Daily Rules, Proposed Rules, and Notices of the Federal Government
EPA has established a public docket for this application under Docket ID No. EPA-HQ-OAR-2009-0211, which is available for online viewing at
Section 211(f)(1) of the Act makes it unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year, vehicle or engine under section 206 of the Act. EPA last issued an interpretive rule on the phrase “substantially similar” at 73 FR 22281 (April 25, 2008).
Section 211(f)(4) of the Act provides that upon application by any fuel or fuel additive manufacturer, the Administrator may waive the prohibitions of section 211(f)(1) if the Administrator determines that the applicant has established that such fuel or fuel additive or a specified concentration thereof, and the emission products of such fuel or fuel additive or a specified concentration thereof, will not cause or contribute to a failure of any emission control device or system (over the useful life of the motor vehicle, motor vehicle engine, nonroad engine or nonroad vehicle in which such device or system is used) to achieve compliance by the vehicle or engine with the emission standards to which it has been certified pursuant to sections 206 and 213(a) of the Act. In other words, the Administrator may grant a waiver for a prohibited fuel or fuel additive if the applicant can demonstrate that the new fuel or fuel additive will not cause or contribute to engines, vehicles or equipment failing to meet their emissions standards over their useful life. The statute requires that the Administrator shall take final action to grant or deny the application, after public notice and comment, within 270 days of receipt of the application.
The current statute reflects changes made under the Energy Independence and Security Act of 2007 which explicitly extended the section 211(f)(4) waiver provision to nonroad engines and nonroad vehicles, extended the period allowed for consideration of the waiver application from 180 days to 270 days and deleted a provision that resulted in a waiver becoming effective by operation of law if the Administrator made no decision within 180 days. The 1978 waiver for 10 percent ethanol in gasoline (“E10”) became effective under the previous provision when no decision was made by the Administrator
On March 6, 2009, Growth Energy and 54 ethanol manufacturers submitted a waiver application to the Administrator, pursuant to section 211(f)(4) of the Act, for ethanol-gasoline blends containing up to 15 percent ethanol by volume (“E15”).
Growth Energy maintains that under the renewable fuel program requirements of the Energy Independence and Security Act of 2007, which is now primarily satisfied by the use of ethanol in motor vehicle gasoline, there exists a “blend barrier” or “blendwall” by which motor vehicle gasoline in the U.S. essentially will become saturated with ethanol at the 10 volume percent level very soon. Growth Energy maintains that a necessary first step is to increase the allowable amount of ethanol in motor vehicle gasoline up to 15 percent (E15) in order to delay the blendwall. They also claim other ways of delaying the blendwall could include adding more stations offering E85 blends and bringing in the renewable fuel mandate specified in the Energy Independence and Security Act of 2007. For its part, Growth Energy claims that the “blendwall” will make those renewable fuel mandates unreachable and that there are substantial environmental benefits associated with higher ethanol blends.
Growth Energy states in its waiver application that its supporting studies and extensive experience with ethanol support a conclusion that E15 will not cause or contribute to the failure of an emission control system such that the engine or vehicles fails to achieve compliance with its emission standards. In addition to the information that Growth Energy submitted, EPA is aware that several interested parties are investigating the impact that mid-level blends (
One potential outcome at the end of our process, after reviewing the entire body of scientific and technical information available to us, may be an indication that a fuel up to E15 could meet the criteria for a waiver for some vehicles and engines but not for others. Some vehicles and engines may be more susceptible to emission increases or durability problems that cause or contribute to these vehicles or engines failing to meet their emissions standards. Assuming the criteria are met for a certain subset of vehicles, one interpretation of section 211(f)(4) is that the waiver could be approved in part for only that subset of vehicles or engines for which testing supports its use and for which adequate conditions or other measures could be implemented to ensure its proper use.
Another potential outcome is a conclusion that ethanol blends of greater than 10 percent, but less than 15 percent, warrant a waiver. To take such action, the Agency would need similar evidence, such as emissions durability testing, as what would be needed to address a waiver for a 15 percent blend.
Any approval, either fully or partially, is likely to elicit a market response to add E15 blends to E10 and E0 blends in the marketplace, rather than replace them. Thus consumers would merely have an additional choice of fuel.
Experience in past fuel programs has shown that even with consumer education and fuel implementation efforts, there sometimes continues to be public concern for new fuel requirements. Several examples include the phasedown of the amount of lead allowed in gasoline in the 1980s and the introduction of reformulated gasoline (RFG) in 1995. Some segments of the public were convinced that the new fuels caused vehicle problems or decreases in fuel economy. Although substantial test data proved otherwise, these concerns lingered in some cases for several years. As a direct result of these experiences, EPA wants to be assured that prior to granting a waiver, sufficient testing has been conducted to demonstrate the compatibility of a waiver fuel with engine, fuel and emission control system components.
EPA has previously granted waivers with certain restrictions or conditions, including requirements that precautions be taken to prevent using the waiver fuel as a base fuel for adding oxygenates, that certain corrosion inhibitors be utilized when producing the waiver fuel, and that waiver fuels meet voluntary consensus-based standards such as those developed by the American Society for Testing and Materials (ASTM). In a partial waiver for fueling certain types of vehicles or engines, the condition placed on the fuel manufacturer would be that the fuel is only used in certain vehicles or engines (
EPA invites public comments and data on all aspects of the waiver application that will assist the Administrator in determining whether the statutory basis for granting the waiver request for ethanol-gasoline blends containing up to E15 has been met. EPA specifically requests comment and data that will enable EPA to:
(a) evaluate whether an appropriate level of scientific and technical information exists in order for the Administrator to determine whether the use of E15 will not cause or contribute to a failure of any emission control device or system over the useful life of any motor vehicle or motor vehicle engine (certified pursuant to section 206 of the Act) to achieve compliance with applicable emission standards;
(b) evaluate whether an appropriate level of scientific and technical information exists in order for the Administrator to determine whether the use of E15 will not cause or contribute to a failure of any emission control device or system over the useful life of any nonroad vehicle or nonroad engine (certified pursuant to sections 206 and 213(a) of the Act) to achieve compliance with applicable emission standards; and,
(c) evaluate whether an appropriate level of scientific and technical information exists in order for the
EPA also requests comment on:
(d) all legal and technical aspects regarding the possibility that a waiver might be granted, in a conditional or partial manner, such that the use of up to E15 would be restricted to a subset of gasoline vehicles or engines that would be covered by the waiver, while other vehicles or engines would continue using fuels with blends no greater than E10. EPA seeks comment on what measures would be needed to ensure that the fuel covered by the waiver (
(e) Any education efforts that would be needed to inform the public about the new fuel that would be available if a waiver is granted. To address the possibility of a grant of a conditional or partial waiver, the Agency requests specific comments on public education measures that would be needed if the waiver allowed the fuel to be used only in a subset of existing vehicles or engines.
Commenters should include data or specific examples in support of their comments in order to aid the Administrator in determining whether to grant or deny the waiver request. In order for any testing programs evaluating emissions impacts, as well as other types of impacts (
Although it is not a specific criterion by which to evaluate a waiver request under section 211(f), any approved waiver could require program changes to accommodate this new fuel. EPA seeks comment on the effect of a potential waiver for ethanol blends above 10 percent and up to 15 percent on existing fuel programs (