[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Proposed Rules]
[Pages 5094-5104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00203]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 80, 280, and 281

[EPA-HQ-OAR-2020-0448; FRL-10015-80-OAR]
RIN 2060-AU92


E15 Fuel Dispenser Labeling and Compatibility With Underground 
Storage Tanks

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA currently requires fuel dispenser labels for gasoline-
ethanol blends of greater than 10 volume percent (vol%) ethanol and up 
to 15 vol% ethanol (E15). The label was designed to alert consumers to 
the appropriate and lawful use of the fuel. EPA is co-proposing to 
either modify the E15 label or remove the label requirement entirely 
and seeking comment on whether state and local governments may be 
preempted from requiring different labels on fuel dispensers. To 
facilitate the proper storage of E15 in underground storage tank 
systems (USTs), EPA is proposing to modify the UST regulations to grant 
certain allowances for compatibility demonstration for storage of 
ethanol blends. EPA is also proposing compatibility requirements for 
future UST installations or component replacements that would ensure 
compatibility with higher blends of ethanol.

DATES: 
    Comments: Comments must be received on or before April 19, 2021. 
Under the Paperwork Reduction Act (PRA), comments on the information 
collection provisions are best assured of consideration if the Office 
of Management and Budget (OMB) receives a copy of your comments on or 
before February 18, 2021.
    Public Hearing: EPA will announce the public hearing information 
for this proposal in a supplemental Federal Register document.

ADDRESSES: You may send your comments, identified by Docket ID No. EPA-
HQ-OAR-2020-0448, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2020-0448 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Air Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://

[[Page 5095]]

www.regulations.gov, including any personal information provided. For 
the full EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www.epa.gov/dockets/commenting-epa-dockets.
    Out of an abundance of caution for members of the public and our 
staff, the EPA Docket Center and Reading Room are closed to the public, 
with limited exceptions, to reduce the risk of transmitting COVID-19. 
Our Docket Center staff will continue to provide remote customer 
service via email, phone, and webform. We encourage the public to 
submit comments via https://www.regulations.gov or email, as there may 
be a delay in processing mail and faxes. Hand deliveries and couriers 
may be received by scheduled appointment only. For further information 
on EPA Docket Center services and the current status, please visit us 
online at https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT: For questions regarding the E15 fuel 
dispenser labeling provisions of this proposed action, contact Lauren 
Michaels, Office of Transportation and Air Quality, Assessment and 
Standards Division, Environmental Protection Agency, 2000 Traverwood 
Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4640; email 
address: [email protected]. For questions regarding the E15 
compatibility with underground storage tanks provisions of this 
proposed action, contact Elizabeth McDermott, Office of Underground 
Storage Tanks, Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW, Washington, DC 20460; telephone number: (202) 564-0646; email 
address: [email protected].

SUPPLEMENTARY INFORMATION:

Does this action apply to me?

    Entities potentially affected by this proposed rule are those 
involved with the sale of gasoline. Potentially affected categories 
include:

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                                             Examples of potentially
       Category         NAICS \1\ code          affected entities
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Industry.............  111, 112........  Agriculture (crop and animal
                                          production).
Industry.............  31-33...........  Manufacturing.
Industry.............  42, 44-45, 72     Commercial (wholesale trade,
                        (excluding 447).  retail trade, accommodation,
                                          and food services).
Industry.............  447.............  Retail motor fuel sales.
Industry.............  481, 483-486,     Transportation (air, water,
                        48811.            truck, transit, pipeline, and
                                          airport operations).
Industry.............  5171, 2211......  Communications and Utilities
                                          (wired telecommunications
                                          carriers, electric power
                                          generation, transmission, and
                                          distribution).
------------------------------------------------------------------------
\1\ North American Industry Classification System (NAICS).

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
proposed action. This table lists the types of entities that EPA is now 
aware could potentially be affected by this proposed action. Other 
types of entities not listed in the table could also be affected. To 
determine whether your entity would be affected by this proposed 
action, you should carefully examine the applicability criteria in 40 
CFR part 80. If you have any questions regarding the applicability of 
this proposed action to a particular entity, consult the person listed 
in the FOR FURTHER INFORMATION CONTACT section.

Outline of This Preamble

I. Purpose of This Action
II. E15 Fuel Dispenser Labeling Revisions
    A. Background on the E15 Label
    B. E15 in the Market
    C. Proposed Changes to the E15 Labeling Requirement
    D. Request for Public Comment on E15 Labeling Preemption 
Considerations
III. E15 Compatibility With Underground Storage Tanks
    A. Background on Underground Storage Tank Compatibility
    B. Proposed Changes to the UST Compatibility Requirements
    C. Updates to State Program Approval Requirements
    D. Overview of Estimated Costs
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act (NTTAA) and 
1 CFR part 51
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
V. Statutory Authority

I. Purpose of This Action

    This action proposes modifications to EPA regulations under the 
Clean Air Act (CAA) and the Resource Conservation and Recovery Act 
(RCRA) relating to the sale and distribution of gasoline-ethanol blends 
containing greater than 10 volume percent (vol%) ethanol and up to 15 
vol% ethanol (E15). Recently, EPA has taken actions to provide 
additional opportunity for E15 within the fuels marketplace. We are 
proposing two sets of regulatory changes to further that end. The first 
proposes modifications to EPA's E15 fuel dispenser labeling 
requirement. The second proposes changes to EPA's Underground Storage 
Tank (UST) regulations regarding compatibility with gasoline-ethanol 
blends.

II. E15 Fuel Dispenser Labeling Revisions

    This section discusses our proposed revisions to the E15 label, 
under the CAA.

A . Background on the E15 Label

    In 2010 and 2011, in response to requests for a waiver from CAA 
section 211(f)(1), EPA granted two partial waivers for use of E15 \1\ 
under CAA section 211(f)(4).\2\ These waivers were

[[Page 5096]]

partial in that they apply to model year (MY) 2001 and newer light-duty 
motor vehicles and do not apply to MY2000 and older light-duty motor 
vehicles, all heavy-duty gasoline engines and vehicles, all highway and 
off-highway motorcycles, and all nonroad products. Per CAA section 
211(f)(4), EPA evaluated whether the use of E15 would cause or 
contribute to emissions failures over the useful life of all vehicles, 
engines, and nonroad equipment, and determined that the use of E15 in 
MY2000 and older vehicles, heavy-duty gasoline engines and vehicles, 
and highway and off-highway motorcycles could cause these motor 
vehicles to exceed their emissions standards. EPA also found that the 
use of E15 in nonroad products could cause emissions exceedances as 
well as durability and materials compatibility issues.
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    \1\ For purposes of this preamble, E15 refers to gasoline-
ethanol blended fuels that contain greater than 10 vol% and no more 
than 15 vol% ethanol content.
    \2\ These partial waivers are collectively referred to as ``the 
E15 partial waivers.'' 75 FR 68094 (November 4, 2010), 76 FR 4662 
(January 26, 2011). The 2010 waiver applied to MY2007 and newer 
light duty motor vehicles. The 2011 waiver applied to MY2001-2006 
light duty motor vehicles.
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    Because the partial waivers apply only to MY2001 and newer light-
duty motor vehicles, EPA promulgated regulations under CAA section 
211(c) (referred to as the Misfueling Mitigation Rule or MMR) to 
mitigate the potential for E15 to be used to fuel vehicles, engines, 
and equipment for which E15 has not been approved for introduction into 
commerce.\3\ Those regulations were needed to implement EPA's 
affirmative determinations that the use of E15 in MY2000 and older 
light-duty motor vehicles, all heavy-duty gasoline engines and 
vehicles, all on- and off-highway motorcycles, and all nonroad products 
would cause or contribute to the impairment of those vehicles' and 
engines' emission controls and harm public health from increases in 
regulated emissions. The regulations include a prohibition on the use 
of E15 in MY2000 and older light-duty motor vehicles, all heavy-duty 
gasoline engines and vehicles, all on- and off-highway motorcycles, and 
all nonroad products. To implement this prohibition, EPA promulgated 
several misfueling mitigation requirements in the MMR, a key aspect 
being that E15 fuel dispensers must have a specific label when a retail 
station or wholesale-purchaser consumer chooses to sell E15. The label 
was designed to alert consumers to the appropriate and lawful use of 
the fuel.
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    \3\ 76 FR 44406 (July 25, 2011).
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    The E15 label was designed in coordination with consumer labeling 
experts at the Federal Trade Commission (FTC); FTC also requires the 
labeling of fuel dispensers in certain circumstances.\4\ EPA worked 
with FTC to develop the E15 label and to ensure consistency between 
EPA's and FTC's labels for higher level gasoline-ethanol blends such as 
E85 (gasoline ethanol blends containing up to 83 percent ethanol). By 
regulation, EPA's current E15 label can be used in lieu of FTC's label 
for E15.\5\
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    \4\ FTC's regulations found at 16 CFR 306.10 (Automotive Fuel 
Rating Posting) require fuel dispenser labels for gasoline-ethanol 
fuel blends containing greater than 10 percent ethanol. The FTC 
regulations provide for an exemption for retailers that utilize 
EPA's label under 40 CFR 80.1501. See 16 CFR 306.10(a).
    \5\ As described later in this proposal, if we were to remove 
our label requirement under 40 CFR 80.1501, absent additional action 
from FTC, retailers would be required to use FTC's label for ethanol 
blends containing between 10 and 15 percent ethanol, per 16 CFR part 
306.
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    The E15 label requirement was implemented as an integral component 
of EPA's misfueling mitigation program. First, the E15 partial waivers 
include a waiver condition that fuel and fuel additive manufacturers 
must submit a misfueling mitigation plan (MMP) with provisions to 
implement all reasonable precautions to address potential misfueling, 
including ensuring the use of a fuel dispenser label.\6\ The waiver 
conditions articulated in the E15 partial waivers provide that the 
label must convey the following information:
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    \6\ 75 FR 68094 (November 4, 2010), 76 FR 4662 (January 26, 
2011).
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     The fuel being dispensed contains 15% ethanol maximum;
     The fuel is for use in only MY2001 and newer gasoline 
cars, MY2001 and newer light-duty trucks, and all flex-fuel vehicles;
     Federal law prohibits the use of the fuel in other 
vehicles and engines; and
     Using E15 in vehicles and engines not approved for use 
might damage those vehicles and engines.
    As discussed above, the MMR also implements a label requirement for 
retailers and wholesale purchaser-consumers, in addition to the 
requirements under the waiver conditions for fuel and fuel additive 
manufacturers. The MMR label requirement is specified in 40 CFR 80.1501 
and requires the same basic elements as required under the E15 partial 
waivers' label requirement. Most recently, the 2019 E15 ``substantially 
similar'' definition for E15 requires that fuel and fuel additive 
manufacturers must submit a misfueling mitigation plan with provisions 
to implement all reasonable precautions to address potential 
misfueling.\7\ Thus, the E15 label is currently incorporated and 
required under 40 CFR 80.1501, our CAA section 211(f)(1) 
``substantially similar'' definition for E15, and the CAA section 
211(f)(4) E15 partial waivers.
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    \7\ 84 FR 26980, 27021 (June 10, 2019).
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B. E15 in the Market

    In 2019, EPA extended the CAA section 211(h)(4) 1-psi volatility 
waiver to gasoline-ethanol blends containing between 9 and 15 percent 
ethanol. This has expanded the opportunity for E15 to be sold during 
the summer season.
    In the years since the 2010 and 2011 E15 partial CAA section 
211(f)(4) waivers were granted, the number of retail stations offering 
E15 has grown, spurred in part by the United States Department of 
Agriculture (USDA) biofuel infrastructure partnership (BIP) program in 
2016-18 \8\ and the industry-sponsored Prime the Pump program, that 
helped provide funding for retail station upgrades. As of October 2019, 
there are an estimated 1,809 stations registered as selling E15 
(representing only about one percent of all retail stations).\9\ Figure 
III-1 shows the growth of E15 stations since 2012, as well as the 
percentage of E15 stations of all retail stations in the United States.
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    \8\ See Biofuel Infrastructure Partnership, https://www.fsa.usda.gov/programs-and-services/energy-programs/bip/index; 
Prime the Pump press release, https://growthenergy.org/2018/06/20/growth-energy-prime-the-pump-success-driving-ethanol-demand.
    \9\ Email from Growth Energy to EPA, October 9, 2019, ``Growth 
Energy Higher Blend Infrastructure.'' Available in the docket for 
this action.

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[[Page 5097]]

[GRAPHIC] [TIFF OMITTED] TP19JA21.029

    The opportunities for misfueling have changed since 2011 as well. 
Over time, the number of light-duty vehicles on the road that are older 
than MY2001 have decreased due to normal fleet turnover, resulting in a 
corresponding decrease in the number of miles traveled by those light-
duty vehicles.\10\ At the same time, we have no indication that 
anything has changed for the other sectors (i.e., nonroad vehicles, 
engines, and equipment, motorcycles, and heavy-duty vehicles). We 
continue to believe there are millions of such products in use that 
could potentially be misfueled on E15.
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    \10\ We received comments in rulemakings suggesting that there 
are still vehicles newer than MY2000 for which manufacturers' 
owner's manuals continue to include warnings against E15 use despite 
E15 being allowable for introduction into commerce in those vehicles 
under EPA's regulations. See discussion at 84 FR 26980, 27010 (June 
10, 2019).
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C. Proposed Changes to the E15 Labeling Requirement

    EPA has received comments from some stakeholders on other actions 
suggesting that the existing E15 label is no longer necessary and 
simply interferes with additional growth of E15 in the marketplace.\11\ 
These commenters suggest that removal of the label or changes to the 
color of the label or language used on the label would increase lawful 
use of E15 in MY2001 and newer light-duty vehicles. Other stakeholders 
have suggested that the growth in E15 at retail stations exacerbates 
concerns over misfueling of vehicles and equipment not designed for it, 
and suggest that the current label is no longer explicit enough about 
what vehicles and engines cannot use E15 making it insufficient to 
protect against misfueling.\12\ These commenters suggested that EPA 
should solicit input on the size, design, and placement of the label on 
the dispenser, and other characteristics of the label to more clearly 
communicate the fuel's ethanol content to consumers.\13\
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    \11\ See, e.g., Comments from Growth Energy (Docket Item No. 
EPA-HQ-OAR-2018-0227-0053) and Renewable Fuels Association (Docket 
Item No. EPA-HQ-OAR-2018-0227-0037). While these represent the most 
recent comments received on this issue, we have included all 
relevant comments in the docket for this action. While these 
comments often include many aspects of E15 use, only comments 
relating to the label are considered relevant for this NPRM.
    \12\ See, e.g., Comments from National Marine Manufacturers 
Association (Docket Item No. EPA-HQ-OAR-2018-0775-0534) and 
Petroleum Marketers Association of America (Docket Item No. EPA-HQ-
OAR-2018-0227-0083). While these represent the most recent comments 
received on this issue, we have included all relevant comments in 
the docket for this action. While the comments often address many 
aspects of E15 use, only those comments related to the label 
requirement are considered relevant for this NPRM.
    \13\ See, e.g., Comments from National Marine Manufacturers 
Association (Docket Item No. EPA-HQ-OAR-2018-0775-0534).
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    Our proposed action to modify or eliminate the E15 label 
requirement would rely on our CAA section 211(c) authority to control 
or prohibit fuel. Under CAA section 211(c)(1), EPA may issue 
regulations to ``control or prohibit the manufacture, introduction into 
commerce, offering for sale, or sale'' of any fuel or fuel additive 
whose emissions products may cause or contribute to air pollution 
``which may be reasonably anticipated to endanger public health or 
welfare,'' or whose emissions products ``will impair to a significant 
degree the performance of any emission control device or system which 
is in general use.'' In the MMR, we found that E15 would significantly 
impair the emission control systems used in MY2000 and older light-duty 
motor vehicles, all heavy-duty gasoline engines and vehicles, all 
highway and off-highway motorcycles, and all nonroad products. This 
misfueling could result in increases in hydrocarbon, carbon monoxide, 
nitrous oxide, particulate matter, and air toxics emissions. Any action 
EPA takes to modify or remove the label would need to consider this 
finding.
    We currently have no information before us that would indicate that 
E15, if used in MY2000 and older light-duty motor vehicles, all heavy-
duty gasoline engines and vehicles, all highway and off-highway 
motorcycles, and all nonroad products, would no longer cause such 
damage to emission control systems. However, in the intervening years 
since the promulgation of the MMR and the label requirement, the 
vehicle fleet turnover toward newer light-duty vehicles, and the 
feedback

[[Page 5098]]

from stakeholders have led us to reevaluate the E15 label at this time.
    The current label is 3 inches by 5 inches in black text on an 
orange background and includes the following language:
     The word ``ATTENTION,'' diagonally across the upper right 
corner of the label;
     The word ``E15'' at the top of the label;
     The ethanol content: ``Up to 15% ethanol'' below the word 
E15;
     The words and symbols ``Use only in  2001 and 
newer passenger vehicles  Flex-fuel vehicles''; and
     The final two sentences: ``Don't use in other vehicles, 
boats, or gasoline-powered equipment. It may cause damage and is 
prohibited by Federal law.'' \14\
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    \14\ An image of the existing label is available in the 
memorandum ``Potential Label Changes,'' available in the docket for 
this action.
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    In this action, we are co-proposing two options with respect to the 
E15 label. Under the first option, we are proposing modifications to 
the label intended to provide additional clarity to consumers and 
decrease confusion. Under the second option, we are proposing to remove 
the label entirely.
1. Potential Modifications to the E15 Label
    Our first co-proposal is to modify the existing E15 label, 
including:
     Removing the ``Attention'' stripe along the upper right 
corner of the label.
     Removing the phrase ``E15'' from the label, while 
including the language ``contains up to 15% percent ethanol''.
     Revising the language ``Use only in'' to ``Safe for use 
in''.
     Revising the language ``Don't use in'' to ``Avoid use 
in''.
     Revising the format of the word ``prohibited'' such that 
it is not in bold and italicized type.
    We additionally propose modifications to the label in accordance 
with our existing alternative labels. At this time, there are two 
approved alternative labels for E15. One label includes the term ``or'' 
in between ``2001 and newer passenger vehicles'' and ``flex fuel 
vehicles.'' We believe the inclusion of ``or'' clarifies that both 
MY2001 and newer light-duty motor vehicles and flex fuel vehicles can 
permissibly use E15. The other approved alternative label includes 
``motorcycles'' in the list of vehicles and engines in which E15 use is 
prohibited. Our first co-proposal proposes these modifications to the 
E15 label as well since we believe they more clearly convey which 
vehicles and engines can lawfully use E15.
    We believe these modifications to the label would reduce confusion 
about the vehicles in which E15 can be used while also alerting 
consumers to the vehicles and engines in which E15 should not be used. 
We note that these modifications would also continue to comply with the 
requirements under the existing E15 partial waivers and thus would not 
require modifications to them.
    Finally, we propose a modification to the colors utilized on the 
label. Consistent with the FTC fuel labels, we selected the orange 
color for our E15 label requirement in 2011; however, we recognize that 
another color may be better suited for the label. Some stakeholders 
\15\ have suggested a blue and white label, instead of the orange label 
we currently use. The proposed regulatory text modifies the color of 
the label to a blue header, with white text, and white body with black 
text.\16\ We alternatively propose to maintain the current orange and 
black label color design.
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    \15\ See, e.g., Comments from Growth Energy (Docket Item No. 
EPA-HQ-OAR-2010-0448-0083).
    \16\ We have provided mock-ups showing potential modifications 
to the label that might result from this proposal in the memorandum, 
``E15 Label Revisions,'' available in the docket for this action.
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    We seek comment on the proposed changes to the label, and 
specifically request input on what combination of modifications to the 
label would improve clarity regarding which vehicles can use E15 while 
protecting vehicles and engines for which E15 use is inappropriate. We 
recognize that the modifications proposed may be best implemented 
together, or in some alternative combination that does not include all 
of the proposed modifications. We specifically request information on 
any studies (e.g., public survey or focus group studies) or information 
on consumer interaction with the label.
2. Potential Removal of the E15 Label Requirement
    In the alternative, our second co-proposal is to remove the E15 
label entirely. Selection of this option could also result in the 
elimination of the E15 survey requirement because it is currently 
required in order to verify that E15 fuel dispensers are labeled 
consistent with EPA's regulatory requirements, and would arguably no 
longer be necessary if the labeling requirement were removed.\17\ Some 
stakeholders have suggested that removing the label would encourage the 
use of E15 by consumers who can lawfully use E15 but who do not do so 
because they are confused by the label.\18\
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    \17\ If we do remove the E15 label, we are not proposing to 
remove the Product Transfer Document (PTD) language requirements 
around ethanol content in gasoline-ethanol blended fuels. In 
addition to informing retailers of ethanol content for purposes of 
labeling E15 fuel dispensers, the PTD language requirements for 
ethanol are also necessary to identify which gasoline-ethanol blends 
can take advantage of the 1-psi waiver for RVP compliance.
    \18\ See Comments from Growth Energy (Docket Item No. EPA-HQ-
OAR-2015-0202-0129).
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    We note that, regardless of our proposal to remove the E15 label, 
the prohibition on the use of E15 in MY2000 and older light duty 
vehicles and all nonroad engines and equipment as codified at 40 CFR 
80.1504 would remain in place. We continue to believe that E15, when 
used in those vehicles or engines, would cause or contribute to the 
impairment of emission control systems which would, in turn, result in 
negative effects on human health and welfare.
    Were EPA's E15 label requirement to be removed, we believe that 
FTC's regulations would require that E15 dispensers be labeled 
according to FTC's label requirements.\19\ We seek comment on the 
interaction between EPA and FTC's labels, recognizing that we cannot 
modify FTC's regulations in this action.
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    \19\ See 16 CFR part 306 and supra notes 4&5.
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    In order to completely remove the E15 label, we would need to also 
remove it from the requirements under the CAA section 211(f)(4) waiver, 
and likely clarify under the CAA section 211(f)(1) ``substantially 
similar'' determination that the fuel dispenser label would no longer 
be required. We seek comment on how to address the requirements under 
the CAA section 211(f) provisions.
3. Modification to Regulations
    We note that we intend to finalize the proposed Fuels Regulatory 
Streamlining Rule (``Streamlining Rule'') with an implementation date 
of January 1, 2021, for most provisions, including the E15 label 
requirement. Under the Streamlining Rule, we proposed to transpose 
unchanged the current E15 misfueling mitigation measures from 40 CFR 
part 80, subpart N, into the new 40 CFR part 1090. Since the effective 
date of any final rulemaking for this action would likely be after 
January 1, 2021, we would effectuate the proposed E15 label 
modifications or removal of the E15 labeling requirement in 40 CFR part 
1090.

[[Page 5099]]

D. Request for Public Comment on E15 Labeling Preemption Considerations

    Since promulgation of the MMR in 2011, EPA has also received 
information from some stakeholders that confusion is caused when there 
is more than one label displayed on some fuel dispensers. For this 
reason, EPA additionally seeks comment regarding the ability of state 
or local governments to require labeling of E15 pump dispensers.
    As stated in the MMR,\20\ EPA's authority to ``control or 
prohibit'' specifications for E15 pump dispenser labels is provided by 
CAA section 211(c)(1). Under CAA section 211(c)(4)(A), a state or local 
government may not adopt or enforce differing controls or prohibitions 
respecting labeling of E15 fuel dispensers if ``for purposes of motor 
vehicle emission control.'' \21\ In the MMR, we also stated that we 
would evaluate questions regarding potential E15 pump dispenser labels 
preemption matters on a case-specific basis.\22\
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    \20\ See 74 FR 44406, 44431-32 (July 25, 2011).
    \21\ Except that under CAA section 211(c)(4)(C)(i), states other 
than California may prescribe and enforce non-identical measures if 
they seek and obtain EPA approval of State Implementation Plan 
revisions containing such control measures.
    \22\ See 74 FR 44432 (July 25, 2011).
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    Aside from the express preemption provided by CAA section 
211(c)(4)(A), a state or local control for fuels or fuel additives may 
be implicitly preempted under the supremacy clause of the U.S. 
Constitution where the state requirement conflicts with Federal law by 
preventing compliance with the federal requirement, or by standing as 
an obstacle to accomplishment of the Federal objectives. Therefore, a 
state or local requirement respecting E15 pump label dispensers that is 
not expressly preempted under CAA section 211(c)(4)(A) nevertheless may 
be preempted if it meets the criteria for this constitutional conflict 
preemption.
    In this action, we seek comment on whether there are certain types 
of labels that may be conflict-preempted from use. We encourage 
commenters to include examples of other labels they have observed that 
may raise such preemption questions and legal analysis to support their 
positions, to the extent feasible.

III. E15 Compatibility With Underground Storage Tanks

    This section discusses our proposed revisions regarding 
compatibility with USTs.

A. Background on Underground Storage Tank Compatibility

    As of 2020, EPA regulates over half-a-million UST systems that 
contain petroleum or hazardous substances. EPA's Office of Underground 
Storage Tanks was formed in response to the discovery in the early 
1980s that thousands of USTs had leaked and contaminated groundwater 
supplies in the U.S. USTs form a crucial part of our country's fueling 
infrastructure. It is important for USTs to be constructed, maintained, 
and operated in a manner so that petroleum and other regulated 
substances are stored safely. We developed the UST regulation in 1988 
to help owners and operators meet those goals, and a critical part of 
the regulation included the requirement for UST systems to be 
compatible with the substance stored. Incompatibility between fuels 
stored and UST system materials can result in equipment or components 
such as tanks, piping, gaskets, or seals becoming brittle, elongated, 
thinner, or swollen when compared with their condition when first 
installed. When this occurs, the UST system may fail to contain the 
regulated substance resulting in a release to the environment and 
possibly a failure to detect the release.
    The U.S. fuel supply has changed significantly since 1988 and use 
of biofuels has grown rapidly. We understand that the chemical and 
physical properties of biobased fuels, such as ethanol and biodiesel, 
can be more degrading to certain UST system materials than petroleum 
alone. Changes in the fuel supply have caused unintended consequences 
to UST systems, including equipment failure and releases to the 
environment. As a result, in 2015 we revised the UST regulation and 
required owners and operators to provide additional notification, 
demonstration, and recordkeeping when storing fuel blends, such as 
those with more than 10 percent ethanol or more than 20 percent 
biodiesel.\23\
---------------------------------------------------------------------------

    \23\ See 80 FR 41566 (July 15, 2015).
---------------------------------------------------------------------------

    The use of biofuels has continued to grow since 2015. As described 
in Section II.B, in June 2019, we modified fuel regulations that allow 
E15 to utilize the 1-psi volatility waiver, which allows for increased 
E15 sale in the summer. That final rule means more UST owners and 
operators may opt to store and sell E15 at gas stations and other 
fueling facilities. E15 is now used in 30 states at 1,809 stations. 
Because of this continued growth of biofuels in the U.S., this action 
proposes to revise the 2015 UST regulation to grant certain allowances 
for compatibility demonstration and make it less burdensome for UST 
owners and operators to meet the current requirements. In addition, 
this action proposes a requirement that UST systems installed, or UST 
equipment and components replaced, must be constructed with equipment 
and components compatible with ethanol blends up to 100 percent. This 
requirement would become effective one year after the effective date of 
the final rule.
    This proposal will make it easier for owners and operators to meet 
compatibility requirements with their current infrastructure, if unable 
to demonstrate compatibility. The proposal will also help ensure the 
future national UST infrastructure is compatible with a broad range of 
biofuels that come to market so service station owners can offer more 
choices to consumers. The fuel supply in the U.S. is constantly 
evolving; because future needs are somewhat unknown, we see value in 
promoting UST systems that can safely store a broad range of potential 
emerging fuels such as higher-level ethanol blends.

B. Proposed Changes to the UST Compatibility Requirements

1. Allowance--For Secondary Containment When Unableo To Demonstrate 
Compatibility
    In the preamble to the 2015 UST regulation, we clarified that 
implementing agencies could allow use of secondary containment in lieu 
of being able to demonstrate compatibility of all UST system equipment 
and components required by the regulation. EPA had not previously 
allowed this but is proposing to do so now in this action. Owners and 
operators of UST systems already in existence one year after the 
effective date of this rule who cannot determine compatibility (e.g., 
cannot find installation documentation) for all equipment and 
components are not required to demonstrate compatibility if the UST 
systems have secondarily contained tanks and piping (including safe 
suction piping) and use interstitial monitoring. This will still 
sufficiently protect the environment because secondary containment will 
contain a leak from the primary containment of the tank and piping, and 
interstitial monitoring will likely detect a leak before regulated 
substances reach the environment.

[[Page 5100]]

    As of 2020, all states \24\ require secondary containment for new 
and replaced UST systems, along with the requirement for interstitial 
monitoring to detect potential releases. Most states' requirements 
target new and replaced UST systems, which avoids added expenses for 
owners and operators to retrofit or replace existing systems to meet 
the requirements. Many states, including those in New England, New 
York, California, and Florida, required full or partial secondary 
containment prior to Congress passing Title XV, Section B of the Energy 
Policy Act of 2005 (EPAct). This act required states receiving Federal 
money under Subtitle I of the Solid Waste Disposal Act to require 
either secondary containment and under-dispenser containment for new 
and replaced underground storage tank systems or evidence of 
manufacturer and installer financial responsibility and installer 
certification. By 2008, 31 states had adopted the EPAct requirement. 
However, states' requirements for secondary containment and 
interstitial monitoring can differ, including when required and 
allowances for use of other release detection options when owners and 
operators chose to install secondary containment prior to it being 
required.
---------------------------------------------------------------------------

    \24\ States includes all 50 states, 5 territories, and the 
District of Columbia.
---------------------------------------------------------------------------

    EPA's database, populated with publicly available information 
gathered from the individual state UST programs, helped us understand 
the number of UST systems nationally that are secondarily contained and 
where owners and operators are using interstitial monitoring to detect 
releases from their UST systems. Using state-supplied data, we 
identified 23 states that provide data on the number of UST systems 
with both double-wall tanks and double-wall piping. These secondarily 
contained systems should generally be capable of using interstitial 
monitoring for release detection, although some may currently use 
another method. This means that approximately 24 percent of the 225,000 
USTs in these 23 states should be able to use secondary containment 
with interstitial monitoring, if they have compatible equipment but are 
currently unable to demonstrate it. The percentage is likely similar 
across the nation, but we seek comment on this issue.
    Owners and operators should be aware that only leaks from equipment 
or components inside secondary containment will be contained. Fuel 
spills may still occur if other UST system components become non-
functioning due to incompatibility since the equipment or component is 
not inside secondary containment. For example, if spill prevention 
equipment (i.e., spill bucket) fails due to incompatibility, small 
spills from the delivery hose will not be contained by the tank and 
piping secondary containment. We encourage owners and operators to 
replace equipment that they cannot demonstrate as compatible if the 
equipment is accessible from ground level and replaceable with minimal 
investment.
2. Allowance--For Already Compatible Tanks and Piping
    We identified equipment for which UST owners and operators would 
not need to demonstrate compatibility. Based on manufacturer statements 
and certification by independent testing laboratories, certain 
categories of equipment are known to be compatible with higher blends 
of ethanol. We believe that steel and fiberglass tanks manufactured 
after July 2005 are compatible with higher blends of ethanol fuels. 
This means that owners and operators will not need to demonstrate 
compatibility for these tanks. Likewise, we understand that all 
fiberglass reinforced plastic (FRP) piping is compatible with higher 
blends of ethanol fuel, so owners will not need to demonstrate 
compatibility for any FRP piping.
    For other equipment, we are unaware of a fixed date or fixed 
category in which all equipment by any manufacturer is known to be 
compatible. As such, other than for the tank and piping items 
identified earlier in this section, owners and operators must adhere to 
the requirement in 40 CFR 280.32 to demonstrate compatibility.
    However, we understand that some models of many equipment and 
components that must be demonstrated compatible were already compatible 
with higher blends of ethanol decades before these blends became 
common. UST owners and operators may already have this equipment 
installed. If they can demonstrate compatibility of certain existing 
equipment, they will not need to replace all of their equipment to 
demonstrate compatibility with higher blends of ethanol.\25\
---------------------------------------------------------------------------

    \25\ See https://flexfuelforward.com/flexcheck.
---------------------------------------------------------------------------

    For example, we understand that the following UST system equipment 
and components were available after the 1988 UST regulation and are 
compatible with higher blends of ethanol:

 Unlined steel single-wall tanks
 Unlined steel double-wall tanks

    In addition, we understand that the following UST system equipment 
and components were available in a higher ethanol compatible version 
from at least one manufacturer as early as the years listed below. Many 
owners and operators might have a compatible piece of equipment, which 
can be confirmed and demonstrated as compatible by verifying 
documentation associated with the equipment manufacturer and 
installation.

 Single-wall fiberglass tanks: 1995
 Double-wall fiberglass tanks: 1990
 Flexible piping: 2011
 Fiberglass containment sumps: 1995
 Pumping equipment: 2010
 Spill equipment: 2015
 Release detection equipment: 2006
 Overfill equipment: 2006
    We are requesting comment on the accuracy of this information and 
seek additional information on this matter.
3. Compatibility Requirements for New Installations and Replacements
    We are proposing that owners and operators storing motor fuel used 
in over-the-road vehicles must ensure that new or replaced UST system 
equipment and components, including pipe dopes and sealants, are 
compatible with ethanol blends up to 100 percent. This applies 
regardless of whether the UST system currently stores or will store 
ethanol blends. This includes UST systems storing over-the-road diesel 
because service stations may in the future change to storing gasoline 
with higher blends of ethanol. However, we believe USTs storing fuel 
for emergency power generators and other off-road fuel used (such as 
fuel for construction equipment) should be exempt from this 
requirement. We seek comment on other potentially applicable 
exemptions. If an owner or operator is replacing specific equipment or 
components, such as a submersible turbine pump or containment sump, 
then only that replacement must be compatible with ethanol blends up to 
100 percent. For entirely new UST system installations or replacements, 
the entire system must be compatible with ethanol blends up to 100 
percent. We would require UST owners and operators to retain 
compatibility documentation for all new system equipment and 
components, including pipe dope, sealants, and gaskets, which are a 
common source of incompatibility.
    This proposed requirement would become effective one year after the 
effective date of the final regulation. Since UST systems typically 
stay in the ground for decades--40 percent of active USTs are more than 
30 years old--transitioning to compatible UST

[[Page 5101]]

systems for emerging fuels can be very difficult. Implementing this 
requirement now will help ensure future fuel storage infrastructure can 
reliably store a larger variety of fuels. One hundred percent ethanol 
compatible material is readily available on the market today for all 
UST system equipment and components. The additional cost of a fully 
ethanol compatible system would be relatively minimal as a percentage 
of total cost of installation. This additional up-front investment 
would also avoid potentially significant upgrade costs, if future fuels 
contain greater volumes of ethanol or other alcohols.

C. Updates to State Program Approval Requirements

    EPA has long recognized that, because of the size and diversity of 
the regulated community, state and local governments are in the best 
position to oversee USTs. State and local authorities are closer to the 
situation in their domain and are in the best position to set 
priorities. The 2015 state program approval (SPA) regulation in 40 CFR 
part 281 sets criteria state UST programs must meet to receive EPA's 
approval to operate in lieu of the Federal UST program. The SPA 
regulation sets performance criteria states must meet to be considered 
no less stringent than the Federal UST regulation and provides 
requirements for states to have adequate enforcement.
    Much of the responsibility for implementing these proposed changes 
falls to state agencies. EPA will work with states to update their UST 
regulations and will support them in achieving state program approval. 
These proposed changes to the 2015 UST regulation, when final, will 
initially only apply to UST facilities in Indian country and in states 
that do not have SPA (owners and operators in states that do not have 
SPA must comply with the Federal UST regulation and their state 
regulations). For states that do have SPA these proposed changes will 
not apply until each state undertakes its own rulemaking. As of the 
date of publication of this notice, 15 \26\ states do not have state 
program approval. For a list of states with state program approval, see 
www.epa.gov/ust/state-underground-storage-tank-ust-programs.
---------------------------------------------------------------------------

    \26\ States and territories without SPA--AK, AZ, CA, FL, IL, MI, 
NJ, NY, OH, WI, WY and AS, GU, CNMI, VI.
---------------------------------------------------------------------------

    EPA is proposing to change the 2015 SPA regulation (40 CFR part 
281) and make it consistent with these proposed revisions of the 
compatibility requirements of the 2015 UST regulation (40 CFR part 
280). Specifically, EPA proposes that states require UST systems that 
store motor fuel for use in over-the-road vehicles be compatible with 
ethanol blends up to 100 percent when a new system is installed or when 
equipment and components are replaced. Since this is a more stringent 
requirement than what EPA required in its 2015 UST regulation, states 
would need to have or adopt this additional provision to be considered 
no less stringent than the corresponding Federal requirements.
    States will have three years from the effective date of a final 
rule to submit to EPA a revised SPA application, including this change 
to their states' UST regulations. Since many states have recently been 
through this SPA application approval process for the 2015 UST 
regulation, EPA intends to make this additional modification to SPA an 
expedited process. EPA welcomes additional feedback on this.

D. Overview of Estimated Costs

    The regulatory changes proposed today would provide cost savings to 
UST owners and operators as well as impose costs, and EPA is seeking 
comments on both.
1. Allowances--For Secondary Containment When Unable To Demonstrate 
Compatibility and for Already Compatible Tanks and Piping
    The allowance described in this proposal for UST systems with 
secondary containment using interstitial monitoring when unable to 
demonstrate compatibility will provide owners and operators cost 
savings. Under this allowance, UST system owners and operators seeking 
to store ethanol blends up to 100 percent will not have to upgrade 
certain equipment and components simply because they are unable to 
demonstrate compatibility for that equipment and those components. As 
described in this preamble it is EPA's understanding that approximately 
24 percent of all UST systems should be able to use secondary 
containment with interstitial monitoring, if they have compatible 
equipment but are currently unable to demonstrate it. This could mean 
that a significant portion of all facilities that seek to store higher 
blends of ethanol but are unable to demonstrate may not have to replace 
certain equipment. A rough estimate of replacement cost avoidance from 
this allowance can be made from informal estimates EPA has gathered 
from industry and regulators:
     Replacing tanks: $150,000 per tank.
     Replacing piping: $150,000 per facility.
     Ancillary equipment upgrades (most variable and 
configuration dependent): $1,000 $10,000 per UST system.
    In addition, the other allowance proposed in this regulation to 
eliminate the requirement to demonstrate compatibility for all steel 
and fiberglass tanks manufactured after July 2005, and all FRP piping 
should provide some additional cost savings. EPA is seeking to verify 
this understanding and is looking for additional information or data to 
better understand the cost implications of today's proposal.
2. Compatibility Requirements for New Installations and Replacements
    This proposal imposes compatibility requirements for up to 100 
percent ethanol for certain (i.e., storing motor fuel used in over-the 
road-vehicles) new installations and replacements of UST system 
equipment and components regardless of whether the UST system currently 
stores or will store ethanol blends. This means, for example that an 
UST owner and operator needing to replace equipment such as a 
containment sump or spill bucket must make that replacement with 
equipment that is compatible with up to 100 percent ethanol. EPA 
understands that the marginal cost for any new UST system equipment or 
components compatible with up to 100 percent ethanol is minimal 
compared with the overall project costs (i.e., design, construction, 
installation etc). EPA estimates the additional costs for purchasing up 
to 100 percent compatible equipment or components could be 
significantly less than 5% of the overall project costs and is seeking 
comment on this estimate. Some major UST components and equipment 
manufactured today (e.g., tanks, piping) are all already compatible 
with up to 100 percent ethanol so there is no cost increase to 
accommodate the higher blends for those purchases. However, there is 
certain equipment where the cost of the up to 100 percent ethanol 
compatible model may be higher (e.g., overfill device).
    EPA is seeking to verify this understanding and is looking for 
additional information or data to better understand the cost 
implications of this action.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

[[Page 5102]]

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action because it raises 
novel legal or policy issues. Nevertheless, after reviewing information 
regarding this action, the Office of Management and Budget waived 
review of this action.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action. We seek comment on any burdens and costs associated 
with this rulemaking.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the PRA. The Information Collection Request (ICR) document 
that EPA prepared has been assigned EPA ICR number 2655.01. You can 
find a copy of the ICR in the docket for this rule, and it is briefly 
summarized here.
    This proposed regulation would either change the existing, approved 
E15 label (approved under OMB Control Number 2060-0675)--or remove it 
entirely. Should the E15 label be modified, then there would be a cost 
associated with affixing the amended label to pumps from which fuel is 
dispensed. We have also allowed that some parties may need to purchase 
labels. Parties required to affix labels are typically parties who own 
or operate retail stations or wholesale-purchases consumer facilities. 
Should the E15 labeling requirement be removed entirely, then there 
would no longer be any E15 label required and we would anticipate a 
cost savings to industry.
    This proposed regulation would also require owners and operators of 
underground storage tanks (UST) to maintain records of compatibility at 
new UST installations and replacements storing motor fuels used in over 
the road transportation. This new requirement is only intended for UST 
systems storing motor fuel used in over-the-road transportation, not 
for UST systems fueling emergency power generators nor other UST 
systems used for off-road purposes such as construction equipment. In 
the existing regulation, owners and operators of USTs storing product 
containing more than 10 percent ethanol or more than 20 percent 
biodiesel are required to maintain records to demonstrate compatibility 
with the product stored. This action proposes to grant certain 
allowances for this current UST system compatibility demonstration 
requirement, which reduces information collection burden for some UST 
systems. The existing requirements for owners and operators of USTs are 
under OMB Control Number 2060-0068.
    Respondents/affected entities: Retailers and wholesale purchaser-
consumers who dispense E15; owners and operators of UST systems.
    Respondent's obligation to respond: Mandatory under 40 CFR part 80, 
subpart N, (E15 labeling)--and 40 CFR part 280, subparts B and C; and 
40 CFR part 281, subpart C (UST).
    Estimated number of respondents: 1,801 retail and wholesale 
purchaser-consumers for the E15 labeling provisions and 10,331 owners 
and operators for the UST provisions.
    Frequency of response: Once, as needed and on occasion.
    Total estimated burden: 37 hours (per year) for the E15 labeling 
and 2,799 hours (per year) for USTs. Burden is defined at 5 CFR 
1320.3(b).
    Total estimated cost: $3,785 (per year) for E15 labeling, which 
includes $2,952 annualized capital or operation & maintenance costs; 
and $65,515 for UST, which includes $0 annualized capital or operation 
& maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on EPA's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden to EPA using the docket for this 
action. You may also send your ICR-related comments to OMB's Office of 
Information and Regulatory Affairs at www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting 
``Currently under 30-day Review--Open for Public Comments'' or by using 
the search function. Since OMB is required to make a decision 
concerning the ICR between 30 and 60 days after receipt, OMB must 
receive comments no later than February 18, 2021. EPA will respond to 
any ICR-related comments in the final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. The 
small entities subject to the requirements of this action are retail 
motor fuels firms and small government jurisdictions.
    With respect to the E15 fuel dispenser label portion of this 
action, the proposed changes to the E15 label under option 1 of this 
action do not substantively alter the regulatory requirements on 
parties that make and distribute E15. The removal of the E15 label 
under option 2 of this action would reduce burden on all regulated 
parties that sell E15, including small entities, and therefore would 
not impose any requirements on small entities.
    With respect to the E15 compatibility with underground storage 
tanks provisions of this action, in EPA's 2015 UST rulemaking we 
determined that less than 1 percent of potentially affected small firms 
in the retail motor sector (NAICS 447) would experience an impact over 
1 percent of revenues, but less than 3 percent of revenues and that no 
small firms would have impacts above 3 percent of revenues.\27\ In the 
2015 rulemaking we also determined that no small government 
jurisdictions would be impacted at 1 percent or 3 percent of 
revenues.\28\ Since this action proposes a small change to the 2015 
regulation, we do not expect any significant impacts to small entities. 
EPA seeks comment on any cost impacts.
---------------------------------------------------------------------------

    \27\ See 80 FR 41620-21 (July 15, 2015) and Section 5.4 of the 
Regulatory Impact Analysis (RIA) for that action, ``Assessment Of 
The Potential Costs, Benefits, And Other Impacts Of The Final 
Revisions To EPA's Underground Storage Tank Regulations.''
    \28\ Id.
---------------------------------------------------------------------------

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This action imposes 
no enforceable duty on any state, local or tribal governments. 
Requirements for the private sector do not exceed $100 million in any 
one year.

F. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. The E15 
label portion of this action will not have substantial direct effects 
on the states, on the relationship between the national government and 
the states, or on the distribution of power and responsibilities among 
the various levels of government. For the E15 compatibility with 
underground storage tanks portion of this action, the total costs of 
this proposed rule (direct compliance costs, notification costs and

[[Page 5103]]

state program costs) will be small. In our much larger rule in 2015 
these total costs were only $9 million which is not considered to be a 
substantial compliance costs under Federal requirements. Therefore, we 
believe Executive Order 13132 will not apply to this rule which we 
expect to have lower costs than the 2015 rule. EPA is requesting 
comment on the expected costs of this proposed rule. In the spirit of 
Executive Order 13132 and consistent with EPA policy to promote 
communications between EPA and State and local governments, EPA will 
specifically solicit comment from state and local government during the 
comment period.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action proposes to either change 
EPA's existing E15 label or remove the labeling requirement entirely. 
There are no additional costs for sources in the energy supply, 
distribution, or use sectors.

J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR 
Part 51

    This proposed action does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). For 
the E15 label portion of this action, this proposed rule maintains the 
prohibition on the use of E15 in 2000 and older light duty vehicles, as 
well as all motorcycles, and nonroad vehicles, engines, and equipment, 
which could result in increases in emissions. For the E15 compatibility 
with underground storage tanks portion of this action, EPA has 
determined that this action will not have disproportionately high and 
adverse human health or environmental effects on minority or low-income 
populations because it increases the level of environmental protection 
for all affected populations without having any disproportionately high 
and adverse human health or environmental effects on any population, 
including any minority or low-income population.

V. Statutory Authority

    Statutory authority for the E15 label portion of this action comes 
from section 211 of the Clean Air Act, 42 U.S.C. 7545. Statutory 
authority for the E15 compatibility with underground storage tanks 
section of this action comes from the Resource Conservation and 
Recovery Act sections 9001 et seq., 42 U.S.C. 6991 et seq.

List of Subjects

40 CFR Part 80

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Fuel additives, Gasoline, Labeling, Motor 
vehicle pollution, Penalties, Reporting and recordkeeping requirements.

40 CFR Parts 280 and 281

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Petroleum, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR parts 80, 280, and 281 as follows:

PART 80--REGISTRATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).

0
2. Revise Sec.  80.1501 to read as follows:


Sec.  80.1501  Labeling requirements that apply to retailers and 
wholesale purchaser-consumers of gasoline that contains greater than 10 
volume percent ethanol and not more than 15 volume percent ethanol.

    (a) Any retailer or wholesale purchaser-consumer who sells, 
dispenses, or offers for sale or dispensing E15 must affix the 
following conspicuous and legible label to the fuel dispenser:

Contains up to 15% ethanol
Safe for use in
     2001 and newer passenger vehicles; or
     Flex-fuel vehicles

    Avoid use in other vehicles, motorcycles, boats, or gasoline-
powered equipment. It may cause damage and is prohibited by Federal 
law.
    (b) Labels under this section must meet the following requirements 
for appearance and placement:
    (1) Dimensions. The label must measure 3 and \5/8\ inches wide by 3 
and \1/8\ inches high.
    (2) Placement. The label must be placed on the upper two-thirds of 
each fuel dispenser where the consumer will see the label when 
selecting a fuel to purchase. For dispensers with one nozzle, the label 
must be placed above the button or other control used for selecting 
E15, or in any other manner which clearly indicates which control is 
used to select E15. For dispensers with multiple nozzles, the label 
must be placed in the location that is most likely to be seen by the 
consumer at the time of selection of E15.
    (3) Text. The text must be justified and the fonts and backgrounds 
must be as described in paragraphs (b)(3)(i) through (vi) and (b)(4)(i) 
through (iv) of this section.
    (i) The ethanol content: ``Contains up to 15% ethanol'' must be in 
18-point, center-justified, white, Helvetica Black font in the top 1.25 
inches of the label.
    (ii) The words ``Safe for use in'' must be in 20-point, left-
justified, black, Helvetica Bold font in the bottom 1.875 inches of the 
label.
    (iii) The words, and symbols `` 2001 and newer passenger 
vehicles; or  Flex-fuel vehicles'' must be in 14-point, left-
justified, black, Helvetica Bold font.

[[Page 5104]]

    (iv) The remaining two sentences must be in 12-point, left-
justified, Helvetica Bold font.
    (4) Color. (i) The background of the top 1.25 inches of the label 
must be blue.
    (ii) The background of the bottom 1.875 inches of the label must be 
white.
    (5) Alternative labels. (i) Alternative labels to those specified 
in this section may be used if approved by EPA in advance. Such labels 
must contain all of the informational elements specified in paragraph 
(a) of this section, and must use colors and other design elements 
similar in substance and appearance to the label required by this 
section. Such labels may differ in size and shape from the label 
required by this section only to a small degree, except to the extent a 
larger label is necessary to accommodate additional information or 
translation of label information.
    (ii) A request for approval of an alternative label must be sent to 
the attention of ``E15 Alternative Label Request'' to the address in 
Sec.  80.10(a).

PART 280--TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS 
FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS (UST)

0
3. The authority citation for part 280 continues to read as follows:

    Authority: 42 U.S.C. 6912, 6991, 6991(a), 6991(b), 6991(c), 
6991(d), 6991(e), 6991(f), 6991(g), 6991(h), 6991(i).

0
4. Amend Sec.  280.20 by adding a sentence after the first sentence in 
the introductory text to read as follows:


Sec.  280.20  Performance standards for new UST systems.

    * * * Owners and operators must also comply with the requirement of 
Sec.  280.32(b) when equipment or components are installed or replaced, 
as applicable. * * *
* * * * *
0
5. Amend Sec.  280.32 by revising paragraph (b) and adding paragraphs 
(c) and (d) to read as follows:


Sec.  280.32  Compatibility

* * * * *
    (b) In addition to the requirements at Sec.  280.20, owners and 
operators of UST systems which will store motor fuel used in over-the-
road vehicles must ensure that equipment and components, including pipe 
dopes and sealants, that are installed or replaced on or after [1 year 
after effective date of final regulations] are compatible with ethanol 
blends up to 100 percent. Owners and operators must keep documentation 
of compatibility in accordance with paragraph (c)(1) of this section 
and keep documentation on compatibility of pipe dopes and sealants.
    (c) Owners and operators must notify the implementing agency at 
least 30 days prior to switching to a regulated substance containing 
greater than 10 percent ethanol, greater than 20 percent biodiesel, or 
any other regulated substance identified by the implementing agency. In 
addition, owners and operators with UST systems storing these regulated 
substances must meet one of the following:
    (1) Demonstrate compatibility of the UST system (including the 
tank, piping, containment sumps, pumping equipment, release detection 
equipment, spill equipment, and overfill equipment). Owners and 
operators may demonstrate compatibility of the UST system by using one 
of the following options, though no demonstration is required for tanks 
manufactured on or after July 2005 or for any fiberglass piping:
    (i) Certification or listing of UST system equipment or components 
by a nationally recognized, independent testing laboratory for use with 
the regulated substance stored; or
    (ii) Equipment or component manufacturer approval. The 
manufacturer's approval must be in writing, indicate an affirmative 
statement of compatibility, specify the range of biofuel blends the 
equipment or component is compatible with, and be from the equipment or 
component manufacturer.
    (2) All UST systems must be compatible with the substance stored in 
accordance with paragraph (a) of this section but for any UST system 
installed prior to 1 year after the date of publication of the final 
rule in the Federal Register for which compatibility cannot be 
demonstrated in accordance with paragraph (c)(1) of this section, the 
regulated substance may be stored if the tank and piping are 
secondarily contained and use interstitial monitoring in accordance 
with Sec.  280.43(g). Secondary containment must be able to contain 
regulated substances leaked from the primary containment until they are 
detected and removed and prevent the release of regulated substances to 
the environment at any time during the operational life of the UST 
system.
    (3) Use another option determined by the implementing agency to be 
no less protective of human health and the environment than the options 
listed in paragraph (c)(1) of this section.
    (d) Owners and operators must maintain records in accordance with 
Sec.  280.34(b) documenting compliance with paragraph (b) of this 
section for the life of the UST system and paragraph (c) of this 
section for as long as the UST system is used to store the regulated 
substance.


Sec.  280.34  [Amended]

0
6. Amend Sec.  280.34 paragraph (a)(2) by removing ``(Sec.  
280.32(b))'' and adding ``(Sec.  280.32(c))'' in its place; and in 
paragraph (b)(3) by removing ``(Sec.  280.32(c))'' and adding ``(Sec.  
280.32(b) and (c))'' in its place.

PART 281--APPROVAL OF STATE UNDERGROUND STORAGE TANK PROGRAMS

0
7. The authority citation for part 281 continues to read as follows:

    Authority: 42 U.S.C. 6912, 6991(c), 6991(d), 6991(e), 6991(i), 
6991(k).

0
8. Amend Sec.  281.32 by revising paragraph (c) and the first sentence 
of paragraph (g) to read as follows:


Sec.  281.32  General operating requirements

* * * * *
    (c) Be made of or lined with materials that are compatible with the 
substance stored; in order to ensure compatibility, the state 
requirements must also include provisions for demonstrating 
compatibility with new and innovative regulated substances or other 
regulated substances identified by the implementing agency or include 
other provisions determined by the implementing agency to be no less 
protective of human health and the environment than the provisions for 
demonstrating compatibility; for UST systems that will store motor fuel 
used in over-the-road vehicles, all newly installed or replaced 
equipment or components, including pipe dopes and sealants, must be 
compatible with ethanol blends up to 100 percent;
* * * * *
    (g) Have records of monitoring, testing, repairs, compatibility 
demonstration, and inspections. * * *

[FR Doc. 2021-00203 Filed 1-15-21; 8:45 am]
BILLING CODE 6560-50-P