0 psi waiver for El5 and agrees
that the CAA prohibits the extension of this waiver to E15. Commenter generally supports
nationwide, consistent RVP standards without the 1.0 psi waiver, as well as the requirement for a
national RVP survey in non-RFG areas. Prior to 2009, the recreational marine industry did not
have to comply with evaporative emission controls. Between 2009 and 2013, boat builders and
marine engine manufacturers will have collectively spent millions of dollars to achieve stringent
diurnal and permeation emission reductions. The technologies to achieve these standards are
based on a RVP of 9.0 psi for EPA and 7.0 psi for California. Commenter also notes that fuel
distributors, evaporative emission component manufacturers and the EPA all need to be able to
ensure and verify that the fuel that is being sold in the US meets the national RVP fuel standards
and that failure to control the vapor pressure of fuel at the consumer level could lead to in-use
non-compliance with evaporative emission standards.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 16
Comment: Commenter agrees with both the decision that the 1.0 psi RVP waiver should apply
only to E10 blends and that EPA should require RVP testing (including for E10) as part of the
national surveys. This will provide an additional quality and compliance check on the sampled
blends.
Organizations: American Lung Association (ALA); Mid-American Regional Council (MARC)
Air Quality Forum
Document Numbers: EPA-HQ-OAR-2010-0448-0097, p. 4; EPA-HQ-OAR-2010-0448-0075,
pp. 1-2
Comment: Commenters support EPA's proposal not to grant a 1.0 psi waiver for El 5 because of
the increased emissions associated with such a waiver (with one commenter (ALA) citing to
increased evaporative emissions as a concern). MARC notes that: 1) modeling completed by
Tom Austin of Sierra Research has shown with three different methodologies that if El 5 is
provided the RVP waiver, the increase in on-road NOx emissions is greater than the estimated
reduction in VOC emissions; and 2) a study completed by Oak Ridge National Laboratory shows
that a vehicle running on El5 requires 1.7 vol% more fuel than E10 and 5.2 vol% more than EO.
While it is not expected to harm the vehicle, use of El 5 will reduce fuel economy and as such,
Page 74 of 126
-------
issuing a 1.0 psi RVP waiver for El 5 will increase the negative impact of the fuel on local and
regional air quality.
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, pp. 2, A2
Comment: The increase in RVP that occurs when ethanol is blended with gasoline hydrocarbons
results in increased hydrocarbon emissions that pose significant air quality challenges for many
jurisdictions, including New York State. Beyond being illegal for El5, the 1.0 psi RVP waiver is
undesirable environmentally and is unnecessary. Summer reformulated gasoline is routinely
blended with ethanol, generally with an RVP of approximately 7 psi, well below the
conventional gasoline RVP limit of 9.0 psi.
Response:
As is explained in section IV.B of the Preamble and more fully discussed in Section 2.2.3
below, EPA believes that the statutory 1.0 psi RVP waiver provision is properly
interpreted as applying only to E10. Section IV.C of the Preamble addresses the comment
concerning the prohibition against comingling E10 and E15 BOBs. Sections III.C.2 and
IV.C of the Preamble discusses potential blendstock issues for El 5. As we note there,
during the summer ozone season, a blendstock 1 psi lower in RVP than the typical
blendstock intended for E10 (i.e., a blendstock that takes advantage of the statutory 1 psi
RVP waiver) would be needed for blending of El 5 in some parts of the country and not
others. In areas of the country subject to reformulated gasoline (RFG) requirements or do
not allow the use of a 1 psi waiver for E10 (e.g., if an approved SIP does not allow for the
use of the RVP waiver), the RVP of the blendstock used for E10 is likely to be
appropriate for E15, since E10 in those areas must have an RVP lower than 9.0 psi in
order to meet the reformulated gasoline VOC standard. It is also worth noting that
blendstock changes for meeting RVP standards would only be required during the
summer ozone season when RVP standards apply. During the rest the year, blendstocks
used for E10 could be appropriate for El 5 for RVP purposes.
Regarding the comment urging nationwide, consistent RVP standards without the 1 psi
waiver and enforcement of RVP requirements, EPA is considering further control of RVP
as it develops a separate rulemaking to address air pollution from motor vehicles and fuel
in response to the May 21, 2010 Presidential Memorandum Regarding Fuel Efficiency
Standards. EPA takes action when it finds gasoline blends out of compliance with RVP
regulations or any other applicable EPA regulations.
Preamble section III.D.l.a discusses the issue of RVP testing and surveys.
2.2.2 Opposition to Applying 1.0 psi Waiver Only to E10
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 17
Comment: The NPRM states that EPA does not have the authority to extend the 1.0 psi RVP
waiver to ethanol blends above 10%. Because of its significant impact on the gasoline supply and
Page 75 of 126
-------
distribution system, API encourages the agency to find a way to overcome this perceived lack of
authority and to permit the RVP waiver to be extended to El 5. If necessary, API encourages the
Agency to work with Congress in developing and enacting legislation to extend the waiver to
El5 blends.
Organization: American Coalition for Ethanol (ACE); Renewable Fuels Association (RFA)
Document Number: EPA-HQ-OAR-2010-0448-0087, p. 7; EPA-HQ-OAR-2010-0448-0088,
pp. 4-5
Comment: The 1.0 psi volatility tolerance should be extended to El5. According to the API
report "Determination of Potential Property Ranges of Mid-Level Ethanol Blends" (April 2010),
El5 fuel blends also support improvements to air quality with a reduction vapor pressure over
E10 fuel blends. Vapor pressure typically rises with the addition of ethanol to gasoline; however,
API's report suggests the maximum increase in vapor pressure occurs at 10 vol% ethanol. At
higher ethanol concentrations such as 15 vol%, vapor pressure of the fuel blend actually
decreases. Thus, EPA should extend the existing volatility tolerance for E10 to fuels containing
up to 5.8 wt% oxygen .
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 5, 16, 18
Comment: EPA should extend the 1.0 psi waiver for ethanol blends under Clean Air Act section
21 l(h)(4) to include all ethanol blends above 9% ethanol including El5. Imposing more
restrictive RVP requirements on E15 than E10 is technically and legally unsupported and creates
unnecessary challenges for manufacturers, blenders and others regarding introduction of El 5 into
the marketplace. EPA's current regulations limit applicability of the 1.0 psi RVP waiver to fuels
that contain at least 9 vol% and no more than 10 vol% ethanol by volume of the gasoline (e.g.,
40 CFR §§ 80.27(d)(2) and 80.28(g)(8)). These regulations were drafted when fuel containing
10% ethanol was the highest permissible ethanol content in gasoline and could be interpreted to
preclude applicability of the 1.0 psi waiver for fuels with ethanol content above 10%, such as
E15. However, this interpretation is inconsistent with the statutory language and legislative
history of the waiver, its purpose, and the fact that El 5 would have a nearly identical RVP to
E10 and not exceed applicable RVP limits where the waiver is applied. As part of this
rulemaking, EPA should amend its RVP regulations, in a manner consistent with statutory
language and legislative intent, to expressly allow El5 to be covered by the 1.0 psi waiver.
EPA's proposal to create a different RVP limit for E15 from E10, in addition to having no sound
technical basis, creates unnecessary implementation challenges. EPA's decision is contrary to the
agency's prior recognition that creating the need for a special blend stock for certain ethanol-
gasoline blends is cost "prohibitive" (e.g., 52 FR 31274, 31292). EPA's decision also creates
unnecessary hurdles to the use of El 5 such as EPA's proposed prohibition on comingling of E10
and E15 as well as E10 BOB and E15 BOB (see 75 FR 68059). Such prohibitions, without any
transition period as proposed by EPA, could cripple the introduction of El 5 into the marketplace.
Other requirements resulting from a more restrictive RVP limit for El5 (e.g., PTD and survey
requirements) should also be stricken as they create additional and unnecessary costs (and since
there is no evidence that E10 and El5 at the same RVP have any discernable difference in effect
on evaporative emissions). Eliminating the RVP restriction would obviate the need for separate
blendstocks for E10 and E15 as well as the need for prohibitions on blending E10 with E15 and
their respective blendstocks.
Organization: American Petroleum Institute (API)
Page 76 of 126
-------
Document Numbers: (EPA-HQ-OAR-2010-0448-0081) pp. 10-11
Comment: The Agency should provide for fungibility of E10 and E15 blendstocks provided that
ethanol is blended at the highest designated level of ethanol. This requires in summer periods
that finished products have the same RVP limitation and/or VOC performance level.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, p. 2
Comment: It does not make sense for Congress to allow a 1.0 psi waiver for E10 but not E15. If
regular octane conventional gasoline/El0 with the waiver is blended with premium octane
conventional gasoline/El5 without the waiver to produce a midgrade, then this conventional
gasoline midgrade would not qualify for the waiver. This would be very disruptive and would
have the practical impact of further balkanizing gasoline markets by creating a new boutique
fuel.
Response:
As explained in Preamble section IV.B and more fully discussed in section 2.2.3 below,
EPA believes that the statutory 1.0 psi RVP waiver provision is properly interpreted as
applying only to E10. EPA is aware of the API report cited in the comments and has
considered it in its analysis to the extent it applies. EPA recognizes that during the
summer ozone season, a blendstock that is 1 psi lower in RVP than the typical blendstock
intended for El 0 (i.e., a blendstock that takes advantage of the statutory 1 psi RVP
waiver) would have to be available for the blending of El 5 in some parts of the country,
as described in the previous.
We do not agree that it would be appropriate as a policy matter for a 1.0 psi RVP waiver
to be applied to E15. EPA conditioned the E15 partial waivers on, among other things,
El5 not exceeding 9.0 psi RVP in the summer months in order to ensure that El5 will not
cause or contribute to exceedances of evaporative emission standards by the MY2001 and
newer vehicles covered by the waivers. As we explained in the partial waiver decisions,
without that condition, E15 would not meet the test under CAA section 21 l(f)(4) for
granting fuel waivers. At the same time, we noted in the January 2011 partial waiver
decision that because El5 may not exceed 9.0 psi RVP in the summertime under the
partial waivers, its use would result in lower evaporative emissions than use of E10 that
takes advantage of the statutory 1.0 psi RVP waiver and consequently has an RVP of
10.0 psi in the summer months.4 EPA is currently considering further control of RVP as
it develops a separate rulemaking to address air pollution from motor vehicles and fuel in
response to the President's May 21, 2010 memorandum.
What Commenter Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 10-16
4 As explained in the partial waivers decisions, E10 received a section 211 (f)(4) fuel waiver by operation of law
prior to the amendment made by the Energy Independence and Security Act that authorizes fuel waivers only if EPA
determines that the section 21 l(f)(4) test is met.
Page 77 of 126
-------
Comment: The scientific evidence presented by Growth Energy in its waiver application, as
well as subsequent studies on which EPA relied for imposing the 9.0 psi limitation, make clear
that El 5 will not cause MY2007 and newer vehicles to violate their evaporative emissions
standards and that EPA should not impose on El 5 more stringent evaporative emissions
standards than those applicable to E10. Commenter asserts that EPA wrongly dismissed Growth
Energy's scientific evidence and conclusions regarding the effect of E15 on evaporative
emissions. EPA criticized Growth Energy for drawing conclusions about El5 by comparison to
the proven effects on evaporative emissions of E10 and E6, instead of providing test results
comparing El5 directly to EO (see 75 FR 68115). EPA also criticized Growth Energy's reliance
on two studies (the Stockholm Study and the CRC Report No. E065-3) and materials
compatibility studies to address potential durability questions associated with use of El 5 and the
impact on long term evaporative emissions. EPA's criticisms are misplaced. Section 21 l(f) of the
Clean Air Act does not require a waiver applicant to present evaporative emissions testing
directly comparing the waiver fuel with EO, as EPA seems to suggest. Rather, the statutory
standard is that an applicant must establish that the fuel or fuel additive, and the emission
products thereof, will not cause or contribute to a failure of any emission control device or
system to meet its certification emissions standards. EPA has repeatedly allowed waiver
applicants to meet this statutory burden without vehicle testing by presenting a "reasonable
theory" that predicts the emission effects of a fuel or fuel additive, supported only by a sufficient
amount of "confirmatory testing" to demonstrate the validity of the theory. Regarding
evaporative emissions specifically, EPA has granted section 21 l(f)(4) waivers without requiring
any testing for evaporative emissions, let alone testing specifically on "entire motor vehicles"
and has granted waivers where volatility has been found to be "no worse than those of
commercially available fuels." Commenter provides additional discussion on this issue, asserting
that the information in the waiver application provides sufficient information for EPA to grant
the El 5 waiver without a more restrictive RVP limitation.
EPA should interpret section 21 l(h)(4) of the CAA to include E15 as within the scope of the 1.0
psi waiver. Accordingly, EPA should eliminate the 9.0 RVP requirement imposed in the waiver
decision and amend its regulations governing the 1.0 psi waiver at 40 C.F.R. §§ 80.27(d)(2) and
80.28(g)(8). EPA's rationale for its decision on this issue relies heavily on the findings of the
Coordinating Research Council report (CRC E-77-2), "Enhanced Evaporative Emissions
Vehicles" (March 2010). EPA's analysis of the effect of E15 on evaporative emissions consists of
an evaluation of the five types of evaporative emissions considered in the certification process.
EPA concludes for four of the five categories that El 5 will not cause MY2007 and newer
vehicles to exceed their evaporative emissions standards; EPA's only basis for the RVP limit
regards the fifth type — diurnal evaporative emissions. Commenter provides significant
additional discussion on this issue, including a detailed chart that outlines for each of the five
evaporative emission types (hot soak, running loss, permeation, unintended leaks, and diurnal),
the potential issue with ethanol blends and EPA's conclusion regarding this evaporative emission
type. Commenter asserts that: 1) the CRC E-77-2 results do not provide a rational basis for
regulating E15 at 10.0 psi differently than E15 at 9.0 psi; and 2) the CRC E-77-2 results confirm
that El 5 will have the same effect on evaporative emissions as E10 at the same RVP and that
there is no basis to impose the more stringent 9.0 psi summertime RVP limit on El 5. For both of
these conclusions, commenter provides significant additional discussion regarding why EPA
cannot rely on the CRC study to make a decision on the 1.0 psi waiver.
Response:
Page 78 of 126
-------
We do not agree that the 9.0 psi RVP condition of the E15 partial waivers is unnecessary
or inappropriate. As we explained in the partial waiver decisions, for purposes of
determining whether a new fuel or fuel additive will cause or contribute to exceedances
of emission standards, the proper comparison is between the emissions impact of the new
fuel or fuel additive and the emissions impact of the fuel used in testing vehicles for
compliance with emissions standards (i.e., EO). It is also not within scope of this
rulemaking to reopen or revise the terms of the El 5 partial waivers. The purpose of
today's rule is to establish federal misfueling mitigation measures to further reduce the
potential for misfueling with El5 that is lawfully introduced into commerce under the
partial waivers.
2.2.3 Interpretation of CAA section 211(h)
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, pp. 17-18
Comment: The statutory language, legislative purpose, and legislative history support that the
1.0 psi waiver should apply to El5. Specifically, section 21 l(h) should be interpreted to include
E15 within the scope of the waiver. Congress based the waiver in part on EPA's 1987 rulemaking
that established national volatility limits for gasoline but allowed E10 to exceed the general RVP
limits by 1.0 psi (see 52 FR 31274, 31292). The 1987 rulemaking established a minimum ethanol
content to ensure that fuel containing only trace amounts of alcohol does not qualify for the
waiver and noted that "the maximum limit set by the [21 l(f)(4)] waiver would still apply" (52
FR 31305). The waiver in CAA Section 21 l(h)(4) applies to fuels that contain a minimum of
10% ethanol, with the maximum being set by any applicable 21 l(f)(4) fuel waiver. The "deemed
compliant" portion of the provision clarifies that it is the EPA's section 21 l(f)(4) waiver, not
section 21 l(h)(4) that imposes the maximum cap on the percentage of ethanol in the fuel.
Interpreting section 21 l(h)(4) as providing a minimum ethanol content requirement is not only
consistent with EPA's early rulemaking efforts; it also is consistent with the legislative intent and
history behind the RVP waiver. Commenter provides significant background discussion on the
1990 CAA Amendments and additional legal analysis/references regarding the waiver provision
and concludes that the 1.0 psi waiver was intended to apply to blends such as El5 that contain
"at least" 10% ethanol, but no more than any applicable 21 l(f)(4) waiver.
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 2-5
Comment: EPA has not generally interpreted the 1.0 psi waiver in CAA section 21 l(h)(4) to
apply solely to E10, and has acknowledged that "interpreting this provision to provide a one psi
allowance only if the blend contains exactly 10% ethanol would place a next to impossible
burden on ethanol blenders" (see 56 FR 24245). EPA has always determined that the Agency has
some discretion to interpret the literal meaning of Section 21 l(h)(4) in the context of "real
world" conditions and the overall intent of Congress in creating this exception. EPA is not
limited to extending a 1.0 psi waiver solely to gasoline-ethanol blends that precisely blend 10%
ethanol into gasoline, but rather may reasonably extend the 1.0 psi waiver to other low to
moderate gasoline-ethanol blends where there is no subversion of the statutory purpose of that
section. EPA could therefore reasonably interpret CAA section 21 l(h)(4) to extend to El5
Page 79 of 126
-------
blends. Commenter provides significant additional discussion and legal analysis on this issue,
particularly with regard to the cross-reference in Section 21 l(h)(4) to the waiver condition under
Section 21 l(f)(4) and asserts that: 1) Congress clearly intended that fuel distributors, blenders
and sellers would be considered in compliance with fuel regulations if the fuel distributed,
blended or sold was in compliance with a CAA section 21 l(f)(4) waiver (and other conditions of
CAA section 21 l(h)(4) were met)); 2) In a situation where a CAA section 21 l(f)(4) waiver has
been granted and the RVP of a fuel subject to the waiver and the RVP of E10 were effectively
the same, it would appear illogical for Congress to deem fuel distributors, blenders and sellers as
being in compliance, but to not extend this same compliance status to fuel; and 3) The deemed to
comply provision does not specifically mention 10% ethanol. The commenter also argued that
the fuel for which a CAA section 21 l(f)(4) waiver has been granted is legal to be delivered to the
consumer. Thus it appears that the main limitation on authority to extend a 1.0 psi waiver under
CAA section 21 l(h)(4) may be viewed as applying with reference to actions that would increase
RVP, rather representing a hard percentage limit on ethanol content. Commenter adds that with
respect to EPA's second request for comment on this issue - i.e., whether interpreting CAA
section 21 l(h)(4) in this fashion would have any impact on the Agency's E15 waiver decision —
their answer is firmly "no." Indeed, the statutory construction of these sections is directly
contrary to such an interpretation.
Response:
Evaporative emissions from motor vehicles and off-highway equipment are a major
source of volatile organic compounds (VOCs) that contribute to ozone. The amount of
evaporative emissions from a gasoline blend is closely related to its volatility, which
generally increases when ethanol is blended with gasoline. Reid Vapor Pressure (RVP) is
the most common measure of gasoline volatility under ambient conditions. In 1989, EPA
began reducing gasoline volatility by limiting its RVP. (40 C.F.R. §80.27)(1989). We
provided an interim RVP level that was 1.0 psi higher "for gasoline-ethanol blends
commonly known as gasohol." 54 FR 11868, 11879 (March 22, 1989). We explained that
"[s]uch blends must contain at least 9% ethanol (by volume) and their maximum ethanol
content may not exceed any applicable waiver conditions under section 21 l(f)(4)."5 54
FR 11879. We further explained that "to continue the non-regulation of gasohol RVP
once gasoline RVP was reduced would create an incentive to use high RVP gasoline for
blending with ethanol, effectively creating a loophole in the standard." 54 FR 11881. In
1990, we promulgated additional RVP regulations and "for blends of gasoline with about
10 percent ethanol, or gasohol, EPA continue[d] to provide a 1.0 psi RVP allowance so as
not require a special low-RVP blending gasoline." 55 FR 23658, 23660 (June 11, 1990).
Subsequently, in the 1990 CAA amendments, Congress largely codified our RVP
regulations by adding a new section 21 l(h). That provision established 9.0 psi as the
maximum RVP during the high ozone season (generally the summer months), with
authority for EPA to set a more stringent RVP level under certain circumstances. In
section 21 l(h)(4), Congress also established that the RVP limit for "fuel blends
containing gasoline and 10 percent denatured anhydrous ethanol" would be 1 psi higher
5At proposal, we had explained that "[i]n order to qualify for treatment as gasohol, fuel would have to contain at
least 9 percent ethanol [and that] the 9 percent ethanol is based on the 10 percent maximum ethanol content allowed
by the section 21 l(f) gasohol waiver." 52 FR 31274, 31305 n.22 (August 19, 1987).
Page 80 of 126
-------
than the RVP standard otherwise established in section 21 l(h). This provision is referred
to as the 1 psi waiver and specifically applies to gasoline-ethanol blends containing 10
percent ethanol.6 As part of section 21 l(h)(4), Congress also enacted a conditional
defense against liability for violations of the RVP level allowed under the 1 psi waiver by
stating that "[p]rovided, however, That a distributor, blender, marketer, reseller, carrier,
retailer, or wholesale purchaser-consumer shall be deemed to be in full compliance with
the provisions of this subsection and the regulations promulgated thereunder if it can
demonstrate that - (A) the gasoline portion of the blend complies with the Reid vapor
pressure limitations promulgated pursuant to this subsection; (B) the ethanol portion of
the blend does not exceed its waiver condition under subsection (f)(4) of this section; and
(C) no additional alcohol or other additive has been added to increase the Reid Vapor
Pressure of the ethanol portion of this blend." Section 21 l(h)(4). This is referred to as the
"deemed to comply" provision.
Subsequent to the 1990 amendments, EPA modified its RVP regulations to conform to
the new provisions. In that rulemaking EPA "did not propos[e] any change to the current
requirement that the blend contain between 9 and 10 per cent ethanol (by volume) to
obtain the one psi allowance." 56 FR 64704, 64708 (December 12, 1991). We explained
that "this is consistent with Congressional intent [because] the nature of the blending
process . . . further complicates a requirement that the ethanol portion of the blend be exactly
10 percent ethanol." 56 FR 24245. We also explained that the "deemed to be in full
compliance" provision was "a new defense against liability for violation of the ethanol
blend RVP requirement [and that] EPA believes that this statutorily mandated defense is
in addition to and does not supersede any of the defenses currently contained in the
regulations." 56 FR 64708. Additionally, EPA explained that this provision would allow
"a party to demonstrate the elements of the new defense by production of a certification
from the facility from which the gasoline is received [and that] this defense is limited to
ethanol blends which meet the minimum 9 percent requirement in the regulations and the
maximum 10 percent requirement." 56 FR 64708.
Further, in the Energy Policy Act of 2005 (EPAct 2005), Congress removed the
requirement that reformulated gasoline contain oxygenate additives, and mandated that
increasing volumes of renewable fuel be used in gasoline. In recognition of the expected
increase in ethanol use resulting from these provisions, Congress added section 21 l(h)(5)
to allow States to obtain an exclusion from the less stringent RVP limit under section
21 l(h)(4) upon demonstrating increased air pollution resulting from application of this
waiver. "Upon notification, accompanied by supporting documentation, from the
Governor of a State that the RVP limitation established by paragraph (4) will increase
emissions that contribute to air pollution in any area in the State, the Administrator shall,
by regulation, apply, in lieu of the RVP limitation established by paragraph (4), the RVP
limitation established by paragraph (1) to all fuel blends containing gasoline and 10
percent denatured anhydrous ethanol that are sold, offered for sale, dispensed, supplied,
offered for supply, transported , or introduced into commerce in the area during the high
ozone season" (emphasis added). Section 21 l(h)(5). Thus, when a State notifies EPA
6 The full text of section 21 l(h)(4) reads, "For fuel blends containing gasoline and 10 percent denatured anhydrous
ethanol, the Reid vapor pressure limitation under this subsection shall be one pound per square inch (psi) greater
than the applicable Reid vapor pressure limitations established under paragraph (1)." 42 USC § 7545(h)(4).
Page 81 of 126
-------
with the appropriate documentation that the RVP limit under section 21 l(h)(4) is causing
an air pollution problem, EPA is to apply the more stringent RVP limit under paragraph
(1) in lieu of the relaxed limit allowed under section 21 l(h)(4). Under section 21 l(h)(5)
the maximum RVP standard for blends containing gasoline and 10% ethanol would be
the same as for gasoline without ethanol.
The legislative history of the 1.0 psi waiver provision contained in section 21 l(h)(4)
shows that a 1 psi waiver is allowed "for fuel blends containing gasoline and 10 per
centum denatured anhydrous ethanol." Clean Air Act Amendments of 1990, S. 1630,
101st Cong. § 214 (1990), 101st Cong., 2d Sess. at 262 (April 3, 1990); reprinted at 3 A
Legislative History of the Clean Air Act Amendments of 1990 at 4380 (1993) (Leg.
Hist.). Section 21 l(h)(4) reflects the language adopted in section 214 of the Senate bill. A
companion bill in the House provided a 1 psi waiver for blends of gasoline and ethanol
"containing at least 10 percent ethanol." Clean Air Act Amendments, S. 1630, 101st
Cong. § 216 (1990) 101st Cong., 2d Sess. at 294 (May 23, 1990); reprinted at 2 Leg. Hist.
at 2102. The provision in the House bill was also designed to "permit gasoline containing
at least 9 but not more than 10 percentum ethanol (by volume) to exceed the applicable
Reid Vapor pressure requirements by up to 1.0 psi." Clean Air Act Amendments of 1989,
H.R. 3030, 101st Cong. § 214 (1989), 101st Cong., 1st Sess. at 170 (July 27, 1989);
reprinted at 2 Leg. Hist, at 3906 (1993).7 The purpose of the 1 psi waiver provision was
to facilitate the participation of ethanol in the transportation fuel industry while also
limiting gasoline volatility resulting from ethanol blending. "This provision was included
in recognition that gasoline and ethanol are mixed after the refining process has been
completed. It was recognized that to require ethanol to meet a nine pound RVP would
require the creation of a production and distribution network for subnine pound RVP
gasoline. The cost of producing and distributing this type of fuel would be prohibitive to
the petroleum industry and would likely result in the termination of the availability of
ethanol in the marketplace." S. Rep. No. 101-228, at 110 (1989)(Conf Rep.); reprinted at
5 Leg. Hist, at 8450 (1993). Also, Congress intended for this provision "to remove the
possibility that ethanol blends would be used to circumvent the [gasoline] volatility
restrictions.''/^
In 1987, prior to adoption of the 1990 Amendments, Congress considered a legislative
provision that was identical in relevant part to both section 214 of the Senate bill and
section 21 l(h)(4). The legislative history of this provision also shows that Congress
based the 1.0 psi waiver on technical data indicating that blending gasoline with 9-10%
ethanol by volume results in an approximate 1 psi RVP increase. "The certainty of
physical chemistry provides the assurance the addition of 10 percent ethanol to the base
gasoline will not exceed 1.0 psi RVP. ... [A]nd the Clean Air Act itself which prohibits
addition of more than 10 percent ethanol, alleviates any concern that the addition of
ethanol to gasoline will result in different volatility levels than already recognized by
EPA as adding less than 1.0 psi RVP to gasoline." Clean Air Act Amendments: Hearings
on H.R. 2521, H.R. 3054 and H.R. 3196 Before the Subcomm. on Health and the H.
7 See also, H.R. Rep. No. 101-490 at 71 and 312 (1990)(Conf. Rep.); reprinted at 2 Leg. Hist, at 3095 and 3336
(1993).
Page 82 of 126
-------
Comm. on Env't and Comm. On Energy and Commerce, 100th Cong. 1st Sess.
(1987)(statement of Eric Vaughn, President and CEO of renewable Fuels Association).
In sum, the text of section 21 l(h)(4) and this legislative history supports EPA's
interpretation, adopted in the 1991 rulemaking, that the 1.0 psi waiver in section
21 l(h)(4) only applies to gasoline blends containing 9-10 vol% ethanol.
In the 1991 rulemaking to implement the 1990 amendments EPA also interpreted the
related deemed to comply provision in section 21 l(h)(4) as establishing an alternative
compliance mechanism closely tied to the 1.0 psi waiver. It was interpreted as a
conditional defense against liability for those parties who blend 9-10% ethanol by
volume. EPA continues to interpret the deemed to comply provision in this manner, such
that it does not apply to ethanol blends greater than 10 vol%. This is consistent with the
text and legislative history of section 21 l(h)(4) and (h)(5).
The deemed to comply provision, as contained in section 214 of the Senate bill, states in
pertinent part: "[p]rovided, however, that [enumerated persons] shall be deemed to be in
full compliance with the provisions of this subsection and the regulations promulgated
there under if it can demonstrate . . . that. . . (B) the ethanol portion of the blend does not
exceed its waiver condition under subsection (f)(4) of this section." Clean Air Act
Amendments of 1990, S. 1630, 101st Cong. § 214 (1990), 101st Cong., 2d Sess. at 262;
reprinted at 3 Leg. Hist, at 4380 (April 3, 1990). Section 216 of the House bill used
somewhat different text from the language in the Senate bill that was finally adopted. The
House bill stated that "[a] manufacturer or processor of gasoline containing at least 10
percent ethanol shall be deemed in full compliance with such standards if the
Administrator provides a certification (based on testing) or other evidence acceptable to
the Administrator." Clean Air Act Amendments, S. 1630, 101st Cong. § 216 (1990) 101st
Cong., 2d Sess. at 294 (May 23, 1990); reprinted at 2 Leg. Hist, at 2102; See also H.R.
Rep. No. 101-490, at 71 (1990)(Conf. Rep.); reprinted at 2 Leg. Hist, at 3095 (1993).
As noted above, in 1987 Congress considered a bill containing language identical in
relevant part to the Senate provisions finally adopted in section 21 l(h)(4). The provisions
in that 1987 Senate bill were in response to EPA's 1987 proposed RVP rule, in which
EPA proposed a 1.0 psi waiver for ethanol blends, but conditioned this waiver on the
final blend being tested for RVP.8 The deemed to comply provision was Congress'
response to concerns that this was an impractical and overly burdensome way to
implement a 1.0 psi waiver for 10% gasohol. The Committee noted that "the enforcement
strategy recently proposed by the Agency ... would be totally unworkable for those
motor vehicle fuels which are a blend of gasoline and ethanol and which are allowed a
higher RVP limit under the reported bill." S. Rep. No. 100-231, 100th Cong. 1st Sess. at
149 (1987). The Senate bill describes the deemed to comply provision as "an alternative
enforcement arrangement." Under this provision, "blenders [would] be able to
demonstrate compliance with the RVP limit by providing certification that the base
gasoline is in compliance with the 9.0 Ibs. psi limitation and a certification that the
blended fuel meets the waiver conditions of the Clean Air Act (that is, the ethanol portion
does not exceed lOpercent by volume of the final fuel)." Id. Also see Id. at 150. Congress
: 52 FR 31274, 31305 (August 19, 1987) (see proposed 40 CFR 80.27(d)(l)).
Page 83 of 126
-------
explained that this provision simplified compliance with the 1.0 psi waiver because
"ethanol is generally blended with gasoline at the terminal in relatively small batches
(thousands of gallons) [and] [Requiring an actual test of the volatility of this blend in
every case, as EPA has proposed, would not be feasible considering the very large
number of batches mixed over any period, the lack of testing facilities and time to acquire
testing results." Id. Thus, the deemed to comply provision is tied to the 1.0 psi waiver. It
is designed to provide blenders the practical benefits of the 1.0 psi RVP waiver without
requiring that they conduct expensive batch by batch testing to ensure compliance with
the 1.0 psi higher RVP limit, e.g. testing to show that the 9-10% ethanol blend does not
exceed 10 psi limit. It is not intended as a free standing, separate authorization for a
relaxed RVP limit independent of the provision for a 1.0 psi waiver for 9-10% blends.
The text of the deemed to comply provision supports this interpretation. The provision is
an addition after the 1.0 psi waiver that modifies the 1 psi waiver for 9-10% blends. It is
not written as a free standing RVP limit that acts separate and apart from the 1.0 psi
waiver for 9-10% blends of ethanol. It references section 21 l(f)(4) as an indication that
Congress was well aware of the existing section 211(f)(4) waiver conditions for 10%
ethanol (by volume).9 It refers to the ethanol blend not exceeding its section 21 l(f)(4)
waiver conditions, and does not explicitly refer to 10% ethanol,10 but the condition of not
exceeding the section 21 l(f)(4) waiver limit cannot be read literally. A literal reading of
this phrase would mean that blends containing 1%, or 2%, or 5% ethanol would all be
blends that are deemed to comply, as they do not exceed the section 21 l(f)(4) waiver
limit. Reading the deemed to comply provision as meaning any and all lawful blends that
do not exceed the waiver limit would make the 1 psi waiver for 9-10% blends
meaningless. It would make no sense for Congress to limit the 1.0 psi waiver to blends
containing 9-10% ethanol and at the same time provide that blends with any lawful
percentage, including but not limited to 9-10% ethanol, could have the same 1.0 psi
allowance or a higher level of RVP. Moreover, had Congress intended that the deemed to
comply provision would establish a different ethanol content for ethanol blends that
would be eligible for a relaxed RVP limit, whether higher or lower content, it could have
expressly employed terms to that effect.
The deemed to comply provision and the 1.0 psi waiver provision are given consistent
meaning by limiting the deemed to comply provision to a subset of lawful ethanol blends.
The text of the 1.0 psi waiver and the deemed to comply provision and the legislative
history indicate that the deemed to comply provision was designed to address the same
subset of ethanol blends that receive the 1 psi waver - blends of 9-10% ethanol. It was
not a separate and free standing RVP provision aimed at another, larger subset of lawful
ethanol blends, whether above or below 9-10% blends. Instead it was tied closely to the
9 See for example, S. Rep. No. 100-231, 100th Cong. 1st Sess. at 149 (1987). ("[A]nd the Clean Air Act itself which
prohibits addition of more than 10 percent ethanol, alleviates any concern that the addition of ethanol to gasoline
will result in different volatility levels than already recognized by EPA as adding less than 1.0 psi RVP to
gasoline.").
10 But see section 216 of the House bill, which provided in part that "[a] manufacturer or processor of gasoline
containing at least 10 percent ethanol shall be deemed in full compliance with such standards if the Administrator
provides a certification (based on testing) or other evidence acceptable to the Administrator." H.R. Rep. No. 101-
490, at 71 (1990)(Conf. Rep.); reprinted at 2 Leg. Hist, at 3095 (1993).
Page 84 of 126
-------
1.0 psi waiver provision and limits the range of ethanol blends that can take advantage of
the deemed to comply provision to blends of 9-10% ethanol.
Further support for this view is provided in the action Congress took in 2005 when it
adopted section 21 l(h)(5). There Congress required that EPA remove the relaxed RVP
limit for 9-10% blends of ethanol upon notification and a specified showing by a State.
That provision treats the RVP limitation of section 21 l(h)(4) as a whole - it refers to the
RVP "limitation established by paragraph (4)" and provides that when a State notifies
EPA that such limitation increases emissions that contribute to air pollution in the State,
then EPA is to apply the RVP limits of paragraph (1) "in lieu of the [RVP] limitation
established by paragraph (4)" for blends of 10% ethanol. It draws no distinction between
the 1 psi waiver provision and the deemed to comply provision when referring to the
RVP limitation in section 21 l(h)(4). Section 21 l(h)(5) recognizes the potential for an air
pollution problem caused by the relaxed RVP limit in section 21 l(h)(4), and provides
States with an appropriate solution. When a State notifies EPA that the RVP limit under
section 21 l(h)(4) is causing an air pollution problem, EPA is to apply the more stringent
RVP limit under paragraph (1) in lieu of the relaxed limit allowed under section
21 l(h)(4). These more stringent RVP limits are applied to blends of 9-10% ethanol. A
straightforward reading of this provision is that Congress intended to provide States a
meaningful and complete solution to the emissions increases stemming from the relaxed
RVP provisions in section 21 l(h)(4), not a partial solution.11 However, if the deemed to
comply provision is read as applying to ethanol blends above or below 9-10% ethanol,
then this provision would have at most a partial benefit for a State and in some cases no
benefit at all. It would provide no relief at all for emissions from various ethanol blends
different from 9-10% ethanol, including E15, even if they had RVP and emissions the
same as or worse than ethanol blends of 9-10%. There is no indication Congress intended
such a partial and inconsistent solution. Additionally, legislative history indicates that this
provision "provides States an expedited process to eliminate the one-pound waiver in any
area of a State if the State demonstrates to the Administrator that the one-pound waiver
will increase emissions that contribute to air pollution in any area in the State." S. Rep.
No. 108-57, 108th Cong. 1st Sess. at 10 (2003)(Conf Rep.). Thus, the text and legislative
history indicate Congress viewed section 21 l(h)(5) as addressing the potential for air
pollution problems from the relaxed RVP limit in section 21 l(h)(4), which applies to
blends of 9-10% ethanol.
In sum, EPA views these three provisions - the 1.0 psi waiver and the deemed to comply
provision in section 21 l(h)(4), and the State relief provision in section 21 l(h)(5) - as
related provisions that should be interpreted together to harmonize them and provide
significance and a balanced meaning to each of them. EPA believes that this is
reasonably done by viewing the 1.0 psi waiver provision in section 21 l(h)(4) as applying
to blends of 9-10% ethanol; by viewing the deemed to comply provision as applying to
the same subset of 9-10% ethanol blends, and not applying to blends above or below the
range of 9-10%; and by viewing the provision for relief to States in section 21 l(h)(5) as
applying to the same subset of 9-10% ethanol blends. This is consistent with the text and
legislative history of the three provisions, which indicate that the RVP provisions in
1: It can be noted that the title of section 211 (h)(4) is "ethanol waiver" and the title of section 211 (h)(5) is "exclusion
from ethanol waiver," not partial exclusion from ethanol waiver.
Page 85 of 126
-------
section 21 l(h)(4) are intended to work together to facilitate the use of ethanol blends of
9-10%, that the deemed to comply provision is not a free standing or separate provision
that addresses fuels different from those covered by the 1.0 psi waiver, and that the
provision for States in section 21 l(h)(5) is intended to provide relief co-extensive with
the RVP limits in section 21 l(h)(4). This interpretation harmonizes all three provisions,
gives each of them significant meaning, avoids making any of the provisions
meaningless, and reasonably balances the various interests Congress was addressing in
these provisions - controlling the RVP of gasoline and ethanol blends in a way that
facilitates the practical downstream blending of ethanol while also preserving the ability
of States to address the increased emissions associated with a relaxed RVP limit for
ethanol blends.
We disagree with commenters' arguments that section 21 l(h)(4) should be interpreted
such that El5 is eligible for the relaxed RVP provisions in section 21 l(h)(4). Under these
commenters reading of section 21 l(h)(4), the 1.0 psi waiver would apply to fuels that
contain a minimum of 10% ethanol while the deemed to comply provision would set the
maximum ethanol content for the 1 psi waiver because it applies to blends not exceeding
the section 21 l(f)(4) waiver. Under these commenters reading the deemed to comply
provision would be a free standing provision that provides less stringent RVP limits for
levels of ethanol separate and apart from the 1 psi waiver for 9-10% blends specified in
section 21 l(h)(4). These commenters' reading recognizes that the deemed to comply
provision should be read as tied to the 1.0 psi waiver, as they appear to argue that the
deemed to comply provision applies the 1.0 psi waiver to blends higher than 10%.12
These commenters also appear to agree that the deemed to comply provision should not
be read literally but should only apply to a subset of the lawful ethanol blends, with 10%
blends as a minimum.
As discussed above, however, the text13 and legislative history of the 1.0 psi waiver and
the deemed to comply provision indicate that they both apply to the same subset of lawful
ethanol blends, those at 9-10% ethanol. These commenters improperly treat the deemed
to comply provision as a separate and free standing provision that would apply relaxed
RVP limits to ethanol blends greater than 10%. These commenters interpretation gives
the deemed to comply provision an impact above and beyond what would be allowed
under the 1 psi waiver itself, which is for blends of 9-10%. The text and legislative
history, however, indicate that the deemed to comply provision was designed as an
alternative enforcement arrangement that would provide blenders the practical benefits of
the 1.0 psi waiver for 9-10% blends without requiring expensive batch by batch testing. It
was intended to reasonably implement the 1 psi waiver for 9-10% blends, not to address
other blends not covered by the 1.0 psi waiver.
12 Commenter's interpretation also would not appear to be limited to fuels that would only increase RVP by 1 psi.
Under their interpretation, the fuel blend would be in compliance as long as it met the waiver conditions, no matter
how much higher the RVP of the resulting blend would be.
Selection of one House's version over another is by no means insignificant, and rejection of an amendment
should be taken into consideration in discerning statutory text. As shown earlier, Section 21 l(h)(4), which reflects
the language adopted in the Senate bill, provides a 1 psi waiver "for fuel blends containing gasoline and 10 percent
denatured anhydrous ethanol."
Page 86 of 126
-------
As discussed above, EPA agrees with these commenters that the deemed to comply
provision should not be read literally but instead read consistently with the 1 psi waiver
provision and so as applying to a subset of lawful ethanol blends. We disagree, however,
that the appropriate subset of blends intended by Congress includes blends above 10%.
As discussed above, it would make no sense for Congress to limit the 1.0 psi waiver to
blends containing 9-10% ethanol, and at the same time provide that a broader group of
blends, including blends with 9-10% ethanol and higher lawful percentages, could have
the benefit of the same or a higher level of RVP. The specific provision for 9-10% blends
would become largely meaningless. For example, under these commenters interpretation
the provision would amount to Congress saying the benefits of a 1.0 psi waiver are
limited to blends of 9-10% ethanol, but any blend from 9-15% ethanol will get those
same benefits and be deemed in compliance with applicable RVP limits. If the deemed to
comply provision becomes a free standing RVP limitation that applies to a different
subset of ethanol blends than the 1.0 psi waiver, then the specific 1.0 psi waiver provision
for 9-10% blends starts to lose meaning as a separate provision. These commenters seem
to realize this, and appear to argue that both the 1.0 psi waiver and the deemed to comply
provision apply to this larger subset of ethanol blends. While EPA agrees that the 1.0 psi
waiver and the deemed to comply provision both apply to the same subset of ethanol
blends, the text and legislative history indicate that these provisions apply to 9-10%
ethanol blends, and neither of them applies to a larger subset of ethanol blends as argued
by commenters.
Further, none of these commenters discussed section 21 l(h)((5) or explained how their
respective interpretations would interact with section 21 l(h)(5), which also specifies 10%
blends and provides for relief from the emission consequences of the 1 psi waiver only
with respect to 10% blends. As discussed above, section 21 l(h)(5) allows States an
"expedited process" for the elimination of the 1.0 psi waiver for 9-10% blends in areas
where application of the waiver would create air quality problems. S. Rep. No. 108-57,
108th Cong. 1st Sess. at 10 (2003)(Conf Rep.). It is premised on the long existing
interpretation of section 21 l(h)(4) that allows a relaxed RVP limit, through a 1.0 psi
waiver and a deemed to comply provision, for fuel blends containing gasoline and 9-10%
ethanol. As discussed above, however, these commenters reading would result in a
relaxed RVP limit and resulting increased emissions from blends greater than 10 percent
under the deemed to comply provision. This reading would in effect also render section
21 l(h)(5) meaningless and inoperative, in whole or in part. While these commenters
failed to address this provision, EPA's interpretation reasonably harmonizes all three of
these interrelated provisions and provides a balanced and meaningful interpretation.
EPA's interpretation views the 1.0 psi waiver provision in section 21 l(h)(4) as applying
to blends of 9-10% ethanol; the deemed to comply provision as applying to the same
subset of ethanol blends, and not applying to blends above or below the range of 9-10%;
and the provision for States' relief from the 1.0 psi waiver in section 21 l(h)(5) as
applying to the same blends of 9-10% ethanol. The text of the relevant statutory
provisions and the legislative history support this interpretation. This interpretation
harmonizes all three provisions, gives each of them significant meaning, avoids making
any of the provisions meaningless, and reasonably balances the various interests
Congress was addressing in these provisions - controlling the RVP of gasoline and
ethanol blends in a way that both facilitates the practical downstream blending of ethanol
Page 87 of 126
-------
while also preserving the ability of States to address the increased emissions associated
with a relaxed RVP limit for ethanol blends.
2.3 Fuel Storage and Dispensing Equipment Transition to E15
2.3.1 Underground Storage Tanks and Dispensing Equipment
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 3
Comment: Most equipment in service at petroleum retail locations is certified by Underwriters
Laboratories (UL) as compatible with gasoline blended with up to 10% ethanol. This
certification is required by local fire codes, and failure to comply with those codes could result in
fines, penalties, and/or the loss of a business. Retailers that store and sell El 5 with equipment
that is not officially certified also risk violating certain regulations of the Occupational Safety
and Health Administration (OSHA), tank insurance policies, state tank fund requirements, and
stipulations contained in bank loans extended to petroleum retail facilities. Retailers would need
to ensure that both underground storage tank equipment and fuel dispensers are compatible with
E15. If compatibility cannot be confirmed, replacement of the equipment or dispensers would be
necessary which is very expensive.
Organization: Petroleum Marketers Association of America (PMAA)
Document Number: EPA-HQ-OAR-2010-0448-0080, p. 2
Comment: An effective misfueling mitigation program alone will not remove all the
impediments that stand in the way of widespread introduction of E15 at the retail level. The
majority of petroleum marketers will continue to resist supplying El 5 so long as compatibility
questions persist with regard to existing retail storage tank system and dispensing equipment,
marine engines, motorcycles and nonroad power equipment. These remaining compatibility
issues create an unacceptable risk of liability for petroleum marketers that will largely bar the
introduction of El 5 so long as they exist. EPA's Office of Transportation and Air Quality should
work closely with the Office of Underground Storage Tanks and the Department of Energy to
resolve storage tank and dispensing system compatibility issues and continue to move forward
with regard to El 5 effects on marine engines, motorcycles and nonroad power equipment. Once
these remaining compatibility issues are resolved and the risk of liability is reduced to an
acceptable level, petroleum marketers will be able to fully embrace E15 gasoline blends.
Organizations: American Petroleum Institute (API)
Document Numbers: EPA-HQ-OAR-2010-0448-0081, pp. 14-15
Comment: With 40% of the ElO-rated new equipment failing tests and 70% of previously used
E10 rated equipment failing tests it is clear that there are serious issues with using any fuel
dispensing and storage equipment that is not specifically listed for El 5. The implication is that
many retailers may have to install new fuel systems in order to safely sell El5 in the future. The
cost of installing new systems may be a barrier to the introduction of El 5 fuel in the
marketplace. In the NREL report results, all six dispensers tested developed leaks or
malfunctions in the meter manifold or valves. Six of 10 nozzles failed. Six of nine breakaways
failed including every reconnectable breakaway. Leaks, lack of containment and reduced levels
Page 88 of 126
-------
of safety for breakaways, hose and nozzles are significant issues that have been underplayed by
the style of the NREL report. The only satisfactory performance came from the three shear
valves and the one flow limiter that were tested. All of the other equipment types had examples
of failed compatibility tests. Based on the NREL report, a reasonable conclusion could be that
the tests have shown that both used and new equipment that is listed for E10 may have
compatibility problems with E15 unless the equipment is specifically designed to dispense E15.
In order to assure that equipment placed in El5 service will perform properly and safely, the
following criteria must be met as specified in API RP 1626: 1) Material compatibility
verification (by testing, engineering analysis or manufacturer's claims); 2) Equipment
demonstrates continued functionality; 3) Equipment is listed for use with up to El5; and 4)
Equipment has the appropriate approvals from local, state or federal agencies for site operations.
The information needed by owners and operators is well documented in API 1626, Chapter 7,
and annex C to that report. Essentially every element of the UST and dispensing system must be
fully evaluated for suitability for use with El 5. The NREL report did not test the following
equipment: tanks; tank linings; piping; leak detection and tank measurement sensors and
systems; secondary containment or secondary containment sumps or seals; spill buckets; flexible
connectors; Stage 1 or 2 vapor recovery equipment or Enhanced vapor recovery (EVR) sensors;
tank hardware like overfill valves, drop tubes, extractor valves, fill caps, etc. Commenter (API)
notes that they are testing Stage 1 systems and that this testing will be complete in the second
quarter of 2011.
Organization: National Automobile Dealers Association (NADA)
Document Number: EPA-HQ-OAR-2010-0448-0085, p. 2
Comment: EPA should coordinate with federal and state underground storage tank (UST)
program administrators and inspectors to ensure tank system compatibility. Policies are needed
to help avoid corrosion and conductivity issues and potential vehicle and emissions performance
compromises by keeping sludge, dirt, or water from fuel storage systems from getting into higher
ethanol content gasohol.
Organization: Environmental Working Group
Document Number: EPA-HQ-OAR-2010-0448-0071, p. 6
Comment: Higher blends of ethanol may result in tank corrosion, which in turn can lead to
ground water contamination. Double-walled storage tanks are being installed as older single-
walled tanks are replaced. Since many service stations do not have adequate funding to quickly
update their infrastructure, more leaks will occur as ethanol blends are introduced into older
infrastructure that was not designed to store higher ethanol blends. EPA should conduct thorough
testing of El 5 with both old and new underground storage tanks, both single- and double-walled
tanks, various piping and pump infrastructure, and analyze short-term and long-term effects,
among others. After these analyses have taken place, fundamental questions about the future of
higher ethanol blends can then be examined, especially regarding limitations of our current
infrastructure and related environmental impacts. For instance, El 5 should not be allowed to be
stored in a tank unless it is double-walled and is compliant with testing at least once every three
years, per current government regulations. Government follow-up with cases of current leaking
underground storage tanks should also be completed and associated funding should be fully
allocated to ensure proper closure of these older tanks.
Response:
Page 89 of 126
-------
EPA is aware of material compatibility concerns associated with increasing the ethanol
content of gasoline. To prevent groundwater contamination from leaking underground
storage tanks (USTs), EPA regulations (40 CFR Part 280) require that UST systems be
made of or lined with materials that are compatible with the fuel stored. EPA's Office of
Underground Storage Tanks is issuing guidance for determining whether existing UST
systems are compatible for storing El 5. As briefly discussed in section IV.E.2.C of the
Preamble, other federal, state and/or local agencies regulate fuel dispensing and other
fuel-related equipment, so businesses that decide to sell El 5 will need to consider what
further steps they may need to take to ensure compliance with applicable requirements.
What Commenters Said:
Organization: Pennsylvania Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0058, p. 4
Comment: Prevention of E15 misfueling is necessary to avoid engine and emission control
system damage from phase separation, which occurs in ethanol-blended gasoline if a percentage
of water in the fuel reaches a threshold that causes ethanol to separate from the gasoline. This
would most likely not be seen in laboratory testing because well mixed fuel would likely be
used. In a retail gasoline storage tank that holds 6,000 gallons of E10 fuel, it takes less than 18
gallons of water to cause phase separation, which can reduce the octane rating from the gasoline
portion of the fuel (and upon combusting in an engine, can cause severe damage to the engine
and emissions control system). The effect of phase separation on emissions should also be better
quantified by EPA.
Response:
Both baseline and non-baseline gasoline must meet ASTM D4814-93a, under 40 CFR §
79.56(e)(3)(i)(A)(4). ASTM D4814 contains a workmanship statement indicating that
finished gasoline shall be visually free from water. This workmanship statement has been
in place in order to ensure proper tank maintenance and minimize any potential problems
that may be introduced from water. Further, it has been well documented over the past
two decades that water should not be in the fuel distribution system, regardless of
whether gasoline contains ethanol. Therefore, while it is possible that El5 could absorb
more water than E10, water should not be in the fuel distribution system. Additionally,
EPA is unaware of any significant or widespread problems associated with water phase
separation in storage tanks either in vehicles or in USTs.
2.3.2 Comingling of E10 and E15
What Commenters Said:
Organizations: Outdoor Power Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0053, p. 21
Comment: Commenter supports EPA's proposed controls to prevent an RVP exceedance
through requiring residuals of higher RVP E10 fuel to be completely removed from an
underground storage tank before El 5 is added into the tank.
Organizations: National Corn Growers Association
Page 90 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0074, p. 3
Comment: EPA should provide relief to affected retailers and wholesalers when transit!oning to
a different blend of fuel. Undue cost of completely cleaning out all tanks would burden these
businesses and could possibly affect the decision to adopt a new fuel. Transitional batches of fuel
could be allowed for a short period with appropriate documentation.
Response:
These comments are addressed in section IV. C of the Preamble of the final rule.
What Commenters Said:
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 5
Comment: The issue of commingling E10 and E15 was not addressed in the rulemaking. The
amount of co-solvents, corrosion inhibitors and stability additives varies depending on the
amount and type of oxygenates in the fuel, vapor/liquid relative characteristics, RVP blending
values, octane blending values and other factors. While a range of E10 fuels is routinely mixed
in-use by consumers who switch brands of fuel, insufficient data exists to assess the impact of
commingling El 5 with E10 blends. Such in-use blending could conceivably result in a finished
blend in the fuel tank that does not have sufficient corrosion inhibitors and stability agents to
avoid added material compatibility concerns and/or phase separation during cold temperature
operation.
Response:
As is explained in section IV.C of the Preamble, the prohibition on commingling of E10
and El 5 during the high ozone season applies to the level of the end-user dispensing tank
(typically an underground retail station tank) and would not be applicable to
commingling of E10 and E15 in a consumer's vehicle tank. The E15 waiver decisions
describe why the Agency concluded that El 5 blends would not cause these types of
materials compatibility problems in vehicles covered by the decisions.14 Additionally,
EPA notes that, under the conditions of the E15 waiver decision, the ethanol used must
meet ethanol ASTM standards in order to be utilized for blends containing El 5.15 Among
other things, these standards limit the amount of various impurities that may contribute to
these problems. Further, all fungible systems (tanks, pipelines, etc.) must typically meet
ASTM gasoline standards which specify blending practices that mitigate these problems.
Currently, we are unaware of any problems with regard to industry practices in these
areas. Furthermore, we do not believe that there is any need for co-solvents for blends
containing El5. Additionally, although EPA does not directly control the level of
additives that either mitigate corrosion or add stability to a fuel, it is typical industry
practice to assure sufficient additive levels to provide the needed properties for gasoline
blends. We therefore believe that if the two fuel blends commingle in a vehicle tank, the
14 See 75 FR 68128, November 4, 2010 and 76 FR 4681, January 26, 2011.
15 ASTM International D4806-10, Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines
for Use as Automotive Spark-Ignition Engine Fuel.
Page 91 of 126
-------
intermediate levels of additives would be sufficient for the corresponding intermediate
level of ethanol because the resulting additive levels would be proportionate to the
amount of ethanol present (assuming different additive levels were needed and used for
one blend versus the other).
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, pp. 16, 18
Comment: EPA's prohibition of comingling E10 using the 1.0 psi waiver and E15 in storage
because it may lead to RVP allowance exceedances is unnecessary and overly burdensome.
Regulated parties are already responsible for ensuring that their finished products in the
marketplace do not exceed the regional and/or seasonal RVP requirements. This requirement
would result in retailers draining tanks empty, perhaps unnecessarily, before transit!oning to El5.
Considering that most station owners will likely switch from E10 to E15 only once, there is no
reason to require the complete removal of all product at the considerable expense of time and
money for a one-time event. If EPA remains compelled to restrict the blending of these ethanol
blends at retail stations, it is appropriate that the prohibitions be limited only to the summer
months when RVP is restricted.
Response:
Section IV.C of the Preamble addresses the comment concerning the prohibition of
commingling E10 and E15 BOBs. We agree with the commenter that under today's
rulemaking violations associated with RVP increases would be restricted to the high
ozone season.
2.4 Credit for RFG Downstream Oxygenate Blending
What Commenters Said:
Organizations: American Petroleum Institute (API)
Document Numbers: EPA-HQ-OAR-2010-0448-0081, p. 18
Comment: With regard to how the regulation should address the credit of oxygenate blended
downstream of the refiner, the enforcement provisions in the proposed rule are a sufficient
deterrent that will prevent a downstream oxygenate blender from adding a volume of ethanol
other than the PTD-specified amount. Therefore, EPA should credit refiners with the full claimed
ethanol content. Survey data should reinforce the claimed information and should be sufficient
for compliance.
Response:
This comment is addressed in Preamble section IV.D of the final rule.
2.5 Compliance, Enforcement and Warranty
2.5.1 EPA's Commitment to Enforcement
Page 92 of 126
-------
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 5
Comment: Commenter supports EPA's denial of the waiver request for heavy-duty on-highway
vehicles, on-road and nonroad motorcycles, and all nonroad engine/equipment categories, but is
unsure whether EPA is committed to the associated enforcement efforts. However, commenter
states that EPA staff indicated during the public hearing on the proposed misfueling mitigation
rule that the Agency is not committed to enforcing the proposed measures preventing the
misfueling of nonroad engines/equipment. Specifically, EPA questioned the existence of
information pertaining to the influence of ethanol blends greater than E10 on nonroad
engines/equipment.
Response:
EPA is committed to enforcing the prohibitions and requirements of today's action. We
do not believe that EPA staff has indicated otherwise. EPA denied the El 5 waiver request
for use in nonroad vehicles, engines, and equipment based on available information and
the Agency's engineering assessment. We conditioned the El5 partial waivers on
measures being taken to mitigate the potential that such vehicles, engines and equipment
would be misfueled with El 5. We are issuing the final misfueling mitigation rule in order
to further reduce the potential for misfueling, and we intend to enforce both the waiver
conditions and the rule provisions.
2.5.2 Liability and Warranty Issues
2.5.2.1 Retailers and Petroleum Marketer
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 2-3
Comment: Although EPA clearly understands that a warning label on all gasoline pumps
dispensing El 5 is needed to allow for the successful introduction of such products in the
marketplace, this alone is not enough to promote its introduction and use. Misfueling mitigation
measures must be developed with a focus on consumer responsibility during self-service
refueling operations, particularly since in today's market, many retail facilities are quite large
with 25 dispensers or more and it is difficult to monitor all activities at their stations. Policies
must be in place to protect retailers from liability associated with an individual's actions over
which retailers have no control.
Organization: National Marine Manufacturers Association (NMMA)
Document Number: EPA-HQ-OAR-2010-0448-0095, p. 11
Comment: The bulk of EPA's efforts in the Affirmative Defenses for Liable Parties section of
the proposed rule are on addressing that the fuel is always what it purports to be through testing
of the fuel and blend equipment. EPA states that they would "typically not hold a self-service
fuel retailer liable for customer misfueling if the retailer has labeled their dispensers
Page 93 of 126
-------
appropriately and did not condone or facilitate such misfueling" (75 FR 68060). However, EPA
has provided no way to assess if misfueling is in fact occurring at those self-serve pumps or
defined what "condoning or facilitating such misfueling" would look like. EPA should require
self-service retailers to demonstrate that the design of their fuel pumps and signage adequately
prevents self-service misfueling errors in order to have the benefit of any affirmative defense.
Response:
See Preamble section IV.E.2.a for our response to comments relating to relieving retailers
of potential liability when a consumer misfuels a vehicle. Preamble section III.D.l.a
addresses the issue of whether the implementation survey required by today's rule should
include monitoring of consumer fueling.
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 2, 4-8
Comment: Introducing gasoline with greater than 10 vol% ethanol into the marketplace puts all
fuel retailers in a very difficult situation. The transition to offer customers the ability to use El5
is a complicated process, requiring the cooperation of many private industries and government
agencies. It requires a legal and regulatory regime that enables retailers to sell product without
exposing themselves to an unreasonable risk of litigation and enforcement actions. Use of E15
by vehicle and machine owners is likely to void the warranties provided by their engine and auto
manufacturers. Currently, auto manufacturers extend warranties on the existing fleet to
accommodate no more than E10, and they have not been willing to amend their warranties to
provide coverage retroactively in the event consumers refuel with blends higher than ten percent.
Retailers need to be protected from liability should a self-service customer misfuel their vehicle
or engine and void the associated warranty. Compliance with the labeling requirements should be
presumptive evidence that fuel providers have not made prohibited sales, unless there is contrary
evidence indicating that the providers have been engaged in the misfueling activity. In order to
facilitate ElS's introduction into commerce, EPA must ensure that fuel retailers who comply
with the labeling requirements are insulated from legal liability. If they are subject to private
lawsuits or EPA enforcement actions notwithstanding their compliance with the law, they will be
far less likely to sell E15. It is important to note that when lead was phased out in the 1980s and
different sized fill pipes were introduced to prevent misfueling, many consumers still went to
extraordinary measures to bypass the fill pipe-nozzle restrictions since leaded fuel was cheaper.
A similar situation exists today with El 5 (i.e., a cheaper fuel due to the lower cost of ethanol and
federal tax credits). Commenter provides significant additional discussion on this issue, asserting
that: 1) EPA's proposed affirmative defenses inadequately protect retailers; and 2) compliance
with EPA's labeling scheme should insulate retailers from liability absent extenuating
circumstances. With respect to the first point, commenter notes that having retailers demonstrate
that they did not commit or cause the violation and that they possess PTDs indicating that the
fuel was in compliance in order to avoid liability, is insufficient. If the customer ignores or
misunderstands a labeling scheme devised by EPA, the fault lies with either the customer for not
following instructions or EPA for devising a label that is not adequately informative. With regard
to the second point, commenter asserts that the final rule should specifically state that retailers
who are fully compliant cannot be held liable (in either an EPA enforcement action or a private
Page 94 of 126
-------
lawsuit) for any consequences of misfueling in the absence of conduct by the retailer that
encourages misfueling. Commenter says further that although this approach seems to be
consistent with EPA policy and is reflected in the Preamble (see 75 FR 68060), it should also be
specifically included in the final rule language.
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 9
Comment: EPA, in the proposed rule, states it "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" (75 FR 68060). Such retailers should be
exempted from liability for use of El 5 in unapproved vehicles or engines by customers under the
above circumstances. The retailer liability exemption provision, however, is not among the
affirmative defenses included under proposed section 80.1507, nor is it exempted from the
liability provisions in proposed sections 80.1504 and 80.1505. EPA should include liability
protection for retailers from customer use of El 5 in unapproved vehicles or engines in the final
rule.
Organization: Iowa Renewable Fuels Association (IRFA)
Document Number: EPA-HQ-OAR-2010-0448-0059, p. 2
Comment: Commenter notes generally that fuel retailers should be "held harmless" from any
misfueling penalties under the CAA when their pumps are properly labeled. A penalty provision
would discourage retailers from offering renewable fuels and would increase dependence on
foreign oil imports.
Response:
Preamble section IV.E.2.a addresses the comment that retailers that properly label fuel
pumps should not be held liable for violation of the misfueling prohibition by consumers
in the absence of conduct by the retailer that encourages misfueling. See Preamble
section IV.E.2.C for our response to comments relating to El5 compatibility issues with
storage tanks and dispensing equipment. Preamble section IV.E.2.C also contains our
response to comments relating to protecting retailers from financial liability for potential
damage resulting from consumer misfueling that may affect vehicle warranties, and our
response regarding EPA's lack of ability to dictate the rights and liabilities that private
parties may have in relation to each other under state law. See Preamble section III.F.l
for our response to comments related to the transition to unleaded gasoline. We note that
today's rule is designed to minimize the potential for misfueling and the problems that
misfueling could cause.
What Commenters Said:
Organizations: American Petroleum Institute (API); Marathon Petroleum Company
Document Numbers: EPA-HQ-OAR-2010-0448-0081, pp. 3, 16; EPA-HQ-OAR-2010-0448-
0056, p. 2
Comment: Commenters strongly disagree with the EPA's statement that "Compliance with the
labeling requirement does not ensure that the responsible parties have not made prohibited
sales." Because EPA has deemed that its misfueling mitigation strategy is sufficient to prevent
misfueling, EPA must stand behind its requirements and release fuel providers from liability
Page 95 of 126
-------
associated with misfueling. Positive compliance survey results and proper labels must result in
liability protection for the entire product manufacturing and distribution chain. Some fuel
providers may consider the misfueling liability risks of selling El 5 too high to justify the
investment in infrastructure. Consequently, it is counterproductive to the acceptance of E15 to
hold fuel providers responsible for a consequence that this rulemaking purports to prevent. API
provides significant additional discussion on this issue, noting that the proposed section
80.1505(b) would make gasoline refiners liable for label violations under Section 80.1504(b) for
failing to identify the proper ethanol content, and that similar labeling requirements under EPA's
diesel fuel regulations in 40 CFR Part 80, Sections 80.570 and 80.612(b) place the labeling
responsibility on the retailer (since they have the responsibility for affixing the label), not on the
branded refiner. Commenter also asserts that although EPA states that the Agency would
typically not hold a self service fuel retailer liable for customer misfueling (provided the retailer
has labeled their dispensers appropriately and has not condoned/facilitated misfueling), it should
also specify that other parties in the distribution chain would also not be held liable for such
misfueling when labels are appropriately used or when the warranties have been supplied to the
retailer by entities in the manufacturing and distribution chain. At minimum, a defense for a
branded supplier should be that the branded supplier has a program notifying its retailers of the
requirements of the law.
Response:
See Preamble section IV.E.2.a for our response to comments relating to labeling and
retailer liability. See the same section regarding the proposition that positive survey
results and proper labels, and/or a program to notify branded retailers of the requirements
of the law, should be deemed to satisfy the duties of the entire distribution chain above
the retailer.
2.5.2.2 Vehicle, Engine and Equipment Manufacturers
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 12
Comment: The test program foundation for the 2008 NREL report entitled "Effects of
Intermediate Ethanol Blends on Legacy Vehicles and Small Non-Road Engines, Report 1" was
inadequate. The conclusions expressed in the report are not supported by the data used for the
report. Emissions measured for non-handheld small nonroad engines substantially increased over
the useful life period when operated on either El 5 or E20 fuel blends. The reported deterioration
is much greater than equivalent units tested using EO and E10. Despite the small sample size, the
data show that such misfueling will result in increased likelihood of failures. Manufacturers are
concerned that these increased emission levels will manifest themselves as customer complaints,
warranty claims, and product failures resulting in increased manufacturing costs and reduced
customer acceptance.
Our Response:
The final rule prohibits the use of El 5 in MY2000 and older light-duty motor vehicles,
and all heavy-duty gasoline-powered vehicles, motorcycles, and nonroad engines,
Page 96 of 126
-------
vehicles, and equipment. See Preamble section IV.E.2.b for a discussion of the limits of
any potential manufacturer liability for warranty claims resulting from misfueling. We
note that today's rule is designed to minimize the potential for misfueling and the
problems that misfueling could cause.
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 13
Comment: Fuel system components are generally included within the scope of emission-related
components. The inclusion of both exhaust and evaporative emission controls in EPA's Phase 3
regulations for Small SI engines/equipment has significantly expanded the components that fall
within the scope of emission-related defect reporting requirements. In addition, the Phase 3
regulations mandate that manufacturers take action to investigate and report those defects. These
investigations and reporting activities will be complicated by the impact of misfueling.
Commenter recommends that EPA provide guidance to manufacturers regarding emission-
related defect reporting requirements associated with determination of misfueling influences.
Without such guidance, manufacturers will be subject to substantially increased compliance costs
associated with investigations and defect reporting requirements.
Response:
See Preamble section IV.E.2.b for a discussion of manufacturers' duty to investigate and
report defects that may be related to misfueling and for a discussion of measures retailers
may use to demonstrate lack of causation, facilitation or condoning of misfueling.
What Commenters Said:
Organization: American Automobile Association (AAA)
Document Number: EPA-HQ-OAR-2010-0448-0068, p. 1
Comment: Commenter acknowledges that making unintentional misfueling impossible is cost
prohibitive, but asserts that the use of a label alone is insufficient. Labels will not fully address
the risk of voiding the warranty and unintentionally violating federal law that motorists assume
under this proposal. Fuel system defects may show up months or even years after misfueling, but
the manufacturer could conceivably analyze a failure, conclude that gasoline containing greater
than 10% ethanol had been used at some time and deny a warranty claim. For those with vehicles
that are no longer covered under warranty, the impact could be more insidious as the need to
replace certain parts could come sooner than expected, resulting in additional consumer costs to
vehicle ownership.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 6-8
Comment: EPA's regulations require vehicle manufacturers to provide purchasers of all new
motor vehicles with "written instructions for the proper maintenance and use of the vehicle, by
the purchaser" (40 CFR 86.1808-01). These are integral to ensuring that vehicles are properly
serviced and that emission control system parts continue to function properly. Vehicle purchasers
are advised that the vehicle's emissions warranty coverage is contingent upon proper
maintenance. In compliance with the performance warranty regulations (e.g., 85.2104(h)(5)), and
Page 97 of 126
-------
to ensure that consumers use the correct fuel, manufacturers have specified the type of fuel that
should be used in their vehicles. The owner's manuals for nearly all gasoline-fueled vehicles
manufactured during the model years for which EPA intends to allow use of E15, specify that
any fuel containing more than 10% ethanol should not be used. EPA's waiver decision and
misfueling NPRM cannot retroactively impair a contract between a vehicle manufacturer and a
vehicle purchaser. Nothing in EPA's waiver decision or its misfueling NPRM either states or
implies that EPA's rulings "overrule" any contrary language in existing vehicles owner's
manuals, nor could EPA take such a position. First, nothing in CAA 21 l(f) gives EPA the
authority to nullify a manufacturers' vehicle maintenance instructions in owner guides issued in
accordance with EPA regulations. Second, neither Congress nor a federal agency may impair
private contracts with a law or a rule that exceeds their authority.
Organization: Association of International Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0079, pp. 11-13
Comment: The federal emissions warranty program does not extend to the use or misuse of El 5
fuel. Under this program, the manufacturer is required to cover the cost of repairs for emission-
related failures that are not associated with misuse of the vehicle, a failure to follow maintenance
instructions, and/or manufacturer defects. Thus, emission-related damages caused by El 5 use or
misuse will not be covered by federally mandated emissions warranties to the extent that the
owner's manual does not allow for the use of E15 (and emissions-related failure stemming from
El5 use is not attributable to manufacturer defects). It is within a manufacturer's discretion to
limit its warranty to E10 use, and the current in-service fleet (with the exception of flex-fuel
vehicles) was not designed for ethanol blends greater than E10.
Organization: National Automobile Dealers Association (NADA)
Document Number: EPA-HQ-OAR-2010-0448-0085, p. 2
Comment: Most new and used vehicles sold by dealers have language in their owners' manuals
specifically warning against the use of greater than 10% ethanol in gasoline, often indicating that
component damage and drivability problems not covered by warranty may result. EPA must not
send the motoring public conflicting messages without the consent and cooperation of the
manufacturer involved.
Response:
See Preamble section IV.E.2.b for conditions precedent to legitimate denial of a
consumer warranty and also when and how manufacturers must honor, or may deny,
vehicle and equipment warranties. In addition, EPA notes that manufacturer warranties
have expired for the vast majority of MY2000 and older light duty vehicles, which are
among the vehicles types not covered by the El5 partial waivers. Today's rule prohibits
misfueling such vehicles with El 5, and to the extent some vehicles might nonetheless be
misfueled, it is unlikely that few, if any, would result in warranty claims.
Clean Air Act section 21 l(f)(4) authorizes waivers for fuels and fuel additives for which
a demonstration is made that the fuel or fuel additive will not cause or contribute to
failure of emission standards. The fuel specified by manufacturers for their vehicles in
owners' manuals or as a warranty condition is not determinative of whether that statutory
test can be met. In the case of El 5, testing and analysis were sufficient to make the
statutorily required demonstration for a fuel waiver.
Page 98 of 126
-------
EPA's decision to grant partial waivers allowing El 5 to be sold for use in MY2001 and
newer light-duty motor vehicles does not prevent manufacturers from acting on warranty
claims in accordance with the terms of the warranty and EPA's regulations governing
emissions-related warranties. Retailers of vehicles, engines, equipment and fuel may also
provide their customers with information about fueling with El5 in addition to that
required under today's rule and the partial waivers. As described in Preamble section
III.E and earlier in this document, EPA also anticipates that the public education and
outreach efforts that accompany the introduction of El 5 into the market will
communicate additional useful information to consumers.
See Preamble section IV.E.2.C for a discussion of EPA's lack of authority to modify
rights and liabilities between private parties in a manner other than is set forth in the
Clean Air Act.
What Commenters Said:
Organization: Association of International Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0079, pp. 15-16
Comment: EPA acknowledges that misfueling has the clear potential to damage emission
control systems and increase emissions. If EPA subjects a group of vehicles to in-use testing and
finds that they are failing to meet their applicable emission standards, will the Agency be able to
determine whether such failures are caused due to inherent defects in the vehicles or due to
misfueling? If EPA cannot objectively distinguish between cars that have improperly used El 5
and those that used an approved fuel, it is unclear how the Agency will prevent manufacturers
from being held liable for consumer misfueling. Without a clear policy delineating how EPA
intends to enforce the warranty and in-use compliance testing, EPA is essentially attempting to
place the cost of misfueling (as well as costs associated with legal El 5 use to the extent that it
has unanticipated impacts) on auto manufacturers' shoulders. These issues must be addressed as
part of a more comprehensive and effective misfueling program that will actually prevent
misfueling, which will in turn avoid costs and unfair liabilities being placed on auto
manufacturers.
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 22-23
Comment: In the proposed rule, EPA has created affirmative defenses for gasoline retailers,
distributors, and blenders that undertake or implement certain precautions, but has not created or
discussed the creation of similar "safe harbor" provisions for engines, vehicles, or equipment
manufacturers. Because of misfueling with fuels containing greater than 10% ethanol,
manufacturers of lawn, garden, and forestry products could become unfairly subject to defect
reporting, emission warranty obligations, or emission-recall requirements. EPA should ensure
that these manufacturers are not unfairly penalized and should also identify some examples
where a manufacturer could rely on "good engineering judgment" to determine that a reported
claim or defect resulted from misfueling.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 11-13
Page 99 of 126
-------
Comment: Commenter expresses concern that EPA staff has adopted a dismissive attitude
towards the real concerns raised by Small SI engine and equipment manufacturers regarding the
unavoidable misfueling of such engines and equipment with E15. In theory, the consumer would
be responsible for the effects of the intentional misfueling of such products with El 1-E15, but
experience has shown that consumers are rarely held accountable for their actions. Companies
have either voluntarily or been forced to absorb substantial costs associated with unacceptable,
but predicable consumer behavior. EPA's proposed rule fails to create any protection for engine,
vehicle, or equipment manufacturers unfairly subjected to defect reporting, emission warranty
obligations, or emission-recall requirements resulting from misfueling.
Response:
See Preamble section IV.E.2.b for our response to comments relating to how misfueling
with El 5 might impact manufacturer defect reporting requirements, warranty and recall
obligations. EPA is concerned about the potential for misfueling of vehicles, engines and
equipment not covered by the partial waivers, and is issuing today's final rule to further
reduce that potential
2.5.2.3 Ethanol Producers and Importers
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 17
Comment: In the Preamble to the NPRM and in the proposed survey requirements in §80.1502,
ethanol producers/importers are added to the traditional list of responsible parties (i.e., fuel
producers/importers and ethanol blenders). However, in the proposed §80.1505 where liable
parties are specified, ethanol producers are conspicuously absent. It is not clear how ethanol
producers/importers can cause prohibited acts beyond misrepresenting the product specification
or blending denaturant at the incorrect level. EPA should be consistent in how companies are
treated and recognize that both ethanol and gasoline producer's level of responsibility at retail is
limited.
Our Response:
As discussed in section IV.E of the Preamble, the rule's approach to assigning liability for
downstream violations is similar to that taken in other EPA fuel programs and reflects the
nature of the fuel distribution system and the respective abilities of different links in the
fuel distribution chain to affect downstream compliance. With respect to ethanol
producers that produce ethanol used in E15, the liability provisions of today's rule reflects
their role in introducing El5 into commerce and mitigating the potential for misfueling.
Under today's rule, ethanol producers that produce ethanol intended for use in producing
El5 may be held liable for failing to implement an approved survey and causing other
violations if E15 is distributed before a survey plan is approved and commenced. They
are included in the "Who Is Liable" section (§ 801505(a)), which makes "any" person
liable for a violation of § 801504(a) - (i). They may also be liable for downstream
violations to the extent they undertake other functions specified in §80.1505(a). Those
functions include those typically performed by gasoline producers or distributors, so
Page 100 of 126
-------
ethanol producers that also act as gasoline producers or distributors are liable as specified
for those roles.
2.5.2.4 Consumers
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 16
Comment: If the dispensers are appropriately labeled and despite such labeling a person
intentionally misfuels a motor vehicle or nonroad equipment, the regulations do not impose any
regulatory liability on such persons. Without that possibility of regulatory liability, enforcement
of the misfueling prohibitions becomes more difficult with the potential for increased air
emissions and vehicle or equipment damage. EPA is encouraged to modify this proposal
accordingly to assist in compliance with the misfueling prohibitions.
Organization: Pennsylvania Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0058, p. 2
Comment: Upstream of the consumer, there are control measures to verify the ethanol content
and consequences for non-compliance. However, there is no mechanism for oversight of
consumer fueling and no consequence to the consumer for intentional misfueling of a vehicle or
equipment other than the potential cost of replacement. The pump label, if not clearer, will not
prevent misfueling. There should be stronger language and fines for a consumer who
intentionally violates the regulation if caught misfueling a noncompliant vehicle.
Response:
See Preamble section IV.E.2.a, discussing § 80.1504(a)(l) and confirming that
consumers are liable for intentional misfueling.
2.5.3 Affirmative Defense Provisions
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 9
Comment: EPA's proposed affirmative defense provisions are similar to those under the RFG
program. However, under the RFG program a carrier may use another party's quality assurance
program as part of the carrier's affirmative defense, provided the other party completed a proper
quality assurance program. By comparison, proposed section 80.1507(a)(l)(iii)(B) only allows a
carrier to rely on the sampling and testing program portion of the other party's quality assurance
program. EPA should change this provision to allow a carrier to rely on all aspects of another
party's properly-completed quality assurance program as part of the carrier's affirmative defense
so that there is a consistent set of affirmative defenses across all fuel programs.
Response:
Page 101 of 126
-------
The sampling and testing program is the major part of the required quality assurance
program, and it would be inappropriate to require the carrier to duplicate this aspect of
the program. However, other aspects of a quality assurance program, such as ensuring
compliance with PTD requirements, or verifying the presence of required labeling may
be uniquely appropriate for carriers. Accordingly, EPA does not concur that relieving
carriers of all duties of a quality assurance program is merited in the context of
implementing a misfueling mitigation program for El 5 and is therefore not making the
requested change.
2.6 Technical Basis for the Rule
2.6.1 Technical Issues/Justification
2.6.1.1 Fuel Dispensers
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, p. 5
Comment: Blender pumps and other pumps that dispense varied options through a single hose
and nozzle will cause problems since after a vehicle is filled up with mid-level ethanol, there will
be a half gallon of that mid-level ethanol fuel remaining in the hose. That residual amount could
be dispensed into a portable container even if the consumer properly selected EO to E10 fuels for
refueling. Therefore, fuel hoses should be designated specifically for EO to E10 fuels in order to
prevent contamination from residual mid-level ethanol.
Response:
We agree that blender pumps with single dispensing hoses for providing EO to E10 fuels
and El 5 fuel present a unique challenge for dispensing gasoline into portable containers
since there may be a small amount of the last blend pumped through the hose which
would still remain in the hose when the hose is subsequently used to dispense the next
blend. Should the first blend pumped be E15, the hose would contain a quantity of E15
which could then be blended into a vehicle for which El 5 is not approved or a portable
container intended to be used to fuel a nonroad engine such as a lawn mower.
EPA is unaware of any organized survey of dispenser hose diameters or lengths and,
therefore, it is difficult to precisely say what the average, high or low end levels of the
residual amount of fuel in a hose actually is. Dispensing hoses range in length and
diameter, but a general estimation of the volume of hoses currently sold in the
marketplace based on their lengths and inside diameters would indicate that the half
gallon estimate of the commenter is in the appropriate range (e.g., a ten-foot hose with a
one-inch inside diameter would have a volume of about 0.4 gallons).
In the case of a vehicle with a 10 to 20-gallon (or more) fuel tank, this small amount of
El5 would be unlikely to change the ultimate ethanol concentration in the vehicle's tank
to any significant degree. However, with a portable container containing, for example,
2.5 gallons (a typical size for such a container), 20 to 25 percent of the E15 fuel in the
portable container could be the residual El5. In such a situation, the resulting blend in the
container would be approximately equivalent to El 1, assuming the container was fully
Page 102 of 126
-------
filled and the residual El 5 was equal to 0.5 gallons. In the October Waiver Decision, we
explained that there are insufficient data to determine the specific effects of El 1 on motor
vehicles or nonroad engines. However, since El 1 would not have a greater impact than
El5, EPA granted partial waivers allowing ethanol blends greater than 10 vol%, and up
to 15 vol%, ethanol to be introduced into commerce for MY2001 and newer light-duty
motor vehicles.
Although a one-time use of El 1 in an engine not approved for El 5 may have minimal
consequences, a blender pump utilizing a single dispensing hose does present a unique
situation. We expect that fuel providers selling El 5 using blender pumps will take steps
as part of their public outreach and other misfueling mitigation efforts to avoid
inadvertent misfueling. More generally, as El 5 enters the market, the issue of potential
commingling of E15 with E10 in dispensing hoses can be usefully addressed by
stakeholders as they develop a broad public education and outreach campaign that
provides both consumers and retailers with the information they need to avoid
misfueling. As a participant in that effort, EPA will help ensure that the issue is raised
and effective responses are implemented.
What Commenters Said:
Organizations: National Association of Convenience Stores (NACS) and Society of
Independent Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, pp. 3-4
Comment: Underwriters Laboratories (UL), an independent testing and certification company,
has stated that "under normal business conditions, E10 at the dispenser can vary from about 7 to
13 percent ethanol." A similar variance is likely to exist for E15, and a higher maximum level
(up to 18%) may be necessary to allow pumps to be certified to deliver El 5.
Response:
EPA does not concur with this comment or its premise. As we explained in the October
Waiver Decision (see 75 FR 68138-68141), the range of expected ethanol content values
typically encountered through fuel sampling is due to inherent variability of the ASTM
test procedure used to measure the concentration of ethanol in gasoline (both within the
same testing laboratories and between different laboratories). The Agency concluded
after thoroughly analyzing EPA's fuels program data and third-party data that the
observed distribution in measurements of ethanol content is precisely what one would
expect to see for fuel samples that actually contained no more than 10 vol% ethanol. In
other words, the blending of ethanol into gasoline is a relatively precise process and the
varying ethanol contents measured in the field is primarily a result of variability in the
test methods for ethanol content. Furthermore, the certification of fuel dispenser
components is outside of the scope of this rulemaking.
2.6.1.2 Fuel Quality
What Commenters Said:
Organization: National Association of Clean Air Agencies (NACAA)
Page 103 of 126
-------
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 5
Comment: The use of E15 will affect vapor pressure and the distillation characteristics of the
final fuel formulation. As a result, the existing margins of compliance built into current
evaporative control systems, as well as OBD systems, are at some risk due to the use of E15.
Although the RVP level of E15 is likely to be less than that for E10, due to the non-ideal mixture
characteristics of alcohols blended with gasoline, careful attention must be paid to the aggregate
volatility impact of El 5 introduction. EPA should, at a minimum, identify steps that blenders
should take to ensure that the anticipated distillation curve of El 5 matches E10 fuel.
Response:
EPA acknowledges that increases in RVP and distillation may adversely affect
evaporative emissions control systems in motor vehicles. In response to this concern, the
Agency placed a waiver condition limiting the summertime RVP of E15 to 9.0 psi (see 75
FR 68149 (November 4, 2010)). In the partial waiver decisions, EPA also addressed the
potential impact of El 5 use on OBD systems and MILs (see 75 FR 68094 (November 4,
2010) and 76 FR 4662 (January 26, 2011)). Identifying the steps that blenders should take
to ensure that the anticipated distillation curve of El 5 matches E10 fuel is outside of the
scope of this rulemaking. Although EPA does not require gasoline to meet specific
distillation parameters (other than valid range limits necessary to certify batches of fuel
with the Complex Model), many states requires that gasoline meet specific volatility and
distillation classes. EPA expects that fuels in these areas, including El5 that is introduced
into commerce, will meet the necessary seasonal and geographic requirements.
What Commenters Said:
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 5
Comment: Changes to the distillation characteristics resulting from El5 may also affect the
Drivability Index (DI) used by auto manufacturers to optimize the performance of vehicles.
Changes in DI due to El 5 have been shown to create noticeable changes in performance of some
vehicles and may therefore result in aftermarket tampering to adjust for these differences. Due to
the relative paucity of data on this issue, EPA should exercise caution with this decision and
postpone final action until such data is available on a large number of test vehicles.
Response:
Although this issue is outside of the scope of this rulemaking, EPA addressed the
potential effects of E15 on the driveability/operability of vehicles, engines, and
equipment in the partial waiver decisions (see 75 FR 68094 (November 4, 2010) and 76
FR 4662 (January 26, 2011)). EPA does not require that gasoline meet the Driveability
Index (DI); however, many states require that gasoline sold in those states meet certain
ASTM specifications, including DI. EPA expects that fuels meet appropriate seasonal
and geographic fuels requirements where applicable.
What Commenters Said:
Organizations: Outdoor Power Equipment Institute (OPEI)
Page 104 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0053, pp. 20-21
Comment: So that engines can operate properly, the blended fuels being marketed need to meet
tight specifications for all the characteristics that can be adversely affected by ethanol blending,
including distillation curves, flammability limits, water absorption, gum, and RVP. Any El 5
introduced into commerce must comply with ASTM D4814 (and engines are designed to work
with fuel meeting that standard), but it does not appear that El 5 fuels would be in compliance
with these standards, which could potentially impair startability and operability issues. The
blending of ethanol within the fuel station (splash blending) is more likely to result in an RVP
that is unpredictable and/or too high, resulting in increased evaporative emissions, vapor locks
and increased heat that will damage engines. There is no verification mechanism to ensure
blender pumps are dispensing a continuum of fuels in compliance with ASTM D4814.
Commenter notes that the blending should be done at a refinery that can better control the
process, and adds that in the proposal, EPA only raises specification concerns associated with
RVP of the blended fuel, but other specifications should also be addressed.
Response:
EPA regulations and the Clean Air Act include various provisions that address the
composition of motor fuels that may be introduced into the marketplace, since the
characteristics of fuels may impact emissions. Furthermore, the conditions placed on the
waiver (75 FR 68094, November 4, 2010, and 76 FR 4662, January 26, 2011) address
RVP and fuel ethanol quality. Comments regarding other gasoline properties are not
within the scope of this FRM. In this rule, as is explained in Preamble section IV.B and
more fully discussed in section 2.2.3 above, EPA is interpreting the statutory RVP waiver
provision (Clean Air Act section 21 l(h)(4)) as applying only to E10, so E15 will need to
meet applicable RVP requirements. EPA may consider changes to nationwide RVP
standards in the future but it is not within the scope of this rulemaking. EPA will take
action when it finds gasoline blends out of compliance with RVP regulations or any other
applicable EPA regulations.
2.6.1.3 Fuel Additives
Organization: ValvTect Petroleum Products
Document Number: EPA-HQ-OAR-2010-0448-0086, p. 2
Comment: Even though certain fuel additives (e.g., ValvTect Ethanol Gasoline Treatment)
could help prevent certain problems associated with higher ethanol blends in later model marine
engines that were designed for ethanol use, it will not prevent engine component compatibility
problems in certain older model marine engines, fuel tanks, and/or fuel hoses that were not
designed for using higher ethanol blends.
Response:
Unless a marine engine is designated for flex fuel, the rule prohibits introducing El5 into
it, regardless of when it was manufactured, or what fuel additives are used.
What Commenters Said:
Organizations: Alliance of Automobile Manufacturers (Alliance)
Page 105 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 17
Comment: Detergency is becoming more important than ever as automakers use more advanced
fuel injectors in the their engines for better control and fuel economy. Also, detergent
registrations only go up to E10, which means El 5 will remain unmarketable until EPA addresses
this registration issue.
Response:
EPA requires fuel manufacturers to certify the detergents they add to gasoline to prevent
the accumulation of deposits in engines and fuel systems. EPA regulations currently
require that national certification test fuels used to demonstrate the effectiveness of these
detergents contain 10% ethanol by volume. Although EPA may consider the impact of
El5 use on detergent certification regulations, EPA did not propose any such changes in
this rulemaking and consideration of detergent regulations are outside of the scope of this
rule. Under the current regulations, detergents certified utilizing the current national
certification fuel would satisfy detergency requirements for potential new fuels, including
E15, entering the market until any changes in the detergency requirements were adopted.
2.6.1.4 Effect of E15 on Engines, Vehicles, and Equipment
What Commenters Said:
Organization: Historic Vehicles Association (HVA)
Document Number: EPA-HQ-OAR-2010-0448-0076, p. 2
Comment: Despite the limited and inadequate amount of testing that has been done on older
vehicles and nonroad engines, there has been consistent data to indicate damage to vehicle
emission control systems, decreased fuel economy, fire risks during transportation and retail
dispensing, and worse emissions. Historic vehicles clearly were not designed to accommodate
the chemical properties of a fuel additive like ethanol. The corrosive effect on fuel system
components for historic vehicles imposes serious burdens on owners (e.g., installing retrofits
with compatible modern components, addressing damage to historically correct components after
fueling with ethanol blends, etc.) which may require the owner to stop driving the vehicle.
Response:
We acknowledge the issues raised by the commenter. We note that E10 has been in
commerce in the U.S. for over 30 years, and in that time manufacturers and consumers
have made adjustments to the extent necessary to accommodate or use that fuel in many
vehicles, and in the case of some vehicles, decided that fueling with EO (or another
specified fuel) is advisable or recommended. The El5 partial waivers allow, but do not
require, fuel providers to introduce El5 into commerce for use in MY2001 and newer
light-duty vehicles. There is no prohibition on a refiner continuing to offer EO for historic
or any other vehicles and engines. The El 5 partial waiver decisions acknowledge that
ethanol increases the vapor pressure of gasoline, so there can be an increase in
evaporative hydrocarbon emissions with its use. However, as we explained in the
decisions, newer vehicles have more robust evaporative control systems designed for E10
and testing and analysis indicate they can also accommodate E15. It is also worth noting
that any additional refueling emissions are captured with vapor recovery systems in urban
Page 106 of 126
-------
areas. Please see the Preamble section IV.H for a discussion on EPA's upcoming efforts
to study and address the potential adverse effects of increasing renewable fuels use on air
quality and public health.
What Commenter Said:
Organizations: National Association of Clean Air Agencies (NACAA); Pennsylvania
Department of Environmental Protection (PA DEP)
Document Numbers: EPA-HQ-OAR-2010-0448-0077, p. 5; EPA-HQ-OAR-2010-0448-0058,
p. 4
Comment: The final rule should protect motorists from unnecessary illumination and repair of
maintenance indicator lights (MILs), which could malfunction due to the presence of El 5 and
affect the OBD system designed to detect and offset excess emission occurrences. Conversely,
consumers may simply ignore all MIL illumination if they suspect such malfunction indicators
are in error due to the use of E15 leading to higher vehicle emissions. PA DEP provides
additional discussion on this issue noting that misfueling with El5 could lead to MIL
illumination and catalytic converter damage as well as adverse effects on air quality and public
health.
Response:
The Agency addressed E15's expected impact on maintenance indicator lights (MILs)
and catalysts in detail in the partial waiver decisions (see 75 FR 68094 (November 4,
2010) and 76 FR 4662 (January 26, 2011)). For vehicles covered by the partial waivers,
we do not expect El 5 to lead to unnecessary illumination and repair of MILs or catalyst
damage. For vehicles and engines not covered by the partial waivers, the misfueling
mitigation provisions of today's rule and the partial waivers are designed to effectively
mitigate the potential for misfueling and thus any impact misfueling might have on
emission control systems. Please see Preamble section IV.H for a discussion on EPA's
upcoming efforts to study and address the potential adverse effects of increasing
renewable fuels use on air quality and public health.
What Commenter Said:
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 5
Comment: Commenter states that adding 15% ethanol to gasoline will change the solubility
properties of the fuel compared to those of E10. These effects are different from changes to
volatility. Such changes have been shown to increase HC permeation emissions. EPA provided
no analysis of the impact of El 5 on permeation emissions. In contrast, California's latest
Predictive Model governing ethanol/gasoline blends takes special note of permeation effects of
increased ethanol levels in gasoline. Testing by CRC also suggests that the increase in
permeation emissions is essentially linear as a function of ethanol content in low-level blends.
Response:
Page 107 of 126
-------
Please see the January partial wavier decision (76 FR 4662 (January 26, 2011)) for our
explanation of how the CRC E-77 test programs and other information, including
compliance and in-use data, provide an adequate basis for determining that El 5 will not
significantly impact evaporative emissions of MY2001 and newer light-duty vehicles.
What Commenters Said:
Organization: Pennsylvania Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0058, pp. 3-4
Comment: EPA has not fully investigated the effects of El 5 on engine, fuel system, and
emission control materials. In the waiver application, Growth Energy submitted a series of
studies completed by the State of Minnesota and RFA to EPA as supporting evidence. However,
the studies were not real-world studies; they were laboratory studies that did not adequately test
the durability of engine, fuel system, and engine control materials using El 5. The studies
demonstrated mixed results on the materials tested. Additionally, the studies were performed
only on components of the engine and/or fuel and emissions systems, and not the entire engine,
fuel, and emission control system. In order to best evaluate effects on materials and emissions, it
is best to test the emission control system components when they are installed in a vehicle
operating on E15. Without long term durability studies, the effects of E15 on engines, fuel
systems and emission control systems cannot be adequately documented and could result in
accelerated component failure in vehicles.
Response:
Please see the October and January partial waiver decisions (75 FR 68093 (November 4,
2011) and 76 FR 4662 (January 26, 2011) respectively) for our explanation of how
available test data and other information provide an adequate basis for determining that
El5 meets the statutory test for a fuel waiver with respect to MY2001 and newer light-
duty vehicles with applicable standards.
What Commenters Said:
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 8
Comment: There is no evidence in the record that use of El 5 will cause the failure of vehicles or
emission control devices to meet emission standards. To the contrary, evidence in the record
supports that use of El 5 will not cause such problems. The need for measures to prevent use of
El5 in unapproved vehicles is very low. The approach proposed by EPA in the rule — pump
labels, tracking El 5 through commerce with PTDs, use of compliance surveys, and public
outreach — is sufficient to ensure that El5 is used only in approved vehicles.
Response:
As noted in the waiver decisions, EPA lacks data showing that use of El 5 is compatible
with the types of vehicles and engines not covered by the partial waiver decisions. As
noted in Preamble section IV.E, EPA believes the measures finalized in the rule are
sufficient to mitigate the potential that those vehicles and engines will be misfueled with
E15.
Page 108 of 126
-------
2.6.1.5 Safety Concerns
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 13
Comment: Manufacturers are subject to the regulations administered by the Consumer Product
Safety Commission (CPSC). If a safety-related liability situation arises, manufacturers are
concerned that they will be subject to expensive and time-consuming evaluations in order to
determine the role of misfueling. This could be particularly problematic for legacy nonroad
products, built and placed into the distribution system prior to the introduction of E15. Nonroad
product manufacturers generally have little or no ability to identify or notify the consumers who
actually own their products. CPSC could force manufacturers to take proactive steps to ensure
that misfueled engines/products do not exhibit safety concerns. EPA provides little support to a
manufacturer's ability to defend its products against safety related claims caused by misfueling.
Organization: Association of International Automobile Manufacturers (AIAM)
Document Number: EPA-HQ-OAR-2010-0448-0079, pp. 16-17
Comment: To ensure that vehicles meet applicable safety standards in-use, the National Traffic
and Motor Vehicle Safety Act authorizes the National Highway Traffic Safety Administration
(NHTSA) to require manufacturers to recall vehicles in order to remedy problems that may
present safety risks for consumers. Using improper fuels can lead to drivability, performance,
and materials compatibility problems that can raise safety concerns. For instance, improper fuels
can cause corrosion or deterioration of fuel system components and resulting performance
problems (such as faulty fuel injectors) or fuel leakage that could cause fires. Such conditions
could present potential safety risks for consumers and could result in NHTSA requiring auto
manufacturers to conduct safety-related recalls. EPA's proposed rule contains no discussion of
this potential liability issue, and offers no protection to manufacturers in the event that the use of
El5 causes materials compatibility or other problems resulting in safety recalls.
Response:
See Preamble section IV.E.2.C regarding recalls for safety and other issues outside of
EPA's jurisdiction. We note that today's rule is designed to minimize the potential for
misfueling and the problems that misfueling could cause.
What Commenters Said:
Organization: American Petroleum Institute (API)
Document Number: EPA-HQ-OAR-2010-0448-0081, p. 15
Comment: EPA's approach did not consider the potential safety risks to the ultimate consumer
if the retail station equipment is not compatible with E15.
Response:
The El5 partial waiver decisions allow, but do not require, businesses to sell El5 for use
in MY2001 and newer light-duty motor vehicles. There are a number of additional steps
Page 109 of 126
-------
that businesses must take to bring El 5 to market, including compliance with other
federal, state and/or local requirements, which address, among other things, the
compatibility of retail station equipment with El 5.
2.7 Legal and Other Issues
2.7.1 Legal/Statutory Authority
What Commenters Said:
Organizations: Alliance of Automobile Manufacturers (Alliance); Association of International
Automobile Manufacturers (AIAM); Outdoor Power Equipment Institute (OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 9; EPA-HQ-OAR-2010-0448-0079,
pp. 4-7; EPA-HQ-OAR-2010-0448-0053, pp. 8-9
Comment: The CAA does not authorize or allow EPA to issue a partial waiver for E15. In the
2007 amendments to the Energy Independence and Security Act (EISA), Congress strengthened
fuel waiver provisions in Section 21 l(f)(4) of the CAA, which prohibits EPA from approving a
fuel waiver unless the Agency determined that those fuels would not cause "any" failures (from
on-road or nonroad products) to meet their applicable emission standards over their useful lives
in operation. Contrary to Congressional intent, EPA's partial waiver decision and ineffective
misfueling control will likely result in damaged products, emission failures, and increased air
pollution because of the high rates of misfueling of El 5 fuels into sensitive nonroad products.
One commenter (AIAM) notes that in past cases where EPA has issued conditional waivers to
ensure that the requirements of Section 21 l(f)(4) were met, the conditions were clearly defined
and that in this case, EPA acknowledges the significant risk of misfueling and proposes controls
that lack any proven record of effectiveness for preventing intentional and/or unintentional
misfueling. Even assuming EPA had the legal authority to grant a "partial waiver," EPA could
only rely on misfueling controls that were tested, proven, and documented to be so effective and
robust that there will not be any significant misfueling or resulting emission-related failures. At
this stage, there are no controls that would meet this legal standard. Since EPA recognizes and
acknowledges that allowing the introduction into commerce of El 5 will cause or contribute to
the failure of emission control devices or systems in some engines, the Agency cannot grant the
waiver under the plain language of Section 21 l(f)(4).
Organization: Outdoor Power Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0053, pp. 9-10
Comment: EPA must demonstrate how it would rely on and enforce misfueling controls at
individual gas stations to prevent misfueling by consumers. The Agency must substantiate and
explain: 1) how it will assess whether misfueling is occurring and at what rate of non-
compliance; 2) how EPA is taking actions to prevent misfueling to ensure compliance with
Section 21 l(f)(4); and 3) how the misfueling conditions will be enforced on an ongoing basis. So
far EPA has failed to explain how a "self-policing" label would be effective or capable of being
enforced. In similar circumstances, the D.C. Circuit has held EPA's actions to be arbitrary and
capricious when the Agency has failed to articulate how it will enforce an ineffective "self-
policing" requirement to ensure statutory compliance. (See New York v. EPA, 413 F.3d 3, 35
(D.C. Cir. 2005)).
Organization: Association of International Automobile Manufacturers (AIAM)
Page 110 of 126
-------
Document Number: EPA-HQ-OAR-2010-0448-0079, p. 10
Comment: EPA is legally obligated under Section 21 l(f)(4) to adopt misfueling mitigation
efforts beyond labeling given the high environmental and monetary costs associated with
misfueling.
Organization: Pennsylvania Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0058, p. 2
Comment: EPA's proposed rulemaking does not adequately support the waiver in accordance
with Section 21 l(f)(4) of the CAA because it does not go far enough to deter misfueling or to
prevent the fuel from causing or contributing to a failure of a highway or nonroad engine, motor
vehicle, or equipment to meet emission standards over its useful life. Intentional or unintentional
misfueling on the part of motorists could result in damage to vehicle emission control systems
that could lead to higher ambient concentrations of ozone and fine particulate matter and their
precursor emissions. Increased tailpipe emissions would occur at precisely the time that states
would be obligated to meet more stringent National Ambient Air Quality Standards (NAAQS)
for ozone and fine particulate matter, compounding the challenges facing states to attain and
maintain the standards.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 10-11
Comment: The Administrative Procedure Act prohibits agency actions that are "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law" (5 USC 706(2)(A)).
Commenter cites to case law (Motor Vehicle Manufacturers Association v. State Farm; 1983)
and asserts that EPA's grant of a partial El 5 waiver is arbitrary and capricious in light of the
evidence regarding potential emission control system damage. EPA cannot grant a waiver for a
fuel or fuel additive if the Agency does not determine that the fuel will not cause or contribute to
emission control device or system failures. In the NPRM, EPA acknowledges that El5 will cause
harm and that some misfueling will occur despite the proposed labeling scheme, but has
nevertheless granted a partial waiver for E15. In addition, the decision is unsupported by any
concrete evidence. The fact that more recent vehicles contain more advanced emission control
systems than earlier vehicles does not constitute evidence that such vehicles can accommodate
the use of El 5. EPA has not considered a forward-looking El 5 waiver and has disregarded
evidence indicating that problems will arise when vehicles not designed to use El5 are run on
that fuel.
Organization: Historic Vehicles Association (HVA)
Document Number: EPA-HQ-OAR-2010-0448-0076, p. 1
Comment: New information and data were submitted and relied upon by the EPA after the
comment period closed, without opportunity for public comment or review, thereby violating the
Administrative Procedures Act. In addition, the research data relied upon in granting the partial
waiver contained serious scientific and methodological flaws including a statistically
insignificant sample size of older vehicles. Only ten vehicles were used, and they were only
tested for a maximum of 11,000 miles, which is inadequate to determine full useful life.
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, pp. 16-17
Comment: In section VI.C.3 of the NPRM, EPA states that it expects E15 to cause NOx
emissions to increase but that this is acceptable because vehicles will still be able to comply with
Page 111 of 126
-------
their emission standards, given the magnitude of the vehicle compliance margins. EPA needs to
recognize that compliance margins are not uniform across manufacturers (and can vary between
test groups for a particular manufacturer) and needs to evaluate the emissions variation around
the standard (which would allow for an estimate of the number of vehicles that may fail the
standard). EPA's reasoning and non-existent emissions analysis are unacceptable and unfair to
automakers. The waiver represents an impermissible retroactive change in the emission standards
and contributes to the failure of emission control systems (even if the fuel does not directly cause
outright failures). This result is contrary to the meaning of Section 21 l(f)(4). Automakers are
being asked to pay for the emissions impact of El 5 because they have been so successful in
reducing vehicle emissions.
Response:
Commenters raise legal concerns that are almost entirely if not wholly addressed to
EPA's legal obligations under CAA section 21 l(f)(4) in acting on Growth Energy's
waiver request. Commenters reiterate their preferred interpretation of CAA section
21 l(f)(4) and again assert that EPA cannot issue a partial waiver under this provision.
They also argue that EPA did not properly take into account increases in NOx emissions
when issuing a decision on the waiver, and that the conditions included in the waiver do
not meet the legal requirements of CAA section 21 l(f)(4). In addition, commenters seem
to suggest that our authority under CAA section 21 l(c) is modified by CAA section
21 l(f)(4) and EPA's actions under CAA section 21 l(f)(4) by asserting that CAA section
21 l(f)(4) imposes additional requirements on the Agency when it acts under CAA section
21 l(c). For example, commenters assert that when EPA issues a conditional partial
waiver under CAA section 21 l(f)(4), EPA is obligated, by CAA section 21 l(f)(4), to
issue a rule under CAA section 21 l(c) that prevents misfueling and contains requirements
that will ensure that the new fuel or fuel additive does not cause emission-related failures
under CAA section 21 l(f)(4).
To the extent that commenters' assertions address EPA's authority under CAA section
21 l(f)(4), or EPA's El5 October Waiver Decision,16 we are not addressing those
comments here. We are not revisiting the partial waiver decisions in this rulemaking.
EPA's El5 partial waiver decisions, under CAA section 21 l(f)(4), and this misfueling
mitigation measures rulemaking, under CAA section 21 l(c), are separate EPA actions
and we are treating them as separate actions. We acknowledge the interrelatedness of
these separate actions, but that interaction does not make comments on EPA's authority
and prior actions under CAA section 21 l(f)(4) relevant to this separate action under CAA
section 21 l(c). As such EPA is not obligated to and is not addressing these comments on
its partial waiver decisions in the context of this rulemaking. Please see the partial waiver
decisions for a discussion of EPA's CAA section 21 l(f)(4) authority. 75 FR 68094
(November 4, 2010) and 76 FR 4662 (January 26, 2011).
16As of the close of the comment period for the proposed rule (January 3, 2011), EPA had only issued its October
Waiver Decision. The January Waiver Decision was subsequently issued on January 21, 2011. This is why
comments submitted during the public comment period on this proposed rule regarding the E15 partial waiver only
discuss the October Waiver Decision. Since both decisions have now been published, we will refer to either one or
both of the decisions, as appropriate.
Page 112 of 126
-------
To the extent that commenters' assert that CAA section 21 l(f)(4) somehow modifies
EPA's authority or discretion under CAA section 21 l(c), EPA disagrees and we note that
commenters provided no legal argument supporting that assertion. We again emphasize
that the prior El 5 partial waiver decisions and this misfueling mitigation measures
rulemaking are actions taken under separate statutory provisions in the Clean Air Act.
The E15 partial waiver decisions were issued under CAA section 21 l(f)(4) while the
authority for the misfueling mitigation measures rulemaking lies in CAA section 21 l(c).
As discussed in section IV.G of the Preamble, it is important to clarify that the purpose of
this rule is to mitigate misfueling with El5 that lawfully has been introduced into
commerce under the terms of the partial waiver. The partial waiver conditions, and
implementation of the partial waiver conditions, address a closely related but different
issue - when and by whom El 5 blends can be introduced into commerce under the partial
waiver decisions. This rule only addresses misfueling mitigation measures and is issued
under EPA's authority under CAA section 21 l(c). In this rulemaking, EPA did not
propose and is not taking any action under CAA section 21 l(f)(4) with respect to the
partial waivers that were previously issued. For example, in this rulemaking EPA is not
modifying any of the conditions of the partial waivers, or making any decisions as to
whether they have been met. Decisions related to compliance with the conditions on the
partial waivers will be made separate and apart from this rulemaking. It is therefore
inappropriate to conflate these two provisions, and the actions taken under them, in the
manner attempted by the commenters.
Section 21 l(c) establishes EPA's authority and discretion in this rulemaking, not CAA
section 21 l(f)(4). The degree of discretion provided the Agency under CAA section
21 l(c) and the requirements for issuance of a rule under CAA section 21 l(c) are not
modified or changed by CAA section 21 l(f)(4) or EPA's prior actions under that
provision. To the extent commenters raise objections in terms of a failure to satisfy
requirements under CAA section 21 l(f)(4), EPA rejects their arguments as an unfounded
interpretation of CAA section 21 l(c). Issues concerning EPA's authority and actions
under CAA section 21 l(f)(4) are not relevant to this separate rulemaking action under
CAA section 21 l(c). As discussed elsewhere, EPA has justified this rule as a reasonable
exercise of discretion under CAA section 21 l(c). To the extent commenters' objections
do not address EPA's justification for this rule under CAA section 21 l(c), and instead
address EPA's actions under CAA section 21 l(f)(4), they are not relevant to this
rulemaking.
In some cases, commenters' objections include concerns about the adequacy or
effectiveness of the misfueling mitigation measures proposed in this rulemaking. In the
Preamble and the response to comments EPA has addressed the substantive concerns
raised about the proposed misfueling mitigation measures. However, additional
objections beyond these substantive concerns, based on claims concerning CAA section
21 l(f)(4) or EPA's action under CAA section 21 l(f)(4), are rejected for the reasons
discussed above.
2.7.2 E15 Waiver
What Commenters Said:
Page 113 of 126
-------
Organization: Growth Energy
Document Number: EPA-HQ-OAR-2010-0448-0083, p. 1
Comment: Commenter believes, for the reasons set forth in their comment letter, that their
March 9, 2009 application for a waiver for El 5 pursuant to section 21 l(f)(4) of the Clean Air
Act (CAA) and associated submittals to EPA regarding the Waiver Application, including their
Comments on Notice of Clean Air Act Waiver Application to Increase the Allowable Ethanol
Content of Gasoline to Fifteen Percent (July 17, 2009), that are hereby incorporated in these
comments by reference, that EPA should approve use of El 5 for all light-duty motor vehicles,
light-duty trucks, and medium-duty passenger vehicles.
Organizations: Renewable Fuels Association (RFA); National Corn Growers Association
Document Numbers: EPA-HQ-OAR-2010-0448-0088, pp. 1-2; EPA-HQ-OAR-2010-0448-
0074, p. 3
Comment: EPA missed a significant opportunity by only issuing a partial approval of El 5 on
October 13, 2010. None of the data EPA has evaluated to date has suggested any significant
materials compatibility, drivability, or emissions issues associated with the use of El 5. DOE's
completed testing programs have affirmed the efficacy of El 5 in automotive engines. In
addition, the engineering assessment completed for RFA by Ricardo, Inc., "Technical
Assessment of the Feasibility of Introducing E15 Blended Fuel to U.S. Vehicle Fleet, 1994 to
2000 Model years," demonstrated that E15 is equally safe in older vehicles as well. Limiting E15
use to 2007 and newer vehicles only creates confusion for retailers and consumers alike. RFA
firmly believes that E15 is safe and effective in all light duty vehicles and strongly encourages
EPA to move swiftly to amend the approval to reflect the evidence. Another commenter agrees
with RFA, adding that Ricardo found that moving from 10% ethanol in gasoline to 15% will
mean little, if any, change in the performance of older cars and light trucks, those manufactured
between 1994 and 2000. This study, completed for RFA, which analyzed the vehicles
manufactured by six companies and which represent 25% (62.8 million vehicles) of light duty
vehicles on the road today, concluded "that the adoption and use of El 5 in the motor vehicle
fleet from the studied model years should not adversely affect these vehicles or cause them to
perform in a suboptimal manner when compared with their performance using the E10 blend that
is currently available."
Organization: American Coalition for Ethanol (ACE)
Document Number: EPA-HQ-OAR-2010-0448-0087, pp. 1-2
Comment: EPA should approve El5 for all automobiles and light trucks since there has not
been any evidence submitted or testing completed that provides compelling evidence of any
emissions or operability problems associated with the use of an additional five percent ethanol in
vehicle engines. The overwhelming majority of engines in the nation are currently running on a
10% ethanol blend, which has been widely used for many years, including as a test fuel in many
petroleum dispensing equipment and vehicle applications. Commenter provides additional
discussion to support their assertion, noting that nearly all of the comments submitted to
encourage EPA to deny the EPA waiver were unscientific anecdotes or "studies" that detailed
what those opponents believe might happen were an El5 waiver approved.
Organizations: Alliance of Automobile Manufacturers (Alliance); American Petroleum Institute
(API); Chevron ; Historic Vehicles Association (HVA); Marathon Petroleum Company;
Pennsylvania Department of Environmental Protection (PA DEP); Specialty Equipment
Market Association (SEMA)
Page 114 of 126
-------
Document Numbers: EPA-HQ-OAR-2010-0448-0072, pp. 10-11; EPA-HQ-OAR-2010-0448-
0081, pp. Cvr-1, 1-2; EPA-HQ-OAR-2010-0448-0073, pp. 1-2; EPA-HQ-OAR-2010-
0448-0076, p. 1; EPA-HQ-OAR-2010-0448-0056, pp. 1-2; EPA-HQ-OAR-2010-0448-
0058, p. 3; EPA-HQ-OAR-2010-0448-0094, pp. 1-3
Comment: EPA's decision to grant the waiver was premature due to insufficient substantiation.
Ongoing vehicle and infrastructure research must be completed before El5 should be allowed
into the marketplace so that all potential risks can be accurately assessed and adequately
addressed. EPA's October 2010 El 5 partial waiver decision is largely based on limited catalyst
durability testing sponsored by DOE and does not comprehend other testing, including the
broader, still ongoing Coordinating Research Council (CRC) auto/oil research program. API
provides additional discussion regarding the tests being conducted by CRC (i.e., for engine
durability, on-board diagnostics, fuel systems durability, and evaporative emission control
system durability) and asserts that EPA's proposal should not be finalized until at a minimum,
the CRC research is complete. This commenter notes that despite their disagreement with the
partial waiver and the introduction of El 5, given that the waiver has already been granted, it is
now necessary to ensure that El 5 is prevented from being used in non-approved vehicles and
small engines/equipment in order to avoid damage to them. Chevron specifically notes that they
will not authorize El5 to be sold under their trademarked brands until there is: 1) further testing
that proves the risk of damage is low enough to outweigh the need to comply with RFS1: 2) an
improved ability to advise their branded dealer network of an effective deterrent to misfueling; 3)
no discouragement of the use of El 5 in waivered vehicles by automobile manufacturers; and 4)
an improved understanding regarding the extent to which current dispensing and storage systems
and components are compatible with El 5 or require replacement. HVA specifically notes that
available data do not indicate that cars, other types of vehicles, or nonroad engines burning fuel
with an ethanol content over 10% would meet emissions standards over the useful life and as
such, EPA did not adequately comply with the waiver provisions of the Clean Air Act, section
21 l(f)(4). PA DEP noted that the studies upon which EPA relies are based on lab data not real
world information and that EPA needs to perform tests on emission control system components
when they are installed in a vehicle operating on El5.
Response:
These comments do not pertain to this rule, but rather pertain to the El 5 partial waivers.
In acting on the El 5 waiver requests, EPA determined that available information was
sufficient to demonstrate that El5 meets the Clean Air Act section 21 l(f)(4) test for
allowing El5 to be introduced into commerce for MY2001 and new light-duty motor
vehicles and not for other motor vehicles and nonroad vehicles, engines, and equipment.
The technical rationale and review of relevant studies for these determinations are
discussed in detail in the partial waiver decisions (see 75 FR 68094 (November 11, 2010)
and 76 FR 4662 (January 26, 2011)).
What Commenters Said:
Organization: National Marine Manufacturers Association (NMMA); Outdoor Power
Equipment Institute (OPEI)
Document Number: EPA-HQ-OAR-2010-0448-0095, pp. 1-2; EPA-HQ-OAR-2010-0448-
0053, pp.2-5
Page 115 of 126
-------
Comment: EPA should not proceed with trying to bifurcate the fuel distribution system through
a legally flawed and impractical "partial waiver" approach. This approach will substantially
increase public confusion and lead to persistent misfueling and consequent engine performance
failures, emissions control failures, and consumer safety concerns. OPEI adds that EPA's novel
approach is based on the dubious assumption that 300,000 gasoline retailers can somehow
(through a "self-policing" warning label) prevent misfueling of El 5, even though there will
likely be a significant price incentive to purchase these less expensive fuels. EPA has failed to
document or estimate the rate of misfueling that would occur under its "partial waiver" and the
resulting environmental and economic consequences on consumers, owners, and operators, as
well as on engine manufacturers that could become unfairly subject to warranty claims for
damaged products. EPA has also failed to address how consumers would have access to fuels
containing no more than 10% ethanol.
Organizations: Alliance of Automobile Manufacturers (Alliance); Association of International
Automobile Manufacturers (AIAM); Chevron; Engine Manufacturers Association
(EMA); Marathon Petroleum Company; Mercury Marine; National Marine
Manufacturers Association (NMMA); National Petrochemical and Refiners Association
(NPRA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, pp. 3-5; EPA-HQ-OAR-2010-0448-
0079, pp. 4-7; EPA-HQ-OAR-2010-0448-0073 pp. 1-2; EPA-HQ-OAR-2010-0448-0082,
p. 11; EPA-HQ-OAR-2010-0448-0056, pp. 1-2; EPA-HQ-OAR-2010-0448-0057, p. 2;
EPA-HQ-OAR-2010-0448-0095, p. 4; EPA-HQ-OAR-2010-0448-0067, pp. 1-2
Comment: Misfueling is bound to occur simply because EPA chose to bifurcate the approved
El 5 market, and the new fuel is incompatible with most vehicles in the fleet. EPA has freely
admitted that El5 is incompatible with most gasoline-powered engines in use by consumers
today. Yet it is inevitable that if E15 is made available at retail, many consumers will misfuel -
putting the wrong gasoline into the wrong engine. Misfueling may occur intentionally, due to
price differential or a quality perception, or unintentionally, due to confusion or inattention.
Alliance notes that while it is true that previous introductions of new fuels (e.g., unleaded,
reformulated, low sulfur, etc.) also faced bifurcated markets and misfueling potential, there is a
critical distinction because in the prior cases, the new fuels were required only for new vehicles,
which were a small fraction of the market and "backward compatible" for older vehicle use. In
other words, all vehicles (old and new) could use the new fuel without adverse consequences,
whereas the opposite is true for E15. Alliance, NPRA, NMMA, AIAM, and Mercury Marine
assert that such misfueling cannot be avoided simply with a dispenser label and that consumers
rely upon their government to ensure that the products offered are safe for the intended use.
Commenters provide additional discussion on this issue and note that EPA's partial waiver
decision ignores this responsibility, allowing a product to be placed into the stream of commerce
based on EPA's assurances that the label is ample warning when prior history proves that a label
alone is not enough. EPA should postpone the introduction of El 5 until uniform labeling
requirements as well as a more comprehensive and robust misfueling prevention strategy can be
developed and implemented.
Response:
EPA detailed its legal basis for partially granting a partial waiver request using its
authority under the Clean Air Act in the October Waiver Decision {see 75 FR 68094
(November 4, 2010)). EPA discusses the effectiveness of today's final misfueling
Page 116 of 126
-------
mitigation approach in Preamble section III.F and the labeling requirements in section
III.B. EPA also addresses the issue of consumers having access to fuels containing no
more than 10 vol% ethanol in section III.F.2.d of the Preamble. See also section 2.7.1 of
this document for further discussion.
What Commenters Said:
Organizations: Association of International Automobile Manufacturers (AIAM); Engine
Manufacturers Association (EMA); Historic Vehicles Association (HVA); National
Marine Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0079, pp. 2-6; EPA-HQ-OAR-2010-0448-
0082, pp. 1-3; EPA-HQ-OAR-2010-0448-0076, p. 1; EPA-HQ-OAR-2010-0448-0095, pp. 1-3
Comment: The fuel waiver process under Section 21 l(f)(4) never contemplated a partial
approach. EPA's decision to grant a "partial waiver" allowing the introduction of El 5 for use in
some vehicles, while specifically prohibiting its use in other vehicles and products, creates a
problematic bifurcated fuel program whereby EPA must ensure against misfueling in order to
comply with the CAA. The misfueling mitigation program as currently proposed will not
effectively prevent unintentional and intentional misfueling, and the introduction of E15 into
commerce will therefore not satisfy the strictures of Clean Air Act Section 21 l(f)(4). NMMA
adds that petitioners clearly failed to meet the requisite statutory burdens outlined under section
21 l(f)(4) to justify a decision by EPA to grant a waiver for E15. EMA notes that the misfueling
regulations proposed in the NPRM fail to impose the restrictions and enforcement initiatives
necessary to support the bifurcated fuel system created by EPA's decision and as such,
misfueling will occur and EPA will not be able to fulfill its obligations under the CAA. EPA
must withdraw the NPRM, rescind its approval of the El 5 partial waiver, and initiate a
comprehensive rulemaking process that provides fuel and fuel consuming product certainty,
satisfaction of the RFS2 requirements, and adequate lead-time.
Response:
See section 2.7.1 of this document for a discussion of the Clean Air Act Section
21 l(f)(4). EPA discusses the effectiveness of today's final misfueling mitigation
approach in Preamble section III.F.
What Commenters Said:
Organization: National Petrochemical and Refiners Association (NPRA)
Document Number: EPA-HQ-OAR-2010-0448-0067, pp. 12-13
Comment: The Agency approved El 5 partially and conditionally. The fourth condition was the
requirement for fuel and fuel additive manufacturers to each submit a plan to EPA, for EPA's
approval, prior to the introduction of E15 into commerce (75 FR 68150). This requirement is
reasonable in advance of the rule, but should be removed when the El 5 misfueling mitigation
rule is promulgated because it would be unnecessary and could be inconsistent with the El 5
misfueling mitigation final rule. For example, a condition includes language for the retail pump
label and participation in the retail survey that could be revised in the El 5 misfueling mitigation
final rule.
Response:
Page 117 of 126
-------
EPA does not concur with this comment. Please see the Preamble section IV.G for more
information concerning how misfueling mitigation plans submitted to EPA under the
waiver conditions relate to the provisions of today's final rule.
2.7.3 Federal Preemption
What Commenters Said:
Organizations: Engine Manufacturers Association (EMA); Outdoor Power Equipment Institute
(OPEI)
Document Numbers: EPA-HQ-OAR-2010-0448-0082, p. 9; EPA-HQ-OAR-2010-0448-0053,
pp. 18-19
Comment: Manufacturers must be able to produce, distribute, and sell "50 state" products which
are designed to run on a uniform and stable fuel supply. Minnesota has already adopted
legislation that could require (in 2013) all on-road motor vehicles (regardless of model year) to
be fueled by E20. The Minnesota law does not include any of the warning labels, any product
transfer, or any of the compliance surveys in the proposed federal regulation. However, in its
misfueling proposal, EPA states that "the Agency is not aware of any state rules or laws that
would be pre-empted by today's rule if adopted" (75 FR 68049). OPEI specifically notes that
EPA reaches this conclusion by apparently misapplying a narrow interpretation of the scope of
pre-emption established under Section 21 l(c)(4)(A) of the CAA, which pre-empts states from
prescribing or enforcing controls or prohibitions for fuel components or characteristics if EPA
has prescribed a control or prohibition applicable to such characteristic or component. This
commenter adds that EPA's Preamble discussion creates the misperception that states can
circumvent the spirit and intention of Section 21 l(c)(4)(A) by characterizing their conflicting
ethanol mandates or requirements for a purpose other than "motor vehicle emission control." In
the final rule, EPA should clarify that state law cannot conflict with or undermine any of the
federal control requirements and should specifically prohibit states from undermining the
effectiveness of the EPA warning label through requiring conflicting or distracting ethanol
labels.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 9
Comment: It is imperative that national requirements for both fuel properties and fuel pump
labeling preempt states or other localities from implementing different requirements for fuels and
fuel pump labels. In addition, EPA must resolve both jurisdiction and content control on a
federal level with the FTC. Even the best misfueling control plan will fail if the message
conveyed to consumers is not consistent between stations, pumps, and states. EPA's interest in
preventing misfueling transcends either the FTC or state's interests with respect to the
importance of creating a consistent, understandable, and clear labeling program.
Organizations: Alliance of Automobile Manufacturers (Alliance); National Marine
Manufacturers Association (NMMA)
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 13; EPA-HQ-OAR-2010-0448-0095,
pp.11-12
Comment: A consistent, nationwide labeling scheme is required to prevent widespread
misfueling. The single national federal label design scheme should be mandatory, with no
Page 118 of 126
-------
flexibility for alternate designs. Alliance notes that the federal government should encourage
states to withdraw any conflicting state-mandated labels or force them to do so. NMMA
specifically states that they agree with EPA's interpretation of the CAA that any state is
preempted from enforcing a rule allowing more than 15% ethanol to be used in gasoline, or
allowing the use of El 5 in any vehicle or engine in which EPA has prohibited the use of such
fuel to achieve additional emission reductions. NMMA also agrees that any state fuel labeling
programs related to El5 would be preempted by Clean Air Act section 21 l(c)(l)(A).
Organizations: Alliance of Automobile Manufacturers (Alliance); Association of International
Automobile Manufacturers (AIAM); ECHO, Inc.; Environmental Working Group
Document Numbers: EPA-HQ-OAR-2010-0448-0072, p. 5, 13; EPA-HQ-OAR-2010-0448-
0079, p. 8; EPA-HQ-OAR-2010-0448-0033, p. 5; EPA-HQ-OAR-2010-0448-0071.1, p.
2
Comment: A single, consistent, and integrated federal approach to labeling and misfueling
avoidance is necessary and this approach should pre-empt individual state ethanol initiatives that
might conflict with or decrease the effectiveness of the federal effort. Alliance adds that EPA has
chosen to use Section 21 l(c) of the CAA so it may preempt state regulation of these fuels, and
there is no reason why this rule should not also preempt state labeling in this area.
Response:
As explained in the Preamble section III.B, today's rule establishes national labeling
requirements so that consumers can readily recognize and heed information about what
vehicles can, and what vehicles, engines and equipment cannot, fuel with El 5. We have
worked with FTC staff to design El 5 labels that work with existing and potential FTC
labels for ethanol blends. While today's rule allows fuel marketers to develop and seek
approval of alternative labels, we have made clear that such labels may differ from the
required E15 label in only limited respects so that general consistency of E15 labels is
maintained. Today's rule also establishes other national misfueling mitigation measures
to further reduce the potential for misfueling and the emission consequences that could
result.
The Clean Air Act expressly addresses the extent to which EPA fuel regulations preempt
state fuel regulations, as explained at proposal and summarized in section III.H of the
Preamble of today's final rule. CAA section 21 l(c)(4)(A) of the CAA prohibits states and
political subdivisions from prescribing or attempting "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 21 l(c)(l). This prohibition does not apply to
controls that are identical to prohibitions or controls adopted by EPA. CAA section
21 l(c)(4)(A)(ii). Also, this prohibition applies to all states except California. CAA
section 21 l(c)(4)(B). Today's action is based on the authority in section 21 l(c)(l), as
well as under sections 208 and 114 of the Act. As such, today's action leads to express
preemption under section 21 l(c)(4)(A) of nonidentical actions by states other than
California that prescribe or enforce controls or prohibitions respecting ethanol content in
gasoline in order to control motor vehicle emissions,. Because section 21 l(c)(4)(A)
applies only to controls or prohibitions respecting any characteristics or components of
Page 119 of 126
-------
fuels or fuel additives for use in motor vehicles or motor vehicle engines, i.e., on road or
highway vehicles17, a state control or prohibition respecting ethanol content in fuel or
fuel additives would be preempted only if it is "for purposes of motor vehicle emission
control18." Further, under section 211(c)(4)(C) states, other than California, may
prescribe and enforce nonidentical measures if they seek and obtain EPA approval of SIP
revisions containing such control measures. As a general matter, EPA believes that
questions regarding preemption of specific state fuel controls and determination should
be addressed in the context of a specific SIP rulemaking. Through this procedure, the
specific circumstances involved can be considered.
Aside from the express preemption in section 21 l(c)(4)(A), courts may consider whether
a state control for fuels or fuel additives is implicitly preempted under the supremacy
clause of the U.S. constitution. Courts have determined that a state law is preempted by
federal law where the state requirement actually conflicts with federal law by preventing
compliance with the federal requirement, or by standing as an obstacle to
accomplishment of congressional objectives. A court could thus consider whether a state
standard respecting ethanol content that is not subject to the express exemption
provisions of section 21 l(c)(4)(A) nevertheless is preempted because it meets the criteria
for conflict preemption.
With respect to state laws concerning E20, we note that E20 is not substantially similar to
the fuel used to determine vehicle and engine compliance with emission standards and so
may not be sold unless and until it receives a waiver under CAA section 21 l(f). The
partial waivers EPA recently issued are for gasoline-ethanol blends containing more than
10 vol% ethanol and up to 15 vol% ethanol, not more than 15 vol% ethanol. Also, E20
needs to be registered under the CAA before it can be sold. CAA section 21 l(a)
authorizes EPA to designate fuels and fuel additives and requires manufacturers of such
fuels and fuel additives to register them with EPA prior to introduction into commerce.
EPA has designated motor vehicle gasoline and diesel fuels and their additives in the
regulations at 40 CFR Part 79. At this time, EPA has yet to register any such fuels or fuel
additives that contain more than 10% ethanol.
2.7.4 Energy Policy
What Commenters Said:
Organization: Engine Manufacturers Association (EMA)
17 Section 21 l(c)(4)(A) does not apply to state controls or prohibitions respecting characteristics or components of
fuel or fuel additives used by nonroad engines or nonroad vehicles. See for example 69 FR 39072 (June 29, 2004).
We have also explained, however, "that a state control that regulates both highway fuel and nonroad fuel is
preempted to the extent that the state control respects a characteristic or component of highway fuel regulated,"
under section 21 l(c)(l) by EPA. 69 FR 39073.
18 See Oxygenated Fuels Ass'n v. Pataki, 158 F. Supp.2d 248 (N.D.N.Y 2001) (State law addressing groundwater
pollution by MTBE "is not a control or prohibition respecting any characteristic or component of a motor vehicle
fuel or fuel additive for purposes of motor vehicle emission control," under section 21 l(c)(4)); In re MTBE Prod.
Liab. Litig., 175 F.Supp.2d. 593, 612 (S.D.N.Y. 2001) (State lawsuits were for purposes of protecting groundwater
supply from MTBE contamination and not "for purposes of motor vehicle emissions control"). See also Oxygenated
Fuels Ass'n, Inc. v. Davis, 331 F.3d 665 (9th Cir. 2003).
Page 120 of 126
-------
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 4-6
Comment: There are various components of the current energy policy underlying the proposed
regulation. Congress and EPA have passed and adopted a slew of fuel-focused legislation,
regulations, and standards with the stated goal of reducing our dependence on petroleum-based
fuels, which include EPA's RFS, Section 21 l(f)(4) of the CAA, the Energy Independence and
Security Act of 2007 (EISA), EPA's RFS2, and the E15 Waiver Decision. In the context of this
comment, commenter provides additional discussion of each of these components, stating among
other points that: 1) for RFS, the fixed volume renewable fuel requirements exacerbated blend
limits as other EPA fuel efficiency programs result in projected blend walls for El5, E20, etc.
over the life of the RFS program; 2) the waiver authority under Section 21 l(f)(4) was intended to
be used only as a full approval or denial of a particular fuel (not a partial waiver); and 3) the
production requirements under RFS2 (as a direct response to EISA) were not linked to overall
petroleum fuel usage and therefore created discord between the RFS2 requirements and EPA's
other programs. Commenter also provides additional discussion on why this latest effort is quite
different from the unleaded gasoline and ULSD fuel programs - namely, those programs were
adopted by EPA as the long term fuel available, with the intent that it would ultimately fully
replace another existing fuel (not the case with El5).
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, pp. 3-4, 15
Comment: EPA should not proceed with the proposed regulation because it is based on the false
premise that two gasoline blends can and will coexist in the marketplace: EO-E10 and E15.
However, El5 is only a stop gap measure aimed at delaying the RFS2-derived blend wall for a
relatively short period of time. EPA could possibly receive a waiver request for E20 even before
the proposed rule is implemented. This piecemeal approach to legislation is inefficient and
costly, and as such the proposed rule should be revised in order to present a comprehensive
solution. If higher blends continue to be approved one at a time, the confusion in the marketplace
will grow and it will be difficult for consumers to know which fuel is appropriate. Commenter
provides additional discussion on this issue and asserts that until EPA proposes regulations that
provide a logical implementation of the wide range of fuels and products compatible with such
fuels, EPA's rulemakings will fail to fulfill the Agency's obligations under the Energy
Independence and Security Act of 2007.
Organization: Engine Manufacturers Association (EMA)
Document Number: EPA-HQ-OAR-2010-0448-0082, p. 6
Comment: The Energy Independence and Security Act (EISA) and RFS2 regulations call for
significant increases in renewable fuel content, which were anticipated to be addressed through
the implementation of E85. However, a combination of the renewable fuel content requirements,
the lack of infrastructure for E85, and the general rejection of E85 by consumers is expected to
result in an inability to comply with both EISA and RFS2 (E10 maximum for conventional
gasoline) and the RFS2 renewable fuel volume requirements (commonly referred to as the "blend
wall"). EPA's partial approval of the E15 request is expected to have a limited effect on the blend
wall problem, resulting in a slight delay but no solution. This ongoing problem is expected to
require further EPA action regarding both fuel waivers and related misfueling control proposals.
Response:
Page 121 of 126
-------
EPA acknowledges commenters' observations about current federal energy policy and
fuel requirements and the implications for fuel supply and use. The Energy Policy Act of
2005 and the Energy Independence and Security Act of 2007 (EISA) added the federal
RFS program to the Clean Air Act and specified volume mandates intended to
significantly increase the amount of renewable fuels in the nation's transportation fuel
supply and reduce our reliance on petroleum-based fuels. Under those laws, EPA has
several implementation responsibilities, including acting on waiver requests by
businesses for fuels that businesses might choose to use to meet RFS requirements. We
responded to the El 5 waiver request by granting partial waivers based on our
determination that available test data and other information demonstrated that the CAA
section 21 l(f)(4) test for fuel waivers had been met for MY2001 and newer light-duty
motor vehicles. We also placed conditions on those waivers to mitigate potential
misfueling of vehicles, engines and equipment not covered by the waivers. We believe
we have authority to grant partial waivers with such conditions under section 21 l(f)(4)
and we discussed our rationale in the October Waiver Decision (see 75 FR 68094
(November 4, 2010)). The purpose of today's rule is to further mitigate misfueling of El 5
in vehicles, engines, and equipment not covered by the partial waiver decisions. EPA also
believes that the ULSD program provides a useful model for the development of today's
misfueling mitigation program; please see the Preamble section III.F.l for more
discussion. We plan to work with stakeholders as El 5 enters the market to monitor
developments and identify any issues that may develop. Experience with the transition to
El5 may also help inform and guide future fuel transitions.
What Commenters Said:
Organization: National Association of Convenience Stores (NACS) and Society of Independent
Gasoline Marketers of America (SIGMA)
Document Number: EPA-HQ-OAR-2010-0448-0055, p. 8
Comment: In the 112th Congress, EPA should aggressively advocate for legislation such as HR
5778, the Renewable Fuels Marketing Act. This bill would have: 1) insulated retailers compliant
with an EPA labeling regime from liability for violations caused by consumer misfueling; 2)
directed EPA to issue guidelines to determine whether retail petroleum equipment is compatible
with (and thus, may be used to safely and lawfully sell) motor fuels, providing retailers a path to
have existing equipment recertified to sell El 5; and 3) expedited the certification of new devices
as compatible with new fuels, increasing the inventory of certified compatible equipment.
Enacting a similar piece of legislation would encourage retailers to sell El 5, expediting its
introduction into commerce.
Response:
Response to legislative proposals is beyond the scope of this rulemaking. As discussed in
Preamble section IV.E, we believe the approach taken to liability for violations at the
retail level in other EPA fuel programs is appropriate for the El 5 misfueling mitigation
program being promulgated today. EPA also expects to issue guidance soon on
determining whether underground storage tanks are compatible with El5.
Page 122 of 126
-------
2.8 E15 Emissions and Anti-backsliding
What Commenters Said:
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 2
Comment: In the near term, EPA should reduce sulfur levels by 5-10 ppm for gasoline
blendstocks used for El5 to offset any NOx increase. This can be readily accomplished by
virtually all U.S. refiners with slight adjustments to desulfurization residence times, operating
pressures, and catalyst density.
Organization: American Lung Association (ALA)
Document Number: EPA-HQ-OAR-2010-0448-0097, p. 1
Comment: The states and cities are challenged now to provide protection to public health under
the current national air quality standards for ozone, and additional emissions from mid-level
ethanol would likely worsen that problem. Therefore, until sufficient evidence exists to show that
mid-level ethanol would not add emissions, the use of El 5 should not be approved in heavy duty
gasoline engines and vehicles, motorcycles, nonroad engines, vehicles and equipment. For the
same reasons, use of E15 should be prohibited for MY2001-2006 motor vehicles.
Organization: National Association of Clean Air Agencies (NACAA)
Document Number: EPA-HQ-OAR-2010-0448-0077, p. 4
Comment: NOx emissions are known to increase with increasing ethanol concentration in
gasoline. In its analysis, EPA acknowledges that NOx emissions could increase 14% compared
to baseline fuel use, based on the midpoint of the CRC study of E10 and E20. A core assumption
made by EPA is that there is a 50% compliance margin for NOx emissions control systems used
in MY2007 and later vehicles, and that such a compliance margin is sufficient to offset any risk
of higher NOx emissions associated with E15. However, the EPA analysis is based on the
drivability and emissions test data for 19 vehicles. Such a small data set is an insufficient basis
on which to make such a critical regulatory judgment. EPA's decision to forego any NOx
mitigation as part of the implementation of the E15 waiver is therefore flawed, inconsistent with
known and submitted data by numerous auto manufacturers and in direct contradiction with
underlying criteria specified in the CAA and the National Environmental Policy Act (NEPA).
For example, EPA failed to consider changing the gasoline feedstock through the use of lower
sulfur gasoline, which can offset expected NOx increases. This offsetting strategy is at the heart
of the NOx mitigation reflected in California's Phase 3 gasoline regulation. EPA should therefore
strongly consider similar changes to federal gasoline specifications to achieve full direct
mitigation of the NOx increase associated with additional low-level ethanol blend use.
Commenter adds that higher NOx and HC tailpipe emissions may occur in use due to the
possible accelerated deterioration of catalysts resulting from El 5 use. These effects have been
documented by several auto manufacturers, which have found lower thermal degradation
margins in three-way catalyst systems due to the higher combustion temperature and higher
exhaust gas temperature associated with El 5 compared to E10. Although in its analysis EPA
suggests that such changes may not affect the certification status of in-use vehicles, actual in-use
emissions may still increase compared to vehicles operating on E10. EPA's decision should
Page 123 of 126
-------
ensure that no backsliding occurs from in-use emission levels, regardless of the certification
status of in-use vehicles.
Response:
EPA is considering changes to fuel standards in a future rulemaking designed to allow for
more efficient emissions controls and fulfill the anti-backsliding requirements that were
incorporated into the Clean Air Act by the Energy Independence and Security Act of
2007 (Clean Air Act sections 21 l(q) and (v)) to address potential emissions effects from
increased national renewable fuel use. Please see Preamble section IV.H for more
discussion.
What Commenters Said:
Organization: New York State Department of Environmental Conservation (NY DEC)
Document Number: EPA-HQ-OAR-2010-0448-0069, p. 2
Comment: Commenter recommends five longer term strategies that EPA should pursue in an
effort to avoid emissions backsliding: 1) Adjust certification testing requirements for tailpipe and
evaporative emission standards using El 5 rather than E10; 2) Require gasoline blendstock
adjustment to ensure no, or minor, change in the full distillation curve; 3) Update EPA guidance
to original equipment manufacturers regarding the sensitivity of OBD systems to 0.04-pounds-
per-square-inch (psi) increases in fuel vapor pressure. (In California, this sensitivity is even
greater, as OBD failures are triggered based on 0.02-psi changes.); 4) Plan additional testing
beyond that already underway at DOE (EPA should address potential material compatibility
concerns and conduct long-term degradation studies to identify any problems with the prolonged
use of El 5 - real world aging of catalysts, rather than accelerated bench testing, will be
important in this regard); and 5) Provide states with clear guidance on quantifying emissions
from El5, including updates to the Complex Model as well as other models such as Nonroad
2008, NMIM 2008 and MOVES.
Response:
See Preamble section IV.H for a discussion of EPA actions regarding potential emission
increases due to El 5.
What Commenters Said:
Organization: Alliance of Automobile Manufacturers (Alliance)
Document Number: EPA-HQ-OAR-2010-0448-0072, p. 17
Comment: EPA has declined to estimate the overall impact of E15 on the vehicle emissions
inventory, preferring instead to defer an analysis until it conducts the anti-backsliding study
required under CAA Section 21 l(v). With this decision, EPA is shirking its duty because by the
time this study is conducted, El 5 is likely to be entrenched in the marketplace just when the
nation is gearing up to meet a new, tighter ambient air quality standard for ozone.
Our response:
Page 124 of 126
-------
As discussed in Preamble section III.G, there are several regulatory and practical issues
that will affect the timing and pace of the introduction of El 5 into the marketplace. Thus,
any predictions about when or if El 5 would be the primary fuel in the marketplace are
not certain. In our view, E15 is likely to enter the market in a few areas and gradually
expand to other areas over time. As explained above, EPA is addressing the emissions
impact of renewable fuels as part of its anti-backsliding analysis and related rulemaking.
We believe those efforts can timely address emissions issues associated with ElS's
introduction into the fuel marketplace.
What Commenters Said:
Organizations: Environmental Working Group; Mid-American Regional Council (MARC); Air
Quality Forum (AQF); National Association of Clean Air Agencies (NAC AA)
Document Numbers: EPA-HQ-OAR-2010-0448-0071, pp. 1-2; EPA-HQ-OAR-2010-0448-
0075, pp. 1-2; EPA-HQ-OAR-2010-0448-0077, pp. 1-2, 4-5
Comment: Allowing the use of E15 will result in emissions increases, which will compromise
the ability of state and local air agencies to achieve and sustain clean air and public health goals.
Use of E15 will lead to increased emissions and other adverse effects with regard to fuel
properties (e.g., vapor pressure, distillation characteristics). NACAA, notes, as an example, that
the use of E15 results in the increase in oxygen content of gasoline from 2.7% (for E10) to 5.5%,
and adds that such a fuel mixture change when used in MY2007 and later vehicles covered by
EPA's recent waiver decision (as well as other model year vehicles) can affect emission control
system efficiency and durability, warranty status, and the operation of OBD systems and also
lead to drivability impacts and increased tailpipe and evaporative emissions of NOx and HC.
AQF acknowledges the importance of alternative energy, but asserts that the increase in NOx
emissions from El 5 may overshadow the decrease in VOC emissions and create the potential for
backsliding even if existing RVP regulations remain in place. EPA has not fully addressed or
mitigated these types of issues in its recent waiver decision and the impacts may be further
compounded, and left unaddressed, by future decisions the Agency will make regarding
additional waivers for El 5. This commenter provides significant additional discussion on these
issues, including specific recommendations.
Organization: Pennsylvania Department of Environmental Protection (PA DEP)
Document Number: EPA-HQ-OAR-2010-0448-0058, p. 5
Comment: The adverse impact of E15 misfueling on air quality may exceed EPA's estimates.
EPA needs to further study the effect of using El 5 on ambient concentrations of air pollutants.
Combined standards for HC+NOX have been imposed to allow greater compliance flexibility for
manufacturers, but it is difficult to estimate the increases and decreases in NOX and HC,
respectively. Increased emissions of NOX may overpower the positive effect on decreased
emission of HC when combusting E15 instead of E10. Although EPA notes that the impact of
El 5 on the combined HC+NOX standard would be small, the availability of El 5 and the real
potential for motorists misfueling and harming their emissions control equipment may hinder the
ability to attain and maintain the NAAQS to a greater extent than assumed by EPA. Commenter
provides additional discussion on this issue and asserts that EPA should make a serious effort to
determine what percentage of control systems will be damaged from misfueling with El 5 and the
final effect on air quality.
Response:
Page 125 of 126
-------
EPA agrees that El 5 may lead to higher emissions in some vehicles, engines, and
equipment. EPA carefully considered the impact that El 5 would have on the emission
controls of all vehicles, engines, and equipment in the partial waiver decisions. EPA
determined that MY2001 and newer light-duty motor vehicles would not experience
adverse effects on emissions controls that would cause or contribute to vehicles failing to
meet emissions standards over their full useful lives. However, EPA determined that El 5
would adversely affect the emissions of nonroad vehicles, engines, and equipment as well
as MY2000 and older motor vehicles (including all heavy-duty gasoline-powered motor
vehicles) and denied the waiver. Additionally, EPA is prohibiting in today's rule the use
of gasoline-ethanol blended fuels containing greater than 10 vol% ethanol content in
vehicles, engines, and equipment not covered by the partial waiver decisions. EPA
believes that the rule will help mitigate misfueling and thus minimize those adverse
emissions effects. Furthermore, as discussed in section IV.H of the Preamble, EPA is
undertaking analyses and regulatory action to address potential adverse air quality
impacts resulting from the increased renewable fuel use mandated in the Energy
Independence and Security Act of 2007.
Page 126 of 126
------- |