1

Sutton, Tia

From: Ervin Pickell <ervin.pickell@weaver.com>

Sent: Monday, October 27, 2014 12:14 PM

To: Herzog, Jeff; Sutton, Tia; Brunner, Christine

Cc: Kodish, Jeff; Thompson, Christopher

Subject: A nit on pentane blending

Attachments: removed.txt

I don’t remember if I mentioned this before—and perhaps it’s on your radar regardless. 80.1270 says butane blenders 

can’t generate benzene credits (should be clarified to say butane blenders using the provisions of 80.82). But 80.1270 

doesn’t mention pentane blenders. 

 

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 Ervin Pickell

 Weaver 

 Director

 Energy Compliance Services

 D: 832.320.3205 ervin.pickell@weaver.com

 24 Greenway Plaza, Suite 1800 

 Houston, TX 77046 

 P: 713.850.8787 F: 713.850.1673 

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1

Sutton, Tia

From: Ervin Pickell <ervin.pickell@weaver.com>

Sent: Friday, June 06, 2014 4:08 PM

To: Brunner, Christine; Sutton, Tia; Herzog, Jeff

Cc: Kodish, Jeff

Subject: some typos in 80.1650

Attachments: removed.txt

Hi all, 

 

80.1650(a)(4) has incomplete sentence. 80.1650(g) is about oxy blenders but paragraph 3 is about producers. 

 

Erv 

 

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 Ervin Pickell

 Weaver 

 Director

 Energy Compliance Services

 D: 832-320-3205 ervin.pickell@weaver.com

 24 Greenway Plaza, Suite 1800 

 Houston, TX 77046 

 P: 713.850.8787 F: 713.850.1673 

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Internal Revenue Service, unless otherwise expressly stated, any U.S. federal or state tax advice in this 

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taxpayer for the purpose of (i) avoiding penalties that may be imposed under federal or state tax law or (ii) 

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1

Sutton, Tia

From: Ervin Pickell <ervin.pickell@weaver.com>

Sent: Friday, March 28, 2014 5:37 PM

To: Herzog, Jeff; Brunner, Christine; Sutton, Tia

Cc: Kodish, Jeff

Subject: RE: Final Newest Tier 3 list

Attachments: removed.txt

Follow Up Flag: Follow up

Flag Status: Flagged

Really. These comments deal with the use of the 5 ppm sulfur content assumption for ethanol added downstream to 

RBOB and CBOB. 

 

1. I think the assumption approach is an excellent idea. Actual testing is unworkable and with the requirements 

for denaturant manufacturers and oxygenate producers, the actual sulfur content of ethanol can be expected to 

be predictable. However, the different treatment of benzene (benzene content of ethanol must still be tested), 

there is a reporting problem. How does the refiner report a batch of gasoline for purposes of the sulfur rule and 

the benzene rule? For sulfur you make a calculation and report the entire volume of conventional gasoline or 

RFG as a batch with the volume and properties of the ethanol calculated into the batch. (see 2nd comment). But 

with benzene apparently you must report two batches for conventional gasoline—one for the CBOB and another 

for the ethanol. How is that to be reconciled on the reports? One solution would be to calculate the tested 

value of the ethanol benzene, and the volume of the ethanol, into the conventional each gasoline sulfur batch. 

2. My colleague, Vance Kopp believes, based on long experience assisting the regulated industry with reporting, 

that many reporters will mess up the calculations of the batch sulfur content and volume based on the 

assumption approach. I suggest that to alleviate this problem the regulation, and the reporting forms, NEED TO 

INCLUDE FORMULAE for calculating the volume and the sulfur content of the combined product for each batch 

so that the calculation is relatively fail safe. 

 

Thanks for considering my random, rambling thoughts, 

 

Erv 

 

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 Ervin Pickell

 Weaver

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 D: 832-320-3205 ervin.pickell@weaver.com

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 Houston, TX 77046 

 P: 713.850.8787 F: 713.850.1673 

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2

From: Ervin Pickell 

Sent: Thursday, March 27, 2014 11:46 AM 

To: 'Herzog, Jeff'; 'Brunner, Christine'; Sutton.Tia@epa.gov 

Cc: Kodish.jeff@epa.gov 

Subject: Newest Tier 3 list

 

See bottom of list: 

 

1. Registration section: 80.1650: For each of the categories it says you have to register at the beginning of the 

program or when you start making fuel, oxygenate, etc., WHICHEVER IS EARLIER. This makes no sense. If you 

start up in a later year you would have to be clairvoyant. Jeff Herzog going to draft amendment to change 

language to account for this but to also account for people who wish to register early. 

2. Not sure what is intended for ethanol producer reporting. The regulations at § 80.1652(c) say they must file 

batch reports. Preamble says they just need to attest that they complied (I don’t think this is referring to an 

“attest audit”). Perhaps they meant to say file batch reports if you test your own ethanol but you don’t have to 

file batch reports if you purchase your denaturant from a certified denaturant producer. I’ve asked OTAQ to 

clarify. 

3. Preamble says refineries that have been shut down in 2012 to get small refinery status. Regs (80.1620(d)) say 

2011. 

4. I find the small refiner credit provisions to be a bit confusing since they are complex. Some examples from EPA 

would be nice. 

5. Testing requirements for ethanol: 80.1642(c)(3) has typos; needs editing. Section 80.1611 should perhaps be 

more clear—Makes more sense to say “330 ppm or less” instead of “330 ppm”. Section 80.1611(C)(1) has an 

extra period. 

6. Section 80.1613(b) should be more clear that the additive blender (truck loading terminals) cannot exceed the 

max treat rate provided by the additive manufacturer. 

7. Section 80.1640(a)(2), which pertains to producing gasoline by blending blendstocks to PCG, refers to 

(a)(5). Shouldn’t it instead refer to (a)(1)? 

8. Section 80.1609, pertaining to oxygenate blender requirements, refers to 80.1603(d)(4), which doesn’t exist. 

9. Section 80.65(e)(1), concerning RFG test requirements, seems to indicate that you don’t have to measure RVP 

for winter RFG but then goes on to say that for winter RFG you do have to measure RVP and do it on every batch 

basis? Section 80.101reiterates requirement for CG. See § 80.65(e)(4). The regulations still have no requirement 

to test summer CG RVP for every batch. 

10. Section 80.46 incorporation by reference lists the revised test methods by year, but 80.46 substantive provisions 

do not. Seems like it would be more clear if the substantive paragraphs listed the methods with years. 

11. Exports: The preamble says exports must be documented by designation and by PTDs and must be segregated 

from domestic products. I found the first 2 requirements in the regs but I didn’t find a segregation 

requirement. There is a segregation requirement for racing fuel, etc. Exports needs to have its own segregation 

requirement because it’s only a segregation from domestic fuels. 

 

Note, RFS could use clarification in this area as well. But I’m not sure the issue is exactly the same. With RFS it’s about 

whether the volume is yours, not whether you can document the parameters of the exported vs domestic product. For 

example, what if you produce a batch of gas using the PCG approach or the blendstock is a batch approach—are you 

prohibited from excluding any portion of that batch from your RVO? Seems like you should be able to proportion out 

the export to account for the mixture of PCG and blendstock, which is what I am hearing is industry practice. 

 

12. The Tier 3 rulemaking benzene amendment at § 80.1238 states that the benzene content of ethanol must be 

measured using the method in 80.46 until 80.47 kicks in. The only method stated in 80.46 is ASTM D3606. I 

have been told by a number of people that ASTM D 3606 doesn’t work for testing benzene in ethanol. Gasoline 

containing ethanol is one thing (the reg admits there are interference issues even there); pure ethanol is 

another. I had a brief conversation with Tom Woodside of EPA Ann Arbor and he agreed that 3606 probably 

won’t work well. I have been told by one refiner that ASTM D5769 does work. 
3

13. Section 80.1610(d) talks about batches of ethanol produced by ethanol producers for Tier 3 

testing/recordkeeping/reporting purposes. Shouldn’t the batch definition here be synced with the RFS defns? 

(sale/shipment or production both OK?) 

14. Section 80.1652(c) should not refer to oxygenate producers as oxygenate “refiners”. 

15. Section 80.1643: Is there any reason to make ethanol producers retain samples from each batch when they are 

using the sulfur assumption based on the certified denaturant producer’s test results? Since the ethanol 

producer gets to assume it’s contribution is zero, what’s the point? 

16. Section 80.1642(c)(2) seems to say when using the sulfur assumption the oxygen producer can assume the

ethanol prior to denaturant has zero sulfur but then goes on to say you can use some alternative value if you can 

support it. Why in the world would anyone use a value greater than zero? Am I missing something? 

17. Early credits: 2012-2013 Tier 2/early Tier 3 credits: Sections 80.1615 and 80.1616 are confusing because they 

discuss 2012 and 2013 credits separately from 2014-2016 early credits; but 2012 and 2013 early credits are 

handled exactly like 2014 credits (they have a life of 5 years AFTER the year they are generated. So a 2012 credit 

is good through 2017—i.e., it can be used for Tier 2 through 2016 or it can be used for Tier 3 in 2017. A 2013 

credit can be used for Tier 2 or it can be used for Tier 3 in 2017 or 2018. Early credits generated in 2015 and 

2016 are essentially the same except their lives are cut short of 5 years because all early credits expire at the 

end of 2019. 

18. There are strange and inconsistent dates for small refiner and small volume refinery applications. The date for 

domestic small refiners and small volume refiners is more stringent than for foreign refiners or for hardship 

refiners. Also, the preamble says June 1, 2016 for domestic small refiner status application whereas the 

regulation, at § 80.1622, says it’s Jan. 1, 2015. See Preamble, V.E.1. 

19. Section 80.82(b)(2)(i) says that off spec butane can be blended if the gasoline meets all standards and 

specifically cites EEP standards of 80.101(g)(3). Is that needed at this point? Only approved small refiners have 

a standard for toxics and it ends Jan. 1, 2015. They probably wouldn’t be doing “butane blending” under 80.82 

anyway. If it has to be mentioned for the rest of 2014, it should at least be clear that this only applies if you 

have a complex model standard (most butane blenders do not) and no matter who you are, you don’t have to 

show compliance with EEP complex model standards after Jan. 1, 2015. Also, it should be that it has to meet all 

applicable standards under this part not just CG standards (sulfur and benzene are not CG standards—they cross 

the CG/RFG pool. EEP also mentioned in (h)(1)—I guess in this context it really is a possibility that a small refiner 

could be involved so this could be valid until the end of 2014. But instead could just say all applicable 

standards? 

20. Section 80.82(i) requires even commercial grade butane is subject to the QA requirements just like noncommercial grade. It looks like there is now essentially no difference between commercial and non-commercial 

grade. If that’s the case there is no incentive for anyone to obtain or supply commercial grade butane. 

21. The pentane requirements (§ 80.85(c)) say that summer RVP testing has to ensure compliance with 80.27 or 

with applicable SIP requirements. Seems like § 80.82 should also add the SIP clause. 

22. Section 80.85(i) refers to “a” refiner but then uses the pronoun “they”. Should be “it” I think. 

23. Section 80.86(c): Shouldn’t there be a requirement for the pentane supplier to include its EPA registration 

number on its PTD to the refiner? 

24. Section 80.85 bounces back and forth between “refinery” and “refiner”. Early on, in the last phrase of (a), 

“refiner” seems more appropriate than “refinery”. 

25. Section 80.87. Need one of these for butane? If a distributor mixes pentane from different pentane producers, 

make him show on PTDs all the suppliers’ registration. Seems like you need to be able to track and also 

demonstrate whether it’s all commercial grade or not. Distributors are not going to care all that much. 

26. I see that 80.1653(i) has recordkeeping requirements for additive blenders. I don’t understand the need for this 

at least for detergents. This is already covered by the detergent regs and it’s confusing me whether this is 

creating some new requirement. I don’t think automated terminals can keep records for individual batches of 

gasoline—that’s why EPA allows VAR recordkeeping, right? Do you want to create a VAR requirement for all 

types of additives (aren’t most gasoline additives included in the detergent additive package?) 

27. Does exceeding the max concentration rate by an additive blender consititute a violation? If so, it’s not 

clear. The prohibitions (80.1660(e)) only prohibit exceeding the 3 ppm contribution. 

 
4

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 Ervin Pickell

 Weaver 

 Director

 Energy Compliance Services

 D: 832-320-3205 ervin.pickell@weaver.com

 24 Greenway Plaza, Suite 1800 

 Houston, TX 77046 

 P: 713.850.8787 F: 713.850.1673 

 Download vCard | View Bio 

 Locations Throughout Texas | weaver.com 

 An Independent Member of Baker Tilly International

 

 

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