National Petrochemical & Refiners Association 1667 K Street, NW

Suite 700

Washington, DC

20006

202.457.0480 voice 

202.457.0486 fax 

cdrevna@npra.org

Charles T. Drevna 

President 

 

VIA FEDERAL EXPRESS AND ELECTRONIC MAIL 

September 15, 2011 

Administrator Lisa P. Jackson 

U.S. Environmental Protection Agency 

Room 300, Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

(jackson.lisa@epa.gov) 

Assistant Administrator Gina McCarthy 

U.S. Environmental Protection Agency 

Office of Air and Radiation 

Ariel Rios Building, Mail Code 6101A 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

(mccarthy.gina@epa.gov) 

RE: Request for Partial Reconsideration of EPA’s “Misfueling Rule” 76 Fed. Reg. 44,406 

(July 25, 2011) 

Dear Administrator Jackson and Assistant Administrator McCarthy: 

The National Petrochemical & Refiners Association (“NPRA”) requests that the Environmental 

Protection Agency (“EPA”) reconsider certain provisions of the July 25, 2011 final rule 

regarding the misfueling of vehicles and engines with gasoline-ethanol blends (“Final Misfueling 

Rule”)1

. NPRA requests that EPA reconsider regulatory requirements and implementation 

policies affecting 10 percent gasoline-ethanol blends (“E10”), including product transfer 

document requirements applicable to E10, and labeling, survey and product transfer 

requirements that apply to gasoline-ethanol blends that will be considered to contain greater than 

10 and less than 15 volume percent ethanol (“E15”). 

This petition is in addition to the petition for reconsideration sent to you on August 17, 2011. 

That petition involved parts of the Final Misfueling Rule that were subject to implementation 

1

 Regulation To Mitigate the Misfueling of Vehicles and Engines With Gasoline Containing 

Greater Than Ten Volume Percent Ethanol and Modifications to the Reformulated and 

Conventional Gasoline Program, 76 Fed. Reg. 44,406 (July 25, 2011). 
Page 2 

concurrent with the effective date of August 24, 2011. Therefore, in our first petition NPRA 

requested that you stay and toll the effective date and compliance obligations for new labeling, 

survey and product transfer requirements contained in the Final Misfueling Rule. While that 

date has now passed, we would reiterate the urgency of your review of the matters addressed in 

our first petition. 

With regard to this petition, NPRA is concerned that the product transfer regulations at 40 C.F.R. 

80.1503 (the “PTD regulations”) are not comprehensive and do not address all situations. Since 

these requirements will be effective after October 31, 2011, NPRA requests that you take action 

well before that date to stay or otherwise delay the effectiveness of the provisions in order to 

allow time for an additional rulemaking process under which corrections could be finalized by 

the agency. 

I. EPA Did Not Address the Situation for Winter Conventional Gasoline Containing 10 

vol% Ethanol. 

Under the structure of the regulatory text found at 40 C.F.R. § 80.1503, it is not clear what the 

PTDs should include for winter gasoline containing 10 vol% ethanol. While certain information 

is specified with respect to the name and address of the transferor, transferee, volume amounts, 

location of the conventional blendstock and date of the transfer (see 40 C.F.R. 1503(a)(1)(i)-(v)), 

information regarding ethanol content and other matters is not specified. This is opposed to 

EPA’s treatment of information provisions contained in 40 C.F.R. §1503(a)(1)(vi)(A) and (B), 

which is applicable to summer gasoline. 

NPRA’s concern is that those who need to comply with the rule are uncertain as to how to create 

an appropriate product transfer document for winter gasoline. In this regard, NPRA suggests that 

EPA work with stakeholders in order to create a new 40 C.F.R. §1503(a)(1)(vii) by moving 

§1503(a)(1)(vi)(C) to cover information requirements for winter gasoline. This new or moved 

paragraph should have two subsections, one for gasoline containing up to 10 vol% ethanol and 

one for gasoline containing up to 15 vol% ethanol. When §1503(a)(1)(vi)(C) is moved, this 

provision should also replace “gasoline” with “gasoline or blendstock/gasoline for oxygenate 

blending.” 

NPRA believes that this is a matter which requires the agency’s prompt attention. Although the 

requirements will not be effective until October 31, 2011, parties affected by these regulatory 

requirements will be moving to prepare for supplying winter E10 conventional gasoline and 

conventional blendstock for oxygenate blending well ahead of that date. Thus, providing for a 

period where the regulations are not effective, in order to promulgate more understandable and 

clear requirements, is justified. 

II. Final Regulations Do Not Address the Situation Where the One PSI RVP Waiver Is 

Not Permitted by State Regulations for Summer Conventional Gasoline. 

There are areas in the United States where the one pound square inch (“psi”) Reid Vapor 

Pressure waiver is not permitted for summer conventional gasoline. These areas include New 

York, Maine, the city of Pittsburgh, and eastern Texas. This summer conventional gasoline is 

not clearly addressed in the PTD regulations. First, this gasoline is not designed for gasoline-
Page 3 

ethanol blends in 40 C.F.R. §80.27(d)(2) because the one psi RVP waiver is not applicable. Do 

all of these areas have approved SIPs? 40 C.F.R. §1503(a)(1)(vi)(B) applies when 40 C.F.R. 

§80.27(d)(2) applies. Does §80.27(d)(2) cover areas where the one psi RVP waiver is not 

applicable? Second, this gasoline is intended for blending with 10 vol% ethanol and 40 C.F.R. 

§1503(a)(1)(vi)(C) requires insertion of the following format: “Suitable for blending with 

ethanol at a concentration of no more than 15 vol % ethanol.” Is this an example or is this a 

required statement? This text does not clearly state that this conventional blendstock for 

oxygenate blending should only be blended with 10 vol% ethanol at the terminal. 

This could result in an anomalous situation. It would be confusing for a refiner to place two 

statements on the product transfer document. That is, in order to comply with 40 C.F.R. 

§1503(a)(1)(vi)(C), the refiner would include the information: “Suitable for blending with 

ethanol at a concentration of no more than 15 volume percent ethanol.” But, in addition, to 

attempt to notify the terminal, the following statement would be appropriate: “Suitable for 

blending with ethanol at a concentration of no more than 10 volume percent ethanol.” Therefore, 

the Agency should clarify the PTD regulations to address this situation, or otherwise supplement 

the current provisions contained at 40 C.F.R. §1503(a)(1). 

The Agency should clarify the appropriate PTD regulation in this case by creating another 

regulation, §1503(a)(1)(vi)(D). This new §1503(a)(1)(vi)(D) should have two subsections, one 

for gasoline containing up to 10 vol% ethanol and one for gasoline containing up to 15 vol% 

ethanol. 

In addition, EPA should revise §1503(a)(1)(vi)(C) as follows: “For gasoline not described in 

paragraphs (a)(1)(vi)(B) and (D) of this section, ...” Note that “(a)(vi)(B)” should be corrected 

as “(a)(1)(vi)(B)” in §1503(a)(1)(vi)(C). 

The Agency should provide clear guidance on PTD requirements for every scenario. Clarity is 

necessary to avoid regulated parties using different interpretations. NPRA will work with the 

Agency to define all of the situations. 

III. The regulatory provision for PTD codes should be moved. 

The Final Misfueling Rule includes 40 C.F.R. §1503(b)(2): “Except for transfers to truck 

carriers, retailers, or wholesale purchaser-consumers, product codes may be used to convey the 

information required under paragraph (b)(1) of this section if such codes are clearly understood 

by each transferee.” This should be moved to §1503(a) because §1503(b) only applies to parties 

downstream of an oxygenate blending facility, i.e., truck carriers, retailers, or wholesale 

purchaser-consumers. Since these codes are permitted only for parties upstream of an oxygenate 

blending facility, this regulatory provision should be moved out of §1503(b) and into §1503(a). 

For example, the Agency could create 40 C.F.R. §1503(a)(3): “Except for transfers to truck 

carriers, retailers, or wholesale purchaser-consumers, product codes may be used to convey the 

information required under paragraph (a)(1) of this section if such codes are clearly understood 

by each transferee.” 
Page 4 

IV. The PTD regulatory language does not provide sufficient flexibility to also comply 

with state standards. 

The PTD regulations require explicit language at 40 C.F.R. §1503(b)(1)(vi): 

(B) For gasoline containing less than 9.0 volume percent ethanol, the 

following statement: ‘‘EX — Contains up to X% ethanol. The RVP 

does not exceed [fill in appropriate value] psi.’’ The term X refers to the 

maximum volume percent ethanol present in the gasoline. 

(C) For gasoline containing between 9.0 and 10.0 volume percent 

ethanol (E10), the following statement: ‘‘E10: Contains between 9 and 

10 vol % ethanol. The RVP does not exceed [fill in appropriate value] 

psi. The 1.0 psi RVP waiver applies to this gasoline. Do not mix with 

gasoline containing anything other than between 9 and 10 vol % 

ethanol.’’ 

(D) For gasoline containing greater than 10.0 volume percent and not 

more than 15.0 volume percent ethanol (E15), the following statement: 

‘‘E15: Contains up to 15 vol % ethanol. The RVP does not exceed [fill 

in appropriate value] psi;’’ 

The Agency should be open to suggestions for alternative language for compliance with state 

standards. For example, a state could require a little more precision on the ethanol content and 

“up to X vol%” (where X is a number between 0 and 9) or “up to 15 vol%” may be too vague. 

The petroleum industry should have the flexibility to meet a state’s precision requirements while 

complying with the federal Final Misfueling Rule without disrupting the clarity of the PTD. 

V. A few other regulatory provisions should be clarified. 

The regulation at 40 C.F.R. §1503(a)(1)(vi)(B)(2) requires the insertion of a psi value for this 

“blendstock/gasoline for oxygenate blending.” What is required – the RVP of the BOB or the 

RVP that will not be exceeded by the BOB or the maximum RVP of the finished E10 gasoline? 

The provision at 40 C.F.R. §1503(a)(2) regarding reformulated blendstock for oxygenate 

blending (RBOB) should also be included in 40 C.F.R. §1503(b). The requirements in 40 C.F.R. 

§1503(b)(1) should not apply to RBOB. 

The regulation at 40 C.F.R. §1503(b)(1)(vi) states that the information regarding the RVP is only 

required for summer gasoline. The provision at 40 C.F.R. §1503(b)(1)(vi)(C) states that 9-10 

vol% ethanol summer gasoline should only be mixed with 9-10 vol% ethanol summer gasoline. 

Does EPA intend that this warning only apply to summer gasoline or should it apply year-round? 

The provision at 40 C.F.R. §1503(b)(1)(vi)(C) requires the insertion of a psi value. Is this value 

supposed to include the one psi RVP waiver? Was it your intention that this value be the 

applicable regulatory limit (including the one psi RVP waiver) or the actual RVP of the 

shipment? 
Page 5 

VI. Conclusion 

NPRA believes that changes are necessary to the current regulatory text for the Misfueling Rule 

to provide for uniform enforcement, standardized communications between refiners and 

terminals, and the successful implementation of the final rule. In addition, clarifying the 

requirements identified above and altering the regulations will also help to identify whether or 

not a refiner will be subject to regulations contained in 40 C.F.R. §1502 regarding survey 

requirements. Promulgating new regulatory text would serve to make it very clear whether the 

conventional gasoline blendstock for oxygenate blending was intended to manufacture E10 or 

E15. 

Altogether, NPRA believes that the omissions and uncertainty identified in this petition are 

inadvertent. Therefore, we would reiterate that the proper response of the Agency in this matter 

should involve an administrative stay in the effective date of the requirements, followed by 

actions to promulgate corrections to the regulatory text. In this regard, NPRA stands ready to 

work with EPA to resolve this matter in an expeditious fashion. 

If you have any questions regarding any matter contained in this petition, please contact Tim 

Hogan at 202-552-8462. 

Sincerely, 

Charles T. Drevna 

President 

cc: Margo Oge 

 Chet France 

 Paul Argyropoulos 

 Jeff Kodish 

 Paul Machiele 

 Karl Simon