[Federal Register Volume 74, Number 75 (Tuesday, April 21, 2009)]
[Pages 18228-18230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9115]

[[Page 18228]]



[EPA-HQ-OAR-2009-0211; FRL-8894-5]

Notice of Receipt of a Clean Air Act Waiver Application To 
Increase the Allowable Ethanol Content of Gasoline to 15 Percent; 
Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.


SUMMARY: On March 6, 2009, Growth Energy and 54 ethanol manufacturers 
submitted an application for a waiver of the prohibition of the 
introduction into commerce of certain fuels and fuel additives set 
forth in section 211(f) of the Clean Air Act (``the Act''). This 
application seeks a waiver for ethanol-gasoline blends of up to 15 
percent by volume ethanol (``E15''). The statute directs the 
Administrator of EPA to grant or deny this application within 270 days 
of receipt by EPA, in this instance December 1, 2009. In this Notice, 
EPA is soliciting comment on all aspects of the waiver application, 
including whether a waiver is appropriate for ethanol-gasoline blends 
over 10 percent and less than 15 percent.

DATES: Written comments must be received on or before May 21, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0211, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-
2009-0211, Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0211. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

How Can I Access the Docket?

    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 http://www.regulations.gov, or in person viewing at the EPA/
DC Docket Center Public Reading Room, 1301 Constitution Avenue, NW., 
Room 3334, Washington, DC. The EPA/DC Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Reading Room is 202-566-1744, 
and the telephone number for the Air and Radiation Docket is 202-566-
    Use http://www.regulations.gov to obtain a copy of the waiver 
request, submit or view public comments, access the index listing of 
the contents of the docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search,'' then key in the docket ID number identified in this 

Transportation and Air Quality, Mailcode: 6406J, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: (202) 343-9303; fax number: (202) 343-2802; e-mail 
address: [email protected].


Statutory Background

    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 
    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

[[Page 18229]]

regarding the waiver application and the waiver became effective by 
operation of law after passage of 180 days.

Context of Growth Energy's Waiver Application

    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 (e.g., E15 or E20) may 
have on vehicles and equipment. These testing programs are evaluating 
emissions impacts as well as other types of impacts (i.e., catalyst, 
engine, and fuel system durability, and onboard diagnostics) on 
vehicles and equipment. The Department of Energy, working in 
conjunction with the Coordinating Research Council and other interested 
parties, is leading a substantial testing effort. Results from this 
program to date are referenced in Growth Energy's waiver request, and 
we expect additional data will be added to the docket as it becomes 
    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 
(i.e., E15 is only used in the subset of vehicles or engines identified 
in the partial or conditional waiver). EPA recognizes that there may be 
legal and practical limitations on what a fuel manufacturer may be 
required or able to do to ensure compliance with the conditions of the 
waiver, including preventing misfueling. EPA has not previously imposed 
this type of ``downstream'' condition on the fuel manufacturer as a 
condition for obtaining a section 211(f)(4) waiver. EPA does, however, 
have experience with compliance problems occurring when two types of 
gasoline have been available at service stations. Beginning in the mid-
1970s with the introduction of unleaded gasoline and continuing into 
the 1980s as leaded gasoline was phased out, there was significant 
intentional misfueling by consumers. At the time most service stations 
had pumps dispensing both leaded and unleaded gasoline and a price 
differential as small as a few cents per gallon was enough to cause 
some consumers to misfuel.

Request for Comments

    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 
    (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

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Administrator to grant a waiver for an ethanol-gasoline blend greater 
than 10 percent and less than or equal to 15 percent by volume.
    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 (i.e. a partial or conditional 
waiver) is only used in that subset of vehicles or engines. EPA 
acknowledges that the issue of misfueling would be challenging in a 
situation where a conditional waiver is granted. To the extent a 
partial or conditional waiver may be appropriate, please provide 
comments on the legal and technical need for restrictions of this 
nature. Comments are also requested on how the Agency might define a 
partial or conditional waiver. For example, assuming there is 
sufficient technical basis, should the subset of vehicles or engines 
that is allowed to use the waived fuel be defined by model year of 
production, engine size, application (e.g., highway vehicle vs. nonroad 
engine), or some other defining characteristic.
    (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 (i.e., 
catalyst, engine, fuel system durability, or onboard diagnostics), to 
be useful in EPA's evaluation of Growth Energy's waiver application, 
any mid-level ethanol blend testing or other analyses should consider 
such impacts across a range of engines and equipment (including the 
fuel systems) that are currently in service and that could be exposed 
to mid-level ethanol blends. Such testing and analyses should also 
assess the long-term impacts of such blends. EPA specifically solicits 
the data and results from such testing and analyses.
    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 (e.g., gasoline detergent 
certification, protection of underground storage tanks, etc.) and on 
the gasoline production, distribution and marketing infrastructure. For 
example, would EPA need to modify its RFG and anti-dumping regulations 
to account for a higher blend? EPA also seeks comment on the dynamics 
of the blendwall concern raised by Growth Energy, the extent to which 
the use of an E15 blend would in practice help address this concern, 
and what additional steps would have to be taken to bring E15 to market 
should a waiver be granted.

    Dated: April 15, 2009.
Elizabeth Craig,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. E9-9115 Filed 4-20-09; 8:45 am]