Office of Transportation EPA420-S-04-003
and Air Quality April 2004
Analysis of and Action on
New York State Department of
Environmental Conservation's
Request for a Waiver of the
Oxygen Content in Federal
Reformulated Gasoline
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EPA420-S-04-003
March 2004
of on York
of
for a of the in
Transportation and Regional Programs Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
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I. INTRODUCTION
The New York RFC area includes a severe ozone non-attainment area required
under the Clean Air Act to use reformulated gasoline (RFC) containing 2% oxygen by
weight, unless that oxygen content requirement is waived by EPA. New York has
requested a waiver of the RFC oxygen content requirement for the New York RFC
area.1 This document discusses the Clean Air Act oxygen content requirement, EPA's
authority to grant waivers of that requirement, the basis for New York's request for a
waiver, and the basis for EPA's determination to deny New York's request. Additional
information is available in an accompanying Technical Support Document.
A. The RFG Oxygen Content Requirement and EPA's Waiver Authority
Under the Clean Air Act ("CAA" or "the Act"), 42 U.S.C. § 7545(k)(2)(B), nine
geographic areas that were in non-attainment status in the 1987-1989 time period for
the ozone National Ambient Air Quality Standard (NAAQS), as well as other areas that
subsequently are reclassified as severe ozone nonattainment areas, are required to use
reformulated gasoline. CAA §§211 (k)(10)(D), 211 (k)(5). Certain other ozone non-
attainment areas may "opt-in" to the RFG program as a means of addressing their
ozone non-attainment problems. CAA §211 (k)(6). The Act specifies certain gasoline
content requirements for RFG. CAA § 211 (k)(2). Of particular importance for New
York's request are the Act's requirement for the oxygen content of RFG and EPA's
authority to waive that requirement.
Section 211 (k)(2)(B) of the Act provides:
The oxygen content of the [reformulated] gasoline shall equal or exceed
2.0 percent by weight (subject to a testing tolerance established by the
Administrator) except as otherwise required by this Act. The Administrator
may waive, in whole or in part, the application of this subparagraph for any
ozone nonattainment area upon a determination by the Administrator that
compliance with such requirement would prevent or interfere with
attainment by the area of a national primary ambient air quality standard.
Thus, EPA has discretion under this section to waive the oxygen content
requirement if it determines that compliance with the oxygen content requirement would
interfere with attainment of a primary National Ambient Air Quality Standard (NAAQS) in
an ozone nonattainment area. This section requires, at a minimum, that an applicant
seeking a waiver must clearly demonstrate the impact of a waiver for each applicable
NAAQS. See Daws v. EPA, 336 F.3d 965, 972-973 (9th Cir. 2003)(affirming EPA's
The term "New York RFG area" as it is used in this document means the New York State
portion of the New York City Consolidated Metropolitan Statistical Area (CMSA) and the
opt-in area of Dutchess County, New York.
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evidentiary standard in the context of EPA's denial of California's waiver request.)2 EPA
may take into consideration other available information in evaluating a request for a
waiver.3
A key threshold question before the Agency when considering such a request is
whether there has been a clear demonstration of the air quality impacts of a waiver of
the RFC oxygen content requirement. To address the air quality impacts of a waiver,
one must, as a technical matter, consider the gasoline fuel properties of the RFC that
would likely be sold in the area with and without an oxygen content waiver. From this
information, one must then evaluate the impact on emissions of pollutants that a change
in fuel properties would produce. The expected change in emissions of pollutants
associated with those different RFC blends is needed to evaluate the impact of a waiver
on attainment of a NAAQS. All relevant categories of emissions need to be considered.
EPA cannot make a determination of interference with or prevention of
attainment of any NAAQS due to oxygenates unless the projected impacts of a waiver
are analyzed for each applicable NAAQS. Absent such an analysis, EPA is not able to
determine whether a waiver would aid, hinder, or have no effect on attainment of a
NAAQS.
B. New York's waiver request
In a letter dated January 6, 2003 from New York State Department of
Environmental Conservation (DEC) Commissioner Erin Grotty to then Administrator
Whitman, New York officially requested a waiver under CAA Section 211 (k)(2)(B) from
the federal RFC oxygen content requirement for the New York RFC area.4 The
submission stated that because MTBE would be banned in the State of New York
beginning January 1, 2004, and because of the Act's oxygen requirement for RFC,
ethanol would be used as an oxygenate in the RFC areas in New York State. DEC
asserted that the use of ethanol as a replacement for MTBE in RFC would result in an
increase in Volatile Organic Compounds (VOCs), and oxides of nitrogen (NOx) during
the summer ozone season. DEC further argued that "increases in these pollutants will
immediately interfere with New York's ability to demonstrate reasonable progress to
attain and maintain the federal ozone standard..."
EPA determined that DEC'S submission did not contain sufficient information and
Because New York's submission failed to address the requirements in the statute, EPA
2 Docket A-2000-10, IIl-A-1.
3 For further discussion of EPA's interpretation of the authority to grant a waiver under
section 211(k)(2)(B), see Appendix A of [Docket A-2000-10, ll-B-1]
4 Docket OAR-2003-0004, II.D.1.
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notified NY that technical and supporting information was needed for EPA to evaluate
the merits of the request. In a letter to DEC dated April 1, 2003, EPA requested
clarification and additional information.5
A subsequent submission dated December 12, 2003 from DEC acknowledged
EPA's April 1, 2003 request for additional information.6 DEC provided some additional
information in support of its waiver request with this correspondence, but generally did
not provide the information requested by EPA, for reasons set forth in its letter.7
II. EPA'S ANALYSIS OF THE INFORMATION THAT NEW YORK DEC SUBMITTED
A. Basis for DEC'S request for a waiver
DEC's request for a waiver is based primarily on its contention that use of ethanol-
oxygenated gasoline will interfere with attainment of the ozone NAAQS because:
The NOx and VOC emissions performance of ethanol-oxygenated RFC
will be worse than the emissions performance of the MTBE-oxygenated
RFC supplied to New York prior to its MTBE ban.
Commingling and permeation resulting from ethanol use will increase VOC
emissions compared to MTBE-oxygenated RFC.
Ethanol-oxygenated RFC will not provide the NOx reduction benefits
expected under the RFC program because the Complex Model does not
fully capture the effects of oxygenates on vehicle emissions of NOx.
Relaxation of the RFC VOC performance standard for 10 percent ethanol
blends, or granting of 1 psi volatility waiver for 10 percent ethanol blends
could increase VOC emissions.
The transport of ethanol into the New York area would cause an increase
in emissions due to additional ships and barges transporting ethanol into
the New York area for adding to RFC at terminals.
5 Docket OAR-2003-0004, Document II.C.1.
6 Docket OAR-2003-0004, Document II.D.6.
7 DEC's stated reasons for not providing the information requested by EPA, and EPA's
responses to those statements (that are not otherwise addressed in the TSD), are set
forth in Appendix B to the Technical Support Document.
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B. Major limitations in the information submitted by DEC
As discussed above, a key threshold technical issue in evaluating a waiver
request is to evaluate the emissions impact of a waiver. This is needed to clearly
demonstrate whether a waiver would aid, hinder, or have no effect on attainment of a
NAAQS. Certain information is required in order to make a quantitative estimate, or
even a reasonably certain qualitative directional estimate, of the emissions changes that
a waiver might produce. This information includes knowledge of certain emission-
related properties of the reformulated gasoline (RFC) that would be supplied to New
York with and without a waiver. Models relating these fuel properties to vehicle
emissions would then be used to estimate percent differences in emissions between the
"no waiver" and "waiver" conditions. Additionally, on-road and off-road gasoline
emission inventory data are needed in order to convert relative (%) changes to absolute
(tons/day) changes. Inventory information may be necessary even to perform a
directional analysis. The need for this information is described in detail in the
accompanying Technical Support Document.
New York's submissions included almost no information or analysis of the
expected fuel properties of RFC with and without a waiver. New York did not provide
sufficient information or analysis to show either quantitative or directional estimates of
the emissions differences between "no waiver" and a "waiver," for the pollutants
contributing to ozone formation, NOx, VOCs and CO. While New York's submissions
did contain quantitative estimates of certain VOC emission changes that could be
associated with ethanol use compared to MTBE use, these estimates were of little use
even to estimate the net directional change that a waiver would produce in VOC
emissions for several reasons which are discussed in the TSD.8 Changes in NOx
emissions were not quantified, and the lack of adequate information and analysis
means that even the direction of any change in NOx is not clear. Changes in CO
emissions were not addressed.
If New York had provided information and analysis on the change in fuel
properties and associated emissions that a waiver would be expected to produce, and
the resulting impact on ozone, EPA would be in a position to thoroughly review the
basis for these estimates (fuel property estimation and emission modeling
methodology), and evaluate the estimated impact a waiver might have on ambient
ozone.
DEC's original waiver submission did not provide quantitative estimates of the
"no waiver" to "waiver" emission changes, as well as the underlying information
For example, certain other potential VOC emissions changes which could occur were not
quantified, and New York included estimates of VOC emission increases based on
unsupported assumptions about increases in gasoline Reid Vapor Pressure (RVP).
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necessary to make such estimates. Consequently, EPA asked for additional
information and analyses to estimate 1) the effect a waiver would have on the properties
of New York reformulated gasoline, and 2) the effect these changes in fuel properties
would have on emissions from highway and off-road vehicles and equipment. DEC has
not provided the requested information.
EPA has considered the information that New York has provided which may be
relevant to an analysis of New York's waiver request. EPA has determined as
described in the Technical Support Document, that the relevant no-waiver to waiver
comparison cannot be made either qualitatively or quantitatively. In making this
evaluation, EPA has considered the information provided by New York with regard to
the potential effect of a waiver on each of the pollutants, NOx, VOC and CO, for both
on-road and off-road gasoline vehicles and engines.
In order to evaluate the adequacy of the information submitted by New York, we
have identified the fuel properties, vehicle fleets (e.g., on-road versus off-road, older
technology vehicles versus newer technology, etc.), and emission sources (e.g.
exhaust, "as blended" evaporative, commingling and permeation-related) that would
need to be provided to conduct an adequate waiver/no-waiver analysis. We have also
identified emissions models and other information necessary to make the relevant
emission estimates that could be utilized to make a waiver/no-waiver comparison.
Based on the available information, EPA has concluded that neither the
magnitude nor even the direction of the NOx and VOC changes that would occur with a
waiver can be determined using the information provided. Although a gross directional
determination for carbon monoxide (CO) emissions can be made, the change in CO
likewise cannot be quantified with the information provided by DEC.9
III. CONCLUSION
The information that DEC has provided fails to demonstrate what effect a waiver
would have an on ozone levels in New York. This is because: 1) there are three
pollutants whose emission rates could be altered by a waiver (NOx, CO and VOC) and
all three affect ozone formation to varying degrees; 2) the lack of information on fuel
qualities with and without a waiver and the lack of other relevant and necessary
information precludes even a directional estimate of the impact of a waiver on NOx and
VOC emissions; 3) the best estimate of the net impact of a waiver on CO emissions is
that CO emissions would be greater with a waiver than without, but the difference
cannot be quantified; and 4) no analysis has been provided or performed at this time on
the combined effect of these emissions changes on ozone.
CO plays a far less important role in ozone formation that NOx or VOC. Thus, even
though a gross directional determination can be made, such a determination provides little
information in making a judgement about ozone formation.
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Since no determination can be made regarding the overall effect of a waiver on
ozone-related emissions, the information that DEC has provided fails to clearly
demonstrate what effect a waiver would have on ozone. Since this threshold
demonstration has not been made, EPA is not able to determine whether the oxygen
requirement for RFC interferes with attainment of the ozone NAAQS in the New York
RFC area. EPA concludes that New York's request therefore should be denied.10
EPA's denial of New York's waiver request will affect not only persons in New
York, but also the refiners, importers, and other parties in the gasoline distribution
system located outside the State who must deliver RFC to New York that conforms with
the requirements of the Clean Air Act, as well as the producers and distributors of
oxygenates that may be used in RFC sold in New York. For this reason, EPA hereby
determines and finds, pursuant to section 307(b) of the Clean Air Act, that this decision
is of nationwide scope and effect.
10 New York has not raised any issue concerning interference with attainment of the paniculate
matter (PM) NAAQS. However, our conclusions regarding the PM NAAQS would be the same as
those regarding the ozone NAAQS, i.e., New York has provided insufficient information to clearly
demonstrate what effect, if any, a waiver would have on PM. This is because New York has not
provided sufficient information to determine PM-related emissions for the no waiver and waiver
scenarios.
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