```

[Federal Register: November 4, 2010 (Volume 75, Number 213)]
[Notices]               
[Page 68093-68150]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no10-114]                         

[[Page 68093]]

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Part III

Environmental Protection Agency

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Partial Grant and Partial Denial of Clean Air Act Waiver Application 
Submitted by Growth Energy To Increase the Allowable Ethanol Content of 
Gasoline to 15 Percent; Decision of the Administrator; Notice

[[Page 68094]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2009-0211; FRL-9215-5]

 
Partial Grant and Partial Denial of Clean Air Act Waiver 
Application Submitted by Growth Energy To Increase the Allowable 
Ethanol Content of Gasoline to 15 Percent; Decision of the 
Administrator

AGENCY: Environmental Protection Agency.

ACTION: Notice of partial waiver decision.

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SUMMARY: The Environmental Protection Agency (EPA) is partially 
granting Growth Energy's waiver request application submitted under 
section 211(f)(4) of the Clean Air Act. This partial waiver allows fuel 
and fuel additive manufacturers to introduce into commerce gasoline 
that contains greater than 10 volume percent ethanol and no more than 
15 volume percent ethanol (E15) for use in certain motor vehicles if 
certain conditions are fulfilled. We are partially approving the waiver 
for and allowing the introduction into commerce of E15 for use only in 
model year 2007 and newer light-duty motor vehicles, which includes 
passenger cars, light-duty trucks and medium-duty passenger vehicles. 
We are denying the waiver for introduction of E15 for use in model year 
2000 and older light-duty motor vehicles, as well as all heavy-duty 
gasoline engines and vehicles, highway and off-highway motorcycles, and 
nonroad engines, vehicles, and equipment. The Agency is deferring a 
decision on the applicability of a waiver to model year 2001 through 
2006 light-duty motor vehicles until additional test data, currently 
under development, is available.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2009-0211. All documents and public comments in the 
docket are listed on the http://www.regulations.gov Web site. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the Air and Radiation 
Docket in the EPA Headquarters Library, EPA West Building, Room 3334, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
holidays. The telephone number for the Reading Room is (202) 566-1744. 
The Air and Radiation Docket and Information Center's Web site is 
http://www.epa.gov/oar/docket.html. The electronic mail (e-mail) 
address for the Air and Radiation Docket is: a-and-r-Docket@epa.gov, 
the telephone number is (202) 566-1742 and the fax number is (202) 566-
9744.

FOR FURTHER INFORMATION CONTACT: Robert Anderson, Office of 
Transportation and Air Quality, Mailcode: 6405J, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: (202) 343-9718; fax number: (202) 343-2800; e-mail 
address: Anderson.Robert@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
     MY2007 and Newer Light-Duty Motor Vehicles
     Durability/Long-Term Exhaust Emissions
     Immediate Exhaust Emissions
     Evaporative Emissions
     Materials Compatibility
     Drivability and Operability
     MY2000 and Older Light-Duty Motor Vehicles
     MY2001-2006 Light-Duty Motor Vehicles
     Nonroad Engines, Vehicles, and Equipment (Nonroad 
Products)
     Heavy-Duty Gasoline Engines and Vehicles
     Highway and Off-Highway Motorcycles
     Conditions on Today's Partial Waiver
     Misfueling Mitigation Measures Notice of Proposed 
Rulemaking (NPRM)
II. Introduction
    A. Statutory Background
    B. Growth Energy Application and Review Process
    C. Today's Notice of Proposed Rulemaking (NPRM) on Misfueling 
Mitigation Measures
III. Method of Review
IV. Waiver Submissions and Analysis of Light-Duty Motor Vehicle 
Issues
    A. MY2007 and Newer Motor Vehicles
    1. Exhaust Emissions--Long-Term Durability
    a. Growth Energy's Submission
    b. Public Comment Summary
    c. EPA Response Regarding the Need for Long-Term Exhaust 
Emissions (Durability) Testing
    i. General Long-term Exhaust Emissions (Durability) Concerns
    ii. Response to Growth Energy's First Argument
    iii. Conclusion to Growth Energy's Second Argument
    d. Durability Studies and EPA Analysis
    i. DOE Catalyst Study Overview
    ii. Vehicle Selection and Matching
    iii. Fuels and Blending
    iv. Emissions Test Protocol
    v. Mileage Accumulation
    vi. Powertrain Component Inspection
    vii. Summary and Conclusions of the Final Results of the DOE 
Catalyst Study
    2. Exhaust Emissions--Immediate Effects for MY2007 and Newer 
Light-Duty Motor Vehicles
    a. Growth Energy's Submission
    b. Public Comment Summary
    c. EPA Analysis
    d. Conclusion
    3. Evaporative Emissions on MY2007 and Newer Light-Duty Motor 
Vehicles
    a. Introduction
    b. Growth Energy's Submission
    c. Public Comment Summary
    d. EPA Analysis
    e. Conclusion
    4. Materials Compatibility for MY2007 and Newer Light-Duty Motor 
Vehicles
    a. Introduction
    b. Growth Energy's Submission
    c. Public Comment Summary
    d. EPA Analysis
    e. Conclusions
    5. Driveability and Operability for MY2007 and Newer Light-Duty 
Motor Vehicles
    a. Introduction
    b. Growth Energy's Submission
    c. Public Comment Summary
    d. EPA Analysis
    e. Conclusions
    6. Overall Immediate and Long-Term Emissions Conclusions
    B. MY2001-2006 Light-Duty Motor Vehicles
    C. MY2000 and Older Light-Duty Motor Vehicles
    1. Growth Energy's Submission
    2. Public Comment Summary
    3. EPA Analysis and Conclusion
    a. Scope of MY2000 and Older Motor Vehicles Data to Support a 
Waiver Decision
    b. Exhaust Emissions--Long-Term Durability
    i. General Exhaust Emissions Durability Concerns
    ii. Immediate Exhaust Emission Impacts
    c. Evaporative Emissions
    d. Materials Compatibility
V. Nonroad Engines, Vehicles and Equipment (Nonroad Products)
    A. Introduction
    B. Growth Energy Submission
    C. Public Comment Summary
    D. EPA Analysis
    1. Scope of Nonroad Data to Support a Waiver Decision
    2. Long-Term Exhaust Emissions (Durability)
    3. Immediate Exhaust Emission Effects
    4. Evaporative Emissions
    5. Materials Compatibility
    6. Driveability and Operability
    E. Conclusion
VI. Heavy-Duty Gasoline Engines and Vehicles
VII. Motorcycles
VIII. E12 Midlevel Ethanol Blends
    A. First Argument: E12 Is Already Used in the Marketplace With 
No Reported Problems
    1. ADM Argument
    2. Comments
    3. EPA Analysis
    B. Second Argument: EPA Effectively Allows Ethanol Blends 
Greater Than E10
    1. ADM Argument
    2. EPA Analysis
    C. Third Argument: EPA's Models Allow Greater Than 10 vol% 
Ethanol
    1. ADM Argument
    2. API and Alliance Comments

[[Page 68095]]

    3. EPA Analysis
    D. Fourth Argument: ADM's Argument for an E12 Waiver
    1. ADM Argument
    2. API, AllSAFE and Alliance Comments
    3. EPA Response
    E. Fifth Argument: E12 Is ``Substantially Similar'' to 
Certification Fuel
    1. ADM Argument
    2. API, AllSAFE and Alliance Comments
    3. EPA Response
    F. EPA Conclusion
IX. Legal Issues Arising in This Partial Waiver Decision
    A. Partial Waiver and Conditions of E15 Use
    B. Notice and Comment Procedures
    C. ``Useful Life'' Language in Section 211(f)(4)
X. Waiver Conditions
    A. Fuel Quality Conditions
    B. Misfueling Mitigation Conditions and Strategies
    1. Fuel Pump Dispenser Labeling
    2. Fuel Pump Labeling and Fuel Sample Survey
    3. Proper Documentation of Ethanol Content on Product Transfer 
Documents
    4. Public Outreach
XI. Reid Vapor Pressure
XII. Partial Waiver Decision and Conditions

I. Executive Summary

    In March 2009, Growth Energy and 54 ethanol manufacturers 
petitioned the Environmental Protection Agency (``EPA'' or ``The 
Agency'') to allow the introduction into commerce of up to 15 volume 
percent (vol%) ethanol in gasoline. In April 2009, EPA sought public 
comment on the Growth Energy petition and subsequently received about 
78,000 comments. Prior to today's action, ethanol was limited to 10 
vol% in motor vehicle gasoline (E10).
    In today's action, EPA is partially granting Growth Energy's waiver 
request based on our careful analysis of the available information, 
including test data and public comments. This partial grant waives the 
prohibition on fuel and fuel additive manufacturers on the introduction 
into commerce of gasoline containing greater than 10 vol% ethanol and 
no more than 15 vol% ethanol (E15) for use in certain motor vehicles. 
More specifically, today's action has two components. First, we are 
approving the waiver for and allowing the introduction into commerce of 
E15 for use in Model Year (MY) 2007 and newer light-duty motor 
vehicles, which includes passenger cars, light-duty trucks, and medium-
duty passenger vehicles.\1\ Second, we are denying the waiver for 
introduction into commerce of E15 for use in MY2000 and older light-
duty motor vehicles, as well as heavy-duty gasoline highway engines and 
vehicles (e.g., delivery trucks). Highway and off-highway motorcycles, 
and nonroad engines, vehicles, and equipment (nonroad products; e.g., 
boats, snowmobiles, and lawnmowers) typically use the same gasoline as 
highway motor vehicles; this decision is also a denial of a waiver for 
introducing motor vehicle gasoline into commerce containing more than 
10 vol% ethanol for use in all of those products. The Agency is 
deferring a decision on the applicability of a waiver with respect to 
MY2001-2006 light-duty motor vehicles to await additional test data. 
The Department of Energy (DOE) has stated that it will complete testing 
on these vehicles in November, after which EPA will take appropriate 
action.
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    \1\ For purposes of today's decision, ``MY2007 and newer light-
duty motor vehicles'' include MY2007 and newer light-duty motor 
vehicles (LDV), light-duty trucks (LDT), and medium-duty passenger 
vehicles (MDPV).
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    To help ensure that E15 is only used in MY2007 and newer light-duty 
motor vehicles, EPA has developed a proposed rule (described below) 
with the express purpose of mitigating the potential for misfueling of 
E15 into vehicles and engines not approved for its use. EPA believes 
the proposed safeguards against misfueling would provide the most 
practical way to mitigate the potential for misfueling with E15. 
Moreover, the proposed rule, when adopted, would satisfy the misfueling 
mitigation conditions of today's partial waiver described below and 
would promote the successful introduction of E15 into commerce. 
However, if parties covered by this waiver (fuel and fuel additive 
manufacturers, which include renewable fuel producers and importers, 
petroleum refiners and importers, and ethanol blenders) desire to 
introduce E15 into commerce prior to a final rule being issued, they 
may do so provided they submit and EPA approves a plan that 
demonstrates that the misfueling mitigation conditions will be 
satisfied. In addition to the misfueling mitigation conditions, E15 
must also meet certain fuel quality specifications before it may be 
introduced into commerce.
    To receive a waiver, as prescribed by the Clean Air Act, a fuel or 
fuel additive manufacturer must demonstrate that a new fuel or fuel 
additive will not cause or contribute to the failure of an engine or 
vehicle to achieve compliance with the emission standards to which it 
has been certified over its useful life. Reflecting that EPA's emission 
standards have continued to evolve and become more stringent over time, 
the in-use fleet is composed of vehicles and engines spanning not only 
different technologies, but also different emissions standards. Since 
ethanol affects different aspects of emissions, a wide range of data 
and information covering a wide range of highway and nonroad vehicles, 
engines, and equipment would be necessary for approval of an E15 waiver 
that would allow E15 to be introduced into commerce for use in all 
motor vehicles and all other engines and vehicles using motor vehicle 
gasoline (``full waiver''). Growth Energy did not provide the necessary 
information to support a full waiver in several key areas, especially 
long-term durability emissions data necessary to ensure that all motor 
vehicles, heavy-duty gasoline highway engines and vehicles, highway and 
off-highway motorcycles and nonroad products would continue to comply 
with their emission standards over their full useful life. In 2008, DOE 
began emissions durability testing on 19 Tier 2 motor vehicle models 
that would provide this data for MY2007 and newer light-duty motor 
vehicles (``DOE Catalyst Study'').\2\ Consequently, the Agency delayed 
a decision until the DOE test program was completed for these motor 
vehicles in September 2010.
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    \2\ DOE embarked on the study, in consultation with EPA, auto 
manufacturers, fuel providers and others, after enactment of the 
Energy Independence and Security Act of 2007, which significantly 
expanded the Federal Renewable Fuel Standard Program for increasing 
the use of renewable fuels in transportation fuel in order to reduce 
imported petroleum and emissions of greenhouse gases.
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    EPA reached its decision on the waiver request based on the results 
of the DOE Catalyst Study and other information and test data submitted 
by Growth Energy and in public comments. EPA also applied engineering 
judgment, based on the data in reaching its decision. Specifically, 
consistent with past waiver decisions, the Agency evaluated Growth 
Energy's waiver request and made its decision based on four factors: 
(1) Exhaust emissions impacts--long-term (known as durability) and 
immediate; (2) evaporative system impacts--both immediate and long-
term; (3) the impact of materials compatibility on emissions; and, (4) 
the impact of drivability and operability on emissions. The Agency's 
conclusions are summarized below and additional information on each 
subject is provided later in this decision document.

MY2007 and Newer Light-Duty Motor Vehicles

    For MY2007 and newer light-duty motor vehicles, the DOE Catalyst 
Study and other information before EPA adequately demonstrates that the 
impact of E15 on overall emissions, including both immediate \3\ and 
durability related

[[Page 68096]]

emissions, will not cause or contribute to violations of the emissions 
standards for these motor vehicles. Likewise, the data and information 
adequately show that E15 will not lead to violations of the evaporative 
emissions standards, so long as the fuel does not exceed a Reid Vapor 
Pressure (RVP) of 9.0 psi in the summertime control season.\4\ The 
information on materials compatibility and drivability also supports 
this conclusion.
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    \3\ In past waiver decisions, we have referred to ``immediate'' 
emissions as ``instantaneous'' emissions. ``Immediate'' and 
``instantaneous'' are synonymous in this context.
    \4\ EPA regulates the vapor pressure of gasoline sold at retail 
stations during the summer ozone season (June 1 to September 15) to 
reduce evaporative emissions from gasoline that contribute to 
ground-level ozone and diminish the effects of ozone-related health 
problems. Gasoline needs a higher vapor pressure in the wintertime 
for cold start purposes.
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Durability/Long-Term Exhaust Emissions
    The DOE Catalyst Study involved 19 high sales volume car and light-
duty truck models (MY2005-2009 motor vehicles produced by the top U.S. 
sales-based automobile manufacturers) that are all designed for and 
subject to the Tier 2 motor vehicle emission standards. The purpose of 
the program was to evaluate the long term effects of E0 (gasoline that 
contains no ethanol and is the certification test fuel for emissions 
testing), E10, E15, and E20 (a gasoline-ethanol blend containing 20 
vol% ethanol) on the durability of the exhaust emissions control 
system, especially the catalytic converter (catalyst), for Tier 2 motor 
vehicles. Analysis of the motor vehicles' emissions results at full 
useful life (120,000 miles) and emissions deterioration rates showed no 
significant difference between the E0 and E15 fueled groups. Three 
motor vehicles aged on EO fuel had failing emissions levels and one 
additional motor vehicle failed one of several replicate tests. One 
E15-aged motor vehicle had failing emissions.\5\ However, none of the 
emissions failures appeared to be related to the fuel used. There were 
no emissions component or material failures during aging that were 
related to fueling. In addition, a review of the emission deterioration 
rates over the course of the test program revealed no statistically 
significant difference in emissions deterioration with E15 in 
comparison to E0. Using standard statistical tools, the test results 
support the conclusion that E15 does not cause or contribute to the 
failure of MY2007 and newer light-duty motor vehicles in achieving 
their emissions standards over their useful lives. These results 
confirm EPA's engineering assessment that the changes manufacturers 
made to their motor vehicles (calibration, hardware, etc.) to comply 
with the Agency's stringent Tier 2 emission standards (which began to 
phase in with MY2004) have resulted in the capability of Tier 2 motor 
vehicles to accommodate the additional enleanment caused by E15 and be 
compatible with ethanol concentrations up to E15.\6\. EPA's 
certification data show that all gasoline-fueled cars and light-duty 
trucks were fully phased in to the Tier 2 standards by MY2007 even 
though the program did not require the phase-in to be complete until 
MY2009. Consequently, EPA believes it appropriate to apply these test 
results to all MY2007 and newer light-duty motor vehicles.
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    \5\ It should be noted that the Dodge Caliber vehicle aged on 
E15 failed Tier 2 Bin 5 FUL standards on E0. However, this vehicle 
met Tier 2 Bin 5 FUL standards when tested on E15. The Agency could 
not determine the cause.
    \6\ See 65 FR 6698 (February 10, 2000).
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Immediate Exhaust Emissions
    Scientific information supports a conclusion that motor vehicles 
experience an immediate emissions impact independent of motor vehicle 
age (and therefore emission control technology) when operating on 
gasoline-ethanol blends. Nitrogen oxide (NOX) emissions 
generally increase while volatile organic compound (VOC) and carbon 
monoxide (CO) emissions decrease. The available data supports a 
conclusion that the immediate emissions impacts of E15 on Tier 2 motor 
vehicles are likely to have the same pattern as the immediate emissions 
impacts of E10 on older motor vehicles (i.e., NOX emissions 
increase while VOC and CO emissions decrease). Although the magnitude 
of the immediate impact is expected to be slightly greater with E15, 
Tier 2 motor vehicles generally have a significant compliance margin at 
the time of certification and later on in-use (when they are in 
customer service) that should allow them to meet their emission 
standards even if they experience the predicted immediate 
NOX increases from E15 when compared to E0. The results of 
the DOE Catalyst Study reflect both the immediate emissions effects as 
well as any durability effects as described above, and the Tier 2 motor 
vehicles continued to comply with their emissions standards at their 
full useful life. As noted above, none of the emissions failures 
appeared to be related to the fuel used. Based on this immediate 
exhaust emissions information, coupled with the durability test data 
and conclusions, E15 is not expected to cause Tier 2 motor vehicles to 
exceed their exhaust standards over their useful lives when operated on 
E15.
Evaporative Emissions
    Both diurnal and running loss evaporative emissions increase as 
fuel volatility increases. Diurnal evaporative emissions occur when 
motor vehicles are not operating and experience the change in 
temperature during the day, such as while parked. Running loss 
evaporative emissions occur while motor vehicles are being operated. 
Reid Vapor Pressure (RVP) is the common measure of the volatility of 
gasoline. E15 that meets an RVP limit of 9.0 pounds per square inch 
(psi) during the summer (which is equal to the RVP of E0) should not 
produce higher diurnal or running loss evaporative emissions than E0. 
We expect MY2007 and newer vehicles to meet evaporative emissions 
standard on 9.0 psi E15. There are concerns with E15 having an RVP 
greater than 9.0 psi. When ethanol is blended at 15 vol%, a 10.0 psi 
RVP fuel compared to 9.0 psi RVP fuel will have substantially higher 
evaporative emissions levels that must be captured by the emissions 
control system (a carbon filled canister and related system elements). 
This increase in evaporative emissions is beyond what manufacturers 
have been required to control, based on the motor vehicle certification 
testing for the emissions standards. Test results highlight the concern 
that fuel with an RVP greater than 9.0 psi during the summer will lead 
to motor vehicles exceeding their evaporative emission standards in-
use. Additionally, as explained in the misfueling mitigation measures 
proposed rule, EPA interprets the 1.0 psi waiver in CAA section 211(h) 
as being limited to gasoline-ethanol blends that contain 10 vol% 
ethanol. Therefore, given the significant potential for increased 
evaporative emissions at higher gasoline volatility levels, and the 
lack of data to resolve how this would impact compliance with the 
emissions standards, today's waiver is limited to E15 with a summertime 
RVP no higher than 9.0 psi.
    Other potential issues for evaporative emissions of motor vehicles 
operated on E15 are increased permeation and long-term (durability) 
impacts.\7\ Available test data indicate that for Tier 2 motor vehicles 
any increase in evaporative emissions as a result of permeation is 
limited and within the evaporative

[[Page 68097]]

compliance margins for these motor vehicles. This is consistent with 
the demonstration of evaporative emissions system durability after 
aging on E10 that was required beginning with the Tier 2 motor vehicle 
standards, for the purpose of limiting permeation. With respect to 
durability of the evaporative emissions control systems, data from 
several aspects of the DOE Catalyst Study point to the expected 
durability of the evaporative emissions control system of Tier 2 motor 
vehicles on E15. First, there appears to be no evidence of an increase 
in evaporative emissions system onboard diagnostic system codes being 
triggered by E15 compared to E0. Second, teardown results of the 12 
motor vehicles tested (six models with E0 and six models with E15) 
found no abnormalities for E15 motor vehicles compared to E0 motor 
vehicles.\8\ Finally, evaporative testing on four of the Tier 2 motor 
vehicles over the course of the test program found no increased 
deterioration in evaporative emissions with E15 in comparison to E0.\9\ 
Therefore, after taking into account all of these sources of 
evaporative emissions data, the evidence supports a conclusion that as 
long as E15 meets a summertime control season gasoline volatility level 
of no higher than 9.0 psi, E15 is not expected to cause or contribute 
to exceedances of the evaporative emission standards over the full 
useful life of Tier 2 motor vehicles.
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    \7\ Permeation refers to the migration of fuel molecules through 
the walls of elastomers used for fuel system components.
    \8\ Southwest Research Institute Project 08-58845 Status Report, 
``Powertrain Component Inspection from Mid-Level Blends Vehicle 
Aging Study,'' September 6, 2010. See EPA-HQ-OAR-2009-0211-14016.
    \9\ Environmental Testing Corporation NREL Subcontract JGC-9-
99141-01 Presentation, ``Vehicle Aging and Comparative Emissions 
testing Using E0 and E15 Fuels: Evaporative Emissions Results,'' 
August 31, 2010. See EPA-HQ-OAR-2009-0211-14015.
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Materials Compatibility
    Materials compatibility is a key factor in considering a fuel or 
fuel additive waiver insofar as poor materials compatibility can lead 
to serious exhaust and evaporative emission compliance problems not 
only immediately upon use of the new fuel or fuel additive, but 
especially over the full useful life of vehicles and engines. As part 
of its E15 waiver application, Growth Energy submitted a series of 
studies completed by the State of Minnesota and the Renewable Fuels 
Association (RFA) that investigated materials compatibility of motor 
vehicle engines and engine components using three test fuels: E0, E10, 
and E20. The materials studied included what were considered to be many 
of the common metals, elastomers, and plastics used in motor vehicle 
fuel systems. Growth Energy concluded that E15 would not be problematic 
for current automotive or fuel dispensing equipment. While 
directionally illustrative, the materials compatibility information 
submitted by Growth Energy does not encompass all materials used in 
motor vehicle fuel systems, and the test procedures used are not 
representative of the dynamic real-world conditions under which the 
materials must perform. The information is therefore insufficient by 
itself to adequately assess the potential material compatibility of 
E15. However, the information generated through the DOE Catalyst Study 
demonstrates that MY2007 and newer light-duty motor vehicles will not 
experience materials compatibility issues that lead to exhaust or 
evaporative emission exceedances. The DOE Catalyst Study supports the 
Agency's engineering assessment that newer motor vehicles such as those 
subject to EPA's Tier 2 standards, were designed to encounter more 
regular ethanol exposure compared to earlier model year motor vehicles. 
Other regulatory requirements also placed an emphasis on real world 
motor vehicle testing, which in turn prompted manufacturers to consider 
different available fuels when developing and testing their emissions 
systems. Additionally, beginning with Tier 2, the evaporative 
durability demonstration procedures required the use of E10. As a 
result, based on the information before us, we do not expect E15 to 
raise emissions related materials compatibility issues for Tier 2 motor 
vehicles.
Drivability and Operability
    There is no evidence from any of the test programs cited by Growth 
Energy or in the data from the DOE Catalyst Study of driveability 
issues for Tier 2 motor vehicles fueled with E15 that would indicate 
that use of E15 would lead to increased emissions or that might cause 
motor vehicle owners to want to tamper with the emission control system 
of their motor vehicle. The Agency reviewed the data and reports from 
the different test programs, and found no specific report of 
driveability or operability issues across the many different motor 
vehicles and duty cycles, including lab testing and in-use operation.

MY2000 and Older Light-Duty Motor Vehicles

    For MY2000 and older motor vehicles, the data and information 
before EPA fail to adequately demonstrate that the impact of E15 on 
exhaust emissions--both immediate and durability-related--will not 
cause or contribute to violations of the emissions standards for these 
motor vehicles. MY2000 and older motor vehicles do not have the 
sophisticated emissions control systems of today's Tier 2 motor 
vehicles, and there is an engineering basis to believe they may 
experience conditions affecting catalyst durability that lead to 
emission increases if operated on E15. This emissions impact, over 
time, combined with the expected immediate increase in NOX 
emissions from the use of E15, provides a clear basis for concern that 
E15 could cause these motor vehicles to exceed their emissions 
standards over their useful lives. Furthermore, some MY2000 and older 
motor vehicles were likely designed for no more than limited exposure 
to ethanol, since gasoline-ethanol blends were not used in most areas 
of the country at the time they were designed. Their fuel systems, 
evaporative emissions control systems, and internal engine components 
may not have been designed and tested for long-term durability, 
materials compatibility, or drivability with fuels containing ethanol. 
The limited exhaust emissions durability test data, evaporative 
emissions durability test data, and real-world materials compatibility 
test data either provided by Growth Energy in their petition or 
available in the public domain do not address or resolve these 
concerns. Therefore, the information before the Agency is not adequate 
to make the demonstration needed to grant a waiver for the introduction 
into commerce of E15 for use in MY2000 and older light-duty motor 
vehicles.

MY2001-2006 Light-Duty Motor Vehicles

    EPA is deferring a decision on MY2001-2006 light-duty motor 
vehicles. DOE is in the process of conducting additional catalyst 
durability testing that will provide data regarding MY2001-2006 motor 
vehicles. The DOE testing is scheduled to be completed by the end of 
November 2010. EPA will make the DOE test results available to the 
public and consider the results and other available data and 
information in making a determination on the introduction into commerce 
of E15 for use in those model year motor vehicles. EPA expects to make 
a determination for these motor vehicles shortly after the results of 
DOE testing are available.

Nonroad Engines, Vehicles, and Equipment (Nonroad Products)

    The nonroad product market is extremely diverse. Nonroad products

[[Page 68098]]

with gasoline engines include lawn mowers, chainsaws, forklifts, boats, 
personal watercraft, and all-terrain vehicles. Growth Energy did not 
provide information needed to broadly assess the potential impact of 
E15 on compliance of nonroad products with applicable emissions 
standards. Nonroad products typically have more basic engine designs, 
fuel systems, and controls than light-duty motor vehicles. The Agency 
has reasons for concern with the use of E15 in nonroad products, 
particularly with respect to long-term exhaust and evaporative 
emissions durability and materials compatibility. The limited 
information provided by Growth Energy and commenters, or otherwise 
available in the public domain, did not alleviate these concerns. As 
such, the Agency cannot grant a waiver for introduction into commerce 
of E15 motor vehicle gasoline that is also for use in nonroad products.

Heavy-Duty Gasoline Engines and Vehicles

    Given their relatively small volume compared to light-duty motor 
vehicles, heavy-duty gasoline engines and vehicles have not been the 
focus of test programs and efforts to assess the potential impacts of 
E15 on them. Growth Energy did not provide any data specifically 
addressing how heavy-duty gasoline engines' and vehicles' emissions and 
emissions control systems would be affected by the use of E15 over the 
full useful lives of these vehicles and engines. Additionally, from a 
historical perspective, the introduction of heavy-duty gasoline engine 
and vehicle technology has lagged behind the implementation of similar 
technology for light-duty motor vehicles. Similarly, emission standards 
for this sector have lagged behind those of light-duty motor vehicles, 
such that current heavy-duty gasoline engine standards remain 
comparable, from a technology standpoint to older light-duty motor 
vehicle standards. Consequently, we believe the concerns expressed 
above regarding MY2000 and older motor vehicles are also applicable to 
the majority of the in-use fleet of heavy-duty gasoline engines and 
vehicles. As such, the Agency cannot grant a waiver for the 
introduction into commerce of E15 for use in heavy-duty gasoline 
engines and motor vehicles.

Highway and Off-Highway Motorcycles

    Like heavy-duty gasoline engines and vehicles, highway and off-
highway motorcycles have not been the focus of E15 test programs. 
Growth Energy did not provide any data addressing how motorcycle 
emissions and emissions control systems would specifically be affected 
by the use of E15 over their full useful lives. While newer motorcycles 
incorporate some of the advanced fuel system and emission control 
technologies that are found in passenger cars and light-duty trucks, 
such as electronic fuel injection and catalysts, many do not have the 
specific control technology of today's motor vehicles (advanced fuel 
trim control) that would allow them to adjust to the higher oxygen 
content of E15. More importantly, older motorcycles do not have any of 
these technologies and are therefore more on par with nonroad products 
in some cases and MY2000 and older motor vehicles in others. As such, 
the Agency cannot grant a waiver for the introduction into commerce of 
E15 for use in highway and off-highway motorcycles.

Conditions on Today's Partial Waiver

    There are two types of conditions being placed on the partial 
waiver being granted today: Those for mitigating the potential for 
misfueling of E15 in all vehicles, engines and equipment for which E15 
is not approved, and those addressing fuel and ethanol quality. All of 
the conditions are discussed further below and are listed in Section 
XII.
    EPA believes that the misfueling mitigation measures in the 
proposed rule accompanying today's waiver decision would provide the 
most practical way to ensure that E15 is only used in vehicles for 
which it is approved. However, if any fuel or fuel additive 
manufacturer desires to introduce into commerce E15, gasoline intended 
for use as E15, or ethanol intended for blending with gasoline to 
create E15, prior to the misfueling mitigation measures rule becoming 
final and effective, they may do so provided they implement all of the 
conditions of the partial waiver, including an EPA-approved plan that 
demonstrates that the fuel or fuel additive manufacturer will implement 
the misfueling mitigation conditions discussed below.

Misfueling Mitigation Notice of Proposed Rulemaking (NPRM)

    As mentioned above, EPA is proposing a regulatory program that 
would help mitigate the potential for misfueling with E15 and promote 
the successful introduction of E15 into commerce. The proposal includes 
several provisions that parallel the misfueling mitigation conditions 
on the E15 waiver. First, the proposed rule would prohibit the use of 
gasoline-ethanol blended fuels containing greater than 10 vol% and up 
to 15 vol% ethanol in vehicles and engines not covered by the partial 
waiver for E15. Second, the proposed rule would require all fuel 
dispensers to have a label if a retail station chooses to sell E15, and 
it seeks comment on separate labeling requirements for blender pumps 
and fuel pumps that dispense E85. Finally, the proposed rule would 
require product transfer documents (PTDs) specifying ethanol content 
and RVP to accompany the transfer of gasoline blended with ethanol as 
well as a national survey of retail stations to ensure compliance with 
the these requirements. In addition to proposing actions to mitigate 
misfueling, the proposed rule would modify the Reformulated Gasoline 
(``RFG'') program by updating the Complex Model to allow fuel 
manufacturers to certify batches of gasoline containing up to 15 vol% 
ethanol. Once adopted, these regulations would facilitate the 
introduction of E15 into commerce under this partial waiver, as certain 
requirements in the regulations would satisfy certain conditions in the 
waiver. If EPA adopts such a rule, EPA would consider any appropriate 
modifications to the conditions of this waiver.

II. Introduction

A. Statutory Background

    Section 211(f)(1) of the Clean Air Act (``CAA'' or ``the Act'') 
makes it unlawful for any manufacturer of any fuel or fuel additive to 
first introduce into commerce, or to increase the concentration in use 
of, any fuel or fuel additive for use by any person in motor vehicles 
manufactured after model year 1974 which is not substantially similar 
to any fuel or fuel additive utilized in the certification of any model 
year 1975, or subsequent model year, vehicle or engine under section 
206 of the Act. The Environmental Protection Agency (``EPA'' or ``the 
Agency'') last issued an interpretive rule on the phrase 
``substantially similar'' at 73 FR 22281 (April 25, 2008). Generally 
speaking, this interpretive rule describes the types of unleaded 
gasoline that are likely to be considered ``substantially similar'' to 
the unleaded gasoline utilized in EPA's certification program by 
placing limits on a gasoline's chemical composition as well as its 
physical properties, including the amount of alcohols and ethers 
(oxygenates) that may be added to gasoline. Fuels that are found to be 
``substantially similar'' to EPA's certification fuels may be 
registered and introduced into commerce. The current ``substantially 
similar'' interpretive rule for unleaded gasoline allows oxygen content 
up to 2.7% by weight for certain

[[Page 68099]]

ethers and alcohols.\10\ E10 (a gasoline-ethanol blend containing 10 
vol% ethanol) contains approximately 3.5% oxygen by weight and received 
a waiver of this prohibition by operation of law under section 
211(f)(4).\11\ E15 (gasoline-ethanol blended fuels containing greater 
than 10 vol% ethanol and up to 15 vol% ethanol) has greater than 2.7 
wt% oxygen content, and Growth Energy has applied for a waiver under 
section 211(f)(4) of the Act.
---------------------------------------------------------------------------

    \10\ See 56 FR 5352 (February 11, 1991).
    \11\ As explained at 44 FR 20777 (April 6, 1979), EPA did not 
grant or deny a waiver request for a fuel containing 90% unleaded 
gasoline and 10% ethyl alcohol within 180 days of receiving that 
request. By operation of a provision that was at that time included 
in section 211(f)(4), E10 was no longer subject to the prohibitions 
in CAA section 211(f)(1) of the Act. That provision has subsequently 
been removed.
---------------------------------------------------------------------------

    Section 211(f)(4) of the Act provides that upon application of any 
fuel or fuel additive manufacturer, the Administrator may waive the 
prohibitions of section 211(f)(1) if the Administrator determines that 
the applicant has established that such fuel or fuel additive, or a 
specified concentration thereof, will not cause or contribute to a 
failure of any emission control device or system (over the useful life 
of the motor vehicle, motor vehicle engine, nonroad engine or nonroad 
vehicle in which such device or system is used) to achieve compliance 
by the vehicle or engine with the emission standards to which it has 
been certified pursuant to sections 206 and 213(a). In other words, the 
Administrator may grant a waiver for a prohibited fuel or fuel additive 
if the applicant can demonstrate that the new fuel or fuel additive 
will not cause or contribute to engines, vehicles or equipment to fail 
to meet their emissions standards over their useful lives. The statute 
requires that the Administrator shall take final action to grant or 
deny the application, after public notice and comment, within 270 days 
of receipt of the application.
    The current section 211(f)(4) reflects the following changes made 
by the Energy Independence and Security Act of 2007: (1) Requires 
consideration of the impact on nonroad engines and nonroad vehicles in 
a waiver decision; (2) extends the period allowed for consideration of 
the waiver request application from 180 days to 270 days; and, (3) 
deletes a provision that resulted in a waiver request becoming 
effective by operation of law if the Administrator made no decision on 
the application within 180 days of receipt of the application.\12\
---------------------------------------------------------------------------

    \12\ As noted previously, the Energy Independence and Security 
Act of 2007 also substantially increased the mandated renewable fuel 
requirements of the Renewable Fuels Standard Program.
---------------------------------------------------------------------------

B. Growth Energy Application and Review Process

    On March 6, 2009, Growth Energy and 54 ethanol manufacturers 
(hereafter ``Growth Energy'') submitted an application to the U.S. 
Environmental Protection Agency (EPA) for a waiver of the substantially 
similar prohibition. This application seeks a waiver for gasoline 
containing up to 15 vol% ethanol. On April 21, 2009, EPA published 
notice of the receipt of the application, and EPA requested public 
comment on all aspects of the waiver application for assisting the 
Administrator in determining whether the statutory basis for granting 
the waiver request for E15 has been met.\13\ EPA originally provided a 
30-day period for the public to respond. The deadline for public 
comment was May 21, 2009.
---------------------------------------------------------------------------

    \13\ See 74 FR 18228 (April 21, 2009).
---------------------------------------------------------------------------

    After multiple requests for additional time to comment, EPA agreed 
that additional time for comments was appropriate and that an extension 
of the comment period would aid in providing these stakeholders and 
others an adequate amount of time to respond to the complex legal and 
technical issues that result from possibly allowing E15 to be sold 
commercially. Accordingly, on May 20, 2009, EPA published a Federal 
Register notice extending the public comment period for the E15 waiver 
application until July 20, 2009.\14\ For EPA's response to more recent 
requests for an additional comment period, see section IX.
---------------------------------------------------------------------------

    \14\ See 74 FR 23704 (May 20, 2009).
---------------------------------------------------------------------------

    The Agency received approximately 78,000 comments on the waiver 
application. The overwhelming majority of these comments were brief 
comments from individuals indicating either general support for or 
opposition to the E15 waiver application. The Agency also received a 
large number of comments from a variety of organizations which 
substantively addressed the questions which EPA posed in the Federal 
Register notice announcing receipt of the application. These comments 
are summarized and addressed below.
    In addition to the information submitted by Growth Energy and 
commenters, the Department of Energy (DOE) has been performing, and 
continues to perform, testing on a variety of motor vehicles focused on 
the effect E15 might have on motor vehicles after long-term use of E15 
(``DOE Catalyst Study''). This testing is a significant source of 
information on the effects of E15 on the durability of motor vehicles' 
emissions control systems, a key technical issue to be addressed in 
EPA's waiver review. This kind of testing requires thousands of miles 
of mileage accumulation (or its equivalent using a test cell), and the 
collection of such data requires a significant amount of time to 
complete.
    Coordinating with EPA and stakeholders, DOE expedited the 
durability testing, first focusing on newer motor vehicles. Realizing 
that it would take a significant amount of time (months) to finish 
collecting and evaluating the durability data, EPA notified Growth 
Energy in a letter on November 30, 2009, that it was not issuing a 
decision on the waiver at that time but instead planned to issue a 
decision at a later date based on the need to assess the critical data 
being generated by the DOE catalyst durability test program.
    The DOE Catalyst Study is comprehensive. A total of 82 vehicles are 
expected to undergo full useful life testing. Motor vehicles are 
accumulating mileage under an accelerated protocol, which generally 
results in each motor vehicle being tested over 6-9 months. DOE has 
completed the first phase of this testing which focused on light-duty 
motor vehicles certified to Federal Tier 2 emissions standards. The 
analysis and evaluation of not only this durability data, but all of 
the data relevant to the Growth Energy application, as well as EPA's 
partial waiver decision, is discussed and explained below. DOE should 
complete testing on vehicles certified to National Low Emission Vehicle 
(NLEV) and Tier 1 Federal emission standards by the end of November.
    Various parties have also suggested allowances for the use of E12 
(gasoline-ethanol blended fuel that contains 12 vol% ethanol) for all 
gasoline-powered vehicles and engines. The issue of E12 is also 
discussed separately below in Section VIII.

C. Today's Notice of Proposed Rulemaking (NPRM) on Misfueling 
Mitigation Measures

    As noted above, today's partial waiver decision places several 
conditions on fuel and fuel additive manufacturers to mitigate the use 
of E15 in nonroad products, highway and off-highway motorcycles, heavy-
duty gasoline engines and vehicles, and motor vehicles older than 
MY2007.
    In a separate notice, we are today proposing regulatory provisions 
that parallel many of the conditions placed on the E15 partial waiver. 
Specifically, we are proposing a prohibition on the use of gasoline 
containing greater than

[[Page 68100]]

10 vol% ethanol in MY2000 and older non-flex fueled light-duty motor 
vehicles, heavy-duty gasoline engines and vehicles, highway and off-
highway motorcycles, and all nonroad products, based on findings under 
both sections 211(c)(1)(A) and (B) of the CAA. The prohibition is 
necessary based on the potential for increased emissions resulting from 
the use of E15. In order to facilitate the entry of E15 into commerce 
for use in MY2007 and newer motor vehicles, while protecting vehicles 
and engines not approved for use of E15, this rulemaking proposes fuel 
pump labeling provisions to mitigate the misfueling of motor vehicles 
and other engines, vehicles and equipment prohibited from using a motor 
vehicle gasoline containing ethanol in levels higher than E10. We are 
also proposing additional requirements for fuels that contain greater 
than 10 vol% ethanol and no more than 15 vol% ethanol, including the 
proper documentation of ethanol content on product transfer documents 
and requirements for a national survey to ensure the proper placement 
of E15 labels and the proper placement of gasoline-ethanol blends in 
the appropriate gasoline storage tanks; these provisions should help 
support the effectiveness of a labeling program.

III. Method of Review

    Under section 211(f)(4) of the Act, 24 applications for waivers of 
the section 211(f)(1) prohibitions have been received over the past 30 
years. Of these, 23 applications have sought a waiver for additives for 
unleaded gasoline. One application sought a waiver of the section 
211(f)(1)(B) prohibitions for an additive to diesel fuel. Of these 24 
applications, 11 applications were granted (some with conditions 
attached), 10 were denied, and three were withdrawn by the applicant 
prior to the Agency's decision.\15\
---------------------------------------------------------------------------

    \15\ ``Waiver Requests under Section 211(f) of the Clean Air Act 
(Revised August 22, 1995),'' found at http://www.epa.gov/otaq/regs/fuels/additive/waiver.pdf.
---------------------------------------------------------------------------

    Section 211(f)(4) clearly places upon the waiver applicant the 
burden of establishing that its fuel or fuel additive will not cause or 
contribute to the failure of vehicles or engines to meet their assigned 
emission standards over their useful lives. Absent a sufficient 
showing, the Administrator cannot make the required determination and 
cannot grant the waiver. If interpreted literally, however, this burden 
of proof would be virtually impossible for an applicant to meet as it 
requires the proof of a negative proposition: That no vehicle or engine 
will fail to meet emission standards to which it has been certified. 
Such a literal interpretation could be construed as requiring the 
testing of every vehicle or engine that will use the waived fuel. 
Recognizing that Congress contemplated a workable waiver provision, EPA 
has previously indicated that reliable statistical sampling and fleet 
testing protocols could safely be used to demonstrate that a fuel or 
fuel additive under consideration would not cause or contribute to 
motor vehicles in the applicable national fleet failing to meet their 
applicable emissions standards.\16\
---------------------------------------------------------------------------

    \16\ See 43 FR 41425 (September 18, 1978).
---------------------------------------------------------------------------

    While this demonstration typically takes the form of reliable 
statistical sampling and fleet testing protocols, an applicant may also 
make a demonstration based upon a reasonable theory regarding emissions 
effects and support these judgments with confirmatory testing as an 
alternative to providing the amount of data necessary to conduct robust 
statistical analyses.\17\ If a reasonable theory exists, based on good 
engineering judgment, which predicts the emission effects of a fuel or 
fuel additive, an applicant may only need to conduct a sufficient 
amount of testing to demonstrate the validity of such a theory. This 
theory and confirmatory testing then form the basis from which the 
Administrator may exercise his or her judgment on whether the fuel or 
fuel additive will cause or contribute to a failure of the vehicles and 
engines to achieve compliance with their emission standards.\18\ Thus, 
the burden of proof calls for sufficient data to conduct statistical 
analyses or to confirm a reasonable theory based on sound engineering 
judgment.
---------------------------------------------------------------------------

    \17\ See 44 FR 12244 (February 23, 1979).
    \18\ See Waiver Decision on Application of E.I. DuPont de 
Nemours and Company (DuPont), 46 FR 6124 (February 28, 1983).
---------------------------------------------------------------------------

    In determining whether a waiver applicant has established that the 
proposed fuel or fuel additive will not cause or contribute to vehicles 
and engines failing to meet their emission standards, EPA reviews all 
of the material in the public docket. At a minimum, the docket includes 
data submitted with the application and the public comments and data 
received during the public review and comment period on the 
application. EPA may also examine applicable data from any other 
sources which may shed light on the relevant analyses; such other data 
is also placed in the docket. EPA then considers and analyzes all of 
the data to ascertain the emission effects of the fuel or fuel additive 
on the applicable engines and vehicles.
    In conducting a waiver application review, EPA's emissions impact 
analysis concentrates on the following four major areas: \19\ (1) 
Exhaust emissions, both immediate and long-term (durability); (2) 
evaporative emissions, both immediate and long-term; (3) materials 
compatibility; and (4) driveability and operability. EPA evaluates the 
emissions impacts in these four categories individually and 
collectively and makes its final determination based on whether the new 
fuel or fuel additive will cause or contribute to the failure of 
vehicles and engines to meet their emissions standards. Each category 
is further discussed below.
---------------------------------------------------------------------------

    \19\ See 44 FR 12244 (February 23, 1979).
---------------------------------------------------------------------------

    Exhaust and evaporative emission data are analyzed according to the 
effects that a fuel or fuel additive is predicted to have on emissions 
over time. If the fuel is predicted to have only an immediate effect on 
emissions (i.e., the emission effects of the fuel or fuel additive are 
immediate and remain constant throughout the life of the vehicle or 
engine when operating on the waiver fuel), then ``back-to-back'' 
emissions testing will suffice. However, if the fuel or fuel additive 
affects the operation of the engine or related emission control 
hardware in a physical manner (e.g., operating temperatures, component 
interaction, chemical changes, increased permeation, and materials 
degradation) that might lead to emissions deterioration over time, test 
data is needed to demonstrate that the long-term durability of the 
emissions control system is not compromised by the fuel or fuel 
additive such that it would cause or contribute to the engines or 
vehicles failing to meet their emissions standards.
    Materials compatibility issues can lead to substantial exhaust and 
evaporative emissions increases. In most cases, materials 
incompatibility issues show up in emissions testing; however, there may 
be impacts that do not show up due to the way the testing is performed 
or because the tests simply do not capture the effect, especially if 
materials compatibility effects are determined to result with use of 
the new fuel or fuel additive over time. EPA has required applicants to 
demonstrate that new fuel or fuel additives will not have materials 
compatibility issues.\20\
---------------------------------------------------------------------------

    \20\ See 44 FR 1447 (January 5, 1979).
---------------------------------------------------------------------------

    A change in the driveability of a motor vehicle that results in 
significant deviation from normal operation (i.e., stalling, 
hesitation, etc.) could result in increased emissions. These increases

[[Page 68101]]

may not be demonstrated in the emission certification test cycles but 
instead are present during in-use operation. In addition to consumer 
dissatisfaction, a motor vehicle stall and subsequent restart can 
result in a significant emissions increase because hydrocarbon (HC) and 
CO emission rates are typically highest during cold starts. Further, 
concerns exist if the consumer or operator tampers with the motor 
vehicle in an attempt to correct the driveability issue since consumers 
may attempt to modify a motor vehicle from its original certified 
configuration.

IV. Waiver Submissions and Analysis of Light-Duty Motor Vehicle Issues

    This section discusses Growth Energy's waiver submission, comments 
received on it, and EPA's waiver decision and analysis for light-duty 
motor vehicles. The discussion groups vehicles according to our 
decision: MY2007 and newer light-duty motor vehicles for which we are 
approving the waiver, MY2001-2006 for which we are deferring a 
decision, and MY2000 and older motor vehicles for which we are denying 
the waiver.
    As described in Section III, Method of Review, above, the Agency 
evaluated Growth Energy's waiver request and made its decision based on 
four factors: (1) Exhaust emissions impact--both immediate and long-
term (known as durability); (2) immediate exhaust emissions impact; (2) 
evaporative system impacts--both immediate and long-term; (3) the 
impact of materials compatibility on emissions; and, (4) the impact of 
drivability and operability on emissions.

A. MY2007 and Newer Light-Duty Motor Vehicles

    While this section discusses the rationale of our decision for 
MY2007 and newer light-duty motor vehicles, it references information 
related to other model years as Growth Energy's submission was not 
model year specific and neither were the comments. In addition, we 
believe it was important to discuss MY2007 and newer motor vehicles in 
the context of how they are different from earlier model year light-
duty motor vehicles.
1. Exhaust Emissions--Long-Term Durability
a. Growth Energy's Submission
    For long-term durability testing (``durability testing''), Growth 
Energy suggests that durability testing is not required for E15 for two 
reasons. First, in its waiver application and public comments, Growth 
Energy argued that emissions testing to determine the impact of long-
term use of E15 on the emissions control system is not required for E15 
because EPA has waived durability testing for oxygenates in the past. 
Growth Energy contends that EPA has determined that oxygenates such as 
ethanol do not require durability testing because the Agency is 
``unaware of any long-term deteriorative effects on exhaust emissions 
associated with oxygenates'' \21\ and that ``the vast majority of data 
indicate that the effect of oxygenates on exhaust emissions over time 
has not been a significant issue.'' \22\ Growth Energy argued further 
that it would be ``arbitrary and capricious'' for the Agency to require 
durability testing for E15 considering EPA's long-standing position 
that oxygenates like ethanol will not have long-term exhaust emissions 
effects.
---------------------------------------------------------------------------

    \21\ See 53 FR 33846 (September 1, 1988).
    \22\ See 44 FR 10530 (February 21, 1979).
---------------------------------------------------------------------------

    Growth Energy's second argument is that EPA may accept reasonable 
theoretical judgments regarding the emission effects of a fuel as an 
alternative to direct testing of motor vehicles, and that in this case, 
fuel volatility specification, limited durability emissions testing, 
and data regarding materials compatibility and driveability could be 
used to establish and confirm such a theory. Growth Energy suggests 
that the collection of studies supplied in the application, coupled 
with 30 years of experience using E10, provides a rational basis to 
develop a theory that E15 will not cause or contribute to emissions 
failures in motor vehicles. Growth Energy feels that the studies 
supplied in the application supply enough data to confirm their theory 
and this alleviates the need for long-term emissions testing.
    In particular, Growth Energy suggests that since a study conducted 
by the Rochester Institute of Technology (RIT) \23\ examined the 
effects of E20 (gasoline-ethanol blend containing 20 vol% ethanol) on 
10 vehicles over significant mileage accumulation (75,000 miles 
combined), and found no issues when comparing E20 emissions performance 
with E0 (gasoline containing no ethanol) emissions performance, that 
``E20 will not have a significant deteriorative effect on applicable 
vehicle parts.'' \24\ Growth Energy believes that this is enough 
information to satisfy long-term exhaust emissions testing 
requirements. In its comments, Growth Energy supplied an updated 
summary of the RIT Study which details RIT's expansion of the 
driveability program to 400 motor vehicles. Growth Energy argues that 
the updated summary of the RIT Study that they submitted in their 
comments has shown ``no significant issues'' with over 400 motor 
vehicles that have accumulated over 1.5 million total combined miles 
and found that ``emissions may be reduced through use of E-20.'' \25\ 
Growth Energy contends that this study confirms their theory that E15 
will not cause or contribute to motor vehicles failing their emissions 
standards over their full useful lives.
---------------------------------------------------------------------------

    \23\ The effect of E20 ethanol fuel on vehicle emissions, B 
Hilton and B Daddy, Center for Integrated Manufacturing Studies, 
Rochester Institute of Technology, June 26, 2009. See EPA-HQ-OAR-
2009-0211. (``The RIT Study'').
    \24\ ``Application For A Waiver Pursuant to Section 211(f)(4) of 
the Clean Air Act For E-15'' Submitted by Growth Energy on Behalf of 
52 United States Ethanol Manufacturers; EPA Docket EPA-HQ-
OAR-2009-0211-0002.6.
    \25\ ``Growth Energy's Comments on Notice of Clean Air Act 
Waiver Application To Increase the Allowable Ethanol Content of 
Gasoline to Fifteen Percent,'' EPA Docket EPA-HQ-OAR-2009-
0211-2721.1.
---------------------------------------------------------------------------

b. Public Comment Summary
    Several commenters responded that the RIT Study has limitations and 
does not alleviate concerns about the long-term emissions impacts of 
using E15 in motor vehicles. The Manufacturers of Emissions Controls 
Association (MECA) argues that emission control-related concerns 
regarding the use of E15 include the potential for accelerated thermal 
deactivation of three-way catalysts equipped on existing light-duty 
motor vehicles or nonroad engines, due to higher exhaust temperatures 
that have been observed on engines fueled with mid-level ethanol blends 
in comparison to E0 and E10. MECA argues further that the thermal 
durability of three-way catalyst formulations is a function of time, 
catalyst temperature, and gas composition; extended catalyst exposure 
to higher exhaust temperatures, especially in the presence of oxygen-
rich exhaust conditions that can be created through the use of E15, can 
accelerate catalyst thermal deactivation mechanisms (e.g., sintering of 
active precious metal sites, sintering of oxygen storage materials, and 
migration of active materials into inert support materials).\26\
---------------------------------------------------------------------------

    \26\ ``Statement of the Manufacturers of Emission Controls 
Association on the Waiver Request Received by the U.S. Environmental 
Protection Agency to Increase the Ethanol Content of Gasoline up to 
15%,'' EPA Docket EPA-HQ-OAR-2009-0211-2441.1.
---------------------------------------------------------------------------

    Many commenters point out that Growth Energy submitted and cited 
only a summary of the RIT Study. The summary, as these commenters note, 
omits key details necessary to evaluate the conclusions that Growth 
Energy draws from the RIT Study. For example,

[[Page 68102]]

commenters noted that the summary did not specify the make, model and 
year of the motor vehicles tested, making it impossible to determine 
the representativeness of RIT's motor vehicle test fleet. Additionally, 
they added that no actual data were included in the summary for 
commenters and the Agency to conduct independent analyses of RIT's test 
results. Furthermore, no detailed descriptions outlining the fuel 
properties of both test fuels (E0 and E20) were included in the 
summary. Even through Growth Energy provided an updated summary of the 
RIT Study in its comments, this updated summary still omitted important 
details necessary for commenters and the Agency to conduct an 
independent analysis.
    Auto manufacturers, refiners, and several others similarly noted 
that higher exhaust temperatures could cause increased deterioration of 
catalysts over time. These commenters assert that this deterioration 
may adversely affect a motor vehicle's ability to meet emissions 
standards, particularly after significant mileage accumulation.
    Commenters noted that a recently released Coordinating Research 
Council (CRC) Report E-87-1 (``the CRC Screening Study'' or ``E-87-1'') 
is the first phase of another test program developed to look at the 
effects of mid-level gasoline-ethanol blends on U.S. motor 
vehicles.\27\ The purpose of the study was to identify motor vehicles 
which used learned fuel trims to correct open-loop air-to-fuel (A/F) 
ratios since this may gauge the risk of the catalyst to thermal 
degradation.\28\ This study is the first phase of a two-phase study 
evaluating the effects of mid-level gasoline-ethanol blends on emission 
control systems. The test program identified and acquired a fleet of 25 
test motor vehicles with 12 of those motor vehicles manufactured after 
2000. The study collected vehicle speed, oxygen sensor A/F ratio, and 
catalyst temperature data on four fuels (E0, E10, E15, and E20). 
Results compared the three gasoline-ethanol blends with E0. The study 
concluded that a large number of vehicles (12 of the 25 tested) failed 
to apply long-term fuel trim to correct for increasing ethanol levels 
when operating in open-loop control.
---------------------------------------------------------------------------

    \27\ Mid-level Ethanol Blends Catalyst Durability Study 
Screening (CRC Report: E-87-1), June 2009 (``CRC Screening Study''), 
EPA Docket  EPA-HQ-OAR-2009-0211-13970. Available at: 
http://www.crcao.com/reports/recentstudies2009/E-87-1/E-87-1%20Final%20Report%2007_06_2009.pdf.
    \28\ See section IV.A.1.c. for a detailed discussion of these 
terms.
---------------------------------------------------------------------------

    Commenters also pointed out that the CRC Screening Study showed 
increased exhaust temperatures in motor vehicles that failed to apply 
long-term learned fuel trim when operating open loop at wide open 
throttle using E15 and E20. This constituted seven of the sixteen 
vehicles tested, and the average increase was 30 degrees Celsius in 
these motor vehicles.
    Several comments refer to a series of studies conducted by Orbital 
Engine Company for Environment Australia to evaluate impacts E20 would 
have if introduced in Australia (``the Orbital Study''). The Orbital 
Study evaluated emissions performance on total hydrocarbon, CO, NOx and 
aldehydes, materials compatibility issues, and driveability of E20 
compared to E0 with a test fleet of five paired late model Australian 
motor vehicles. The Orbital Study completed emissions testing over 
80,000 kilometers (about 50,000 miles). The study notes that there were 
substantial increases in regulated pollutants for motor vehicles that 
used E20 when compared with vehicles that used E0 after the 
accumulation of 80,000 kilometers. The study's authors further point 
out that one motor vehicle operating on E20 exceeded the Australian 
NOX emissions standard.\29\ The Orbital authors also 
examined catalyst efficiency changes as a possible cause of the changes 
in emissions as a result of aging the motor vehicles on E20. The 
Orbital authors conclude that the exhaust emissions increases occurred 
due to catalyst degradation which they attribute to the increase in 
exhaust temperature from E20 use during particular modes of operation. 
They continue by noting that the two motor vehicles that experienced 
dramatic emissions increases with E20 after aging were motor vehicle 
models that failed to adjust to the higher oxygen levels found in E20.
---------------------------------------------------------------------------

    \29\ After reviewing the emissions results presented in the 
Orbital Study, we believe that these motor vehicles' certified 
emissions standards are comparable to the Tier 1 (1994 to 1999) 
motor vehicle exhaust emissions standards in the United States.
---------------------------------------------------------------------------

    The Alliance of Automobile Manufacturers (``the Alliance'') reasons 
that the Orbital Study, the CRC Screening Study, and the DOE Pilot 
Study \30\ suggest that allowing the use of E15 in motor vehicles could 
cause a substantial number of motor vehicles to fail emissions 
standards because of increased catalyst deterioration over the motor 
vehicles' full useful life, especially in so-called ``legacy vehicles'' 
which constitute a bulk of the American motor vehicle fleet. The 
Alliance asserts that this uncertainty of the long-term effects of E15 
on catalysts durability would require motor vehicle testing over the 
full useful life to address these concerns. The Alliance for a Safe 
Alternative Fuels Environment (``AllSAFE'') concluded that legally 
``when the relevant effects can include accelerated catalyst 
deterioration, 'back to back' testing to determine so-called 
'immediate' emissions impacts is not sufficient.'' \31\
---------------------------------------------------------------------------

    \30\ In October 2008, DOE released a report titled Effects of 
Intermediate Ethanol Blends on Legacy Vehicles and Small Non-road 
Engines, Report 1. DOE later published an update to that report, 
which included all of the original study plus additional vehicles. 
For the purposes of this decision document, we refer to the updated 
study, Effects of Intermediate Ethanol Blends on Legacy Vehicles and 
Small Non-road Engines, Report 1--Updated, National Renewable Energy 
Laboratory, February 2009, as the ``DOE Pilot Study''. EPA Docket 
EPA-HQ-OAR-2005-0161-2880.
    \31\ ``Exhibit B, Supplemental Statutory Appendix To the 
Comments of the Alliance for a Safe Alternative Fuels Environment On 
the Request for Waiver of the Prohibition in Section 211(f)(1) of 
the Clean Air Act
    Noticed for Comment at 74 FR 18,228 (April 21, 2009)'', 
submitted by AllSAFE, EPA Docket EPA-HQ-OAR-2009-0211-
2559.2.
---------------------------------------------------------------------------

    Growth Energy submitted two responses to the Orbital Study. First, 
Growth Energy commented that the motor vehicles tested in the Orbital 
Study were designed for Australian emission standards and are not 
representative of motor vehicles found in the US. Second, since much of 
the research Orbital relied on was conducted in the 1980s and early 
1990s, Growth Energy points out that the ``U.S. fleet has been 
redesigned significantly since the mid-1980s to accommodate different 
fuel blends and meet the world's most stringent emission regulations.'' 
\32\
---------------------------------------------------------------------------

    \32\ ``ATTACHMENT A: Responses to Anecdotes and Unfounded Claims 
Regarding E-15,'' submitted by Growth Energy, EPA Docket 
EPA-HQ-OAR-2009-0211-2721.2.
---------------------------------------------------------------------------

    Specifically addressing the issue of higher catalyst temperatures, 
Growth Energy, ACE, and others responded in their respective comments 
that higher catalyst temperatures are not necessarily harmful to the 
catalysts.\33\ They point out that the catalyst temperature increases 
in the DOE Pilot Study were relatively small and well within normal 
operating temperatures. These commenters also note that the 
temperatures only occurred in certain motor vehicles and only when 
those motor vehicles were operated in the rarely used wide open 
throttle mode. Growth Energy points out that for the seven motor 
vehicles that adjusted for

[[Page 68103]]

the extra oxygen from the increased ethanol blends, catalyst 
temperatures were cooler on average.
---------------------------------------------------------------------------

    \33\ In fact, ACE argues that these increased catalyst 
temperatures may be responsible for the average decreases in 
NOX emissions found in the DOE Study and RIT Study. See 
ACE's Comment, 8.
---------------------------------------------------------------------------

c. EPA Response Regarding the Need for Long-Term Exhaust Emissions 
(Durability) Testing
i. General Long-Term Exhaust Emissions (Durability) Concerns
    Ethanol impacts motor vehicles in two primary ways. First, as 
discussed below, ethanol enleans the A/F ratio (increases the 
proportion of oxygen relative to hydrocarbons) which can lead to 
increased exhaust gas temperatures and potentially increase incremental 
deterioration of emission control hardware and performance over time, 
possibly causing catalyst failure. Second, ethanol can cause materials 
compatibility issues, which may lead to other component failures (this 
will be discussed further in sections IV.A.3 and IV.A.4 below). 
Ultimately, either of these impacts may lead to emission increases.
    Due to the increased oxygen content of E15 relative to E10, motor 
vehicles operated on E15 will likely run even leaner than those 
operated on E10 depending on the vehicle technology and operating 
conditions. It is also relevant to note that all motor vehicles are 
emissions and durability tested for exhaust emissions certification 
purposes using an E0 fuel; therefore, this effect of changing from E10 
to E15 will not be present during certification and compliance testing. 
Enleaned combustion leads to an increase in the temperature of the 
exhaust gases. This increase in exhaust gas temperatures has the 
potential to raise the temperatures of various exhaust system 
components (e.g., exhaust valves, exhaust manifolds, catalysts, and 
oxygen sensors) beyond their design limits. However, based on past 
experience, the most sensitive component is likely the catalyst, 
particularly in older motor vehicles with early catalyst technology. 
Catalyst durability is highly dependent on temperature, time, and feed 
gas composition. Catalyst temperatures must be controlled and catalyst 
deterioration minimized during all motor vehicle operation modes for 
the catalyst to maintain high conversion efficiency over the motor 
vehicle's full useful life (FUL). This is particularly important during 
high-load operation of a motor vehicle where the highest exhaust gas 
temperatures are typically encountered and the risk for catalyst 
deterioration is the greatest. Catalysts that exceed temperature 
thresholds will deteriorate at rates higher than expected, compromising 
the motor vehicles' ability to meet the required emission standards 
over their FUL. Extended catalyst exposure to higher exhaust 
temperatures can accelerate catalyst thermal deactivation mechanisms 
(e.g., sintering of active precious metal sites, sintering of oxygen 
storage materials, and migration of active materials into inert support 
materials). While this damage can occur at a highly accelerated rate 
with a sudden change in temperature (e.g., with a misfire allowing raw 
fuel to reach the catalyst), it is more likely to occur over time from 
elevated exhaust temperatures as may be experienced with frequent or 
even occasional exposure to E15. This deterioration may adversely 
affect a motor vehicle's ability to meet emissions standards, 
particularly after significant mileage accumulation.
    Some motor vehicles may be designed in ways that manage catalyst 
temperatures by compensating for the oxygen in the fuel under all 
operating conditions, including high loads. This is achieved by using a 
closed-loop fuel system that measures the A/F ratio and makes the 
appropriate corrections to maintain the A/F ratio in the very tight 
band of operation around stoichiometry necessary for optimum catalyst 
performance and reductions in HC, CO, and NOX emissions. The 
corrections can be applied to other areas of operation to achieve the 
desired A/F ratio. The part of the closed-loop fuel system that is 
responsible for the correction to the A/F ratio is referred to as 
``fuel trim.'' The fuel trim adds or removes fuel to the engine in 
order to maintain the required A/F ratio. If the measured A/F ratio has 
insufficient oxygen or is ``rich,'' compared to what the engine needs, 
the fuel trim will instruct the fuel injectors to inject less fuel, 
making the A/F ratio ``leaner.'' The opposite is true if the measured 
A/F ratio has too much oxygen and needs to inject more fuel for a 
``richer'' A/F ratio. The fuel trim is generally comprised of two major 
parts, short-term fuel trim and long-term or learned or adaptive fuel 
trim. Learned or adaptive fuel trim can also be applied to open-loop 
operation such as high-load or wide-open throttle to alleviate the 
catalyst temperature increases caused by operating on E15. However this 
practice has not been consistently employed by all manufacturers.
ii. Response to Growth Energy's First Argument
    In its first argument Growth Energy asserted that long-term exhaust 
emissions testing (``durability testing'') is not required for E15 
because EPA has waived durability testing for oxygenates in previous 
waiver decisions. The Agency believes that Growth Energy's waiver 
request application is different in substantial ways from previous 
oxygenate waiver applications that EPA has reviewed. Previous oxygenate 
waivers have, at most, resulted in increased fuel oxygen levels of up 
to around 2.7% by weight oxygen. E15, for the first time, would add 
significantly more oxygen to the fuel, up to around 5.5% by weight 
oxygen depending on the density of the gasoline to which ethanol is 
added. This increase in oxygen content is double the current oxygen 
content limit that EPA interprets to be substantially similar to motor 
vehicle gasoline used in the certification of motor vehicles.\34\ 
Additionally, with the exception of the original E10 waiver, which was 
not granted through an EPA decision but through the operation of 
law,\35\ and the Tertiary-butyl Alcohol waiver, which leads to oxygen 
content of about 1.6 percent, EPA has placed a condition on all other 
gasoline-alcohol waivers requiring a corrosion inhibitor to deal with 
the aggressive nature of these fuels.
---------------------------------------------------------------------------

    \34\ See 73 FR 22277 (April 25, 2008).
    \35\ See 44 FR 20777 (April 6, 1979).
---------------------------------------------------------------------------

    In addition to this very large increase in oxygen content compared 
to the waivers granted by EPA over 20 years ago, the emissions 
standards that motor vehicles must achieve have become much more 
stringent over time. As a result, emissions control systems have also 
changed significantly over time. The emissions controls systems of 
vehicles over the last 20 years have progressively become more 
dependent on the ability to control the deterioration of the emissions 
control system, especially the catalyst, to achieve compliance with the 
emissions standards over the full useful life of the motor vehicle. Of 
particular importance is the ability of emissions control systems over 
time to limit or control long-term deterioration by accounting for the 
oxygen level of the fuel. The oxygen content levels at issue in this 
waiver application raise serious concerns about long-term durability. 
This concern is supported by information in several studies.
    For both of these reasons, EPA rejects Growth Energy's claim that 
long-term exhaust emissions (durability) testing is not required for 
the E15 waiver request and that it would be arbitrary or capricious for 
EPA to require durability testing for this waiver.

[[Page 68104]]

iii. Response to Growth Energy's Second Argument
    Growth Energy in its second argument concluded that E15 does not 
require long-term exhaust emissions (durability) test data, because, as 
they state, EPA may accept reasonable theoretical judgments as to the 
emission effects of a fuel as an alternative to the direct testing of 
motor vehicles. However, Growth Energy has not presented a reasonable 
and valid engineering theory to demonstrate that E15 will not 
detrimentally impact the durability of emissions control systems such 
that engines and vehicles can still meet their emissions standards 
while using E15. They point to fuel volatility specification, limited 
durability emissions testing, data regarding materials compatibility 
and driveability, as well as the collection of studies supplied in the 
application, coupled with 30 years of experience with using E10, as 
providing a rational basis for a theory that E15 would not cause long-
term deterioration of the emissions control systems of motor vehicles. 
However, this is not an engineering theory or an engineering analysis. 
Growth Energy has not analyzed the design of emissions control systems 
and their changes over time, as emissions standards have increasingly 
become more stringent. Nor has Growth Energy explained from an 
engineering perspective why in theory the oxygen levels found in E15 
should not lead to durability problems for the emissions control system 
when used over time. Instead, Growth Energy points to the same 
information as both the source of its theory as well as the data used 
to confirm its theory. This highlights the circular nature of Growth 
Energy's argument, as well as the absence of an engineering analysis 
that identifies and explains any theory Growth Energy relies upon.
    Absent such a theory, one would perform the durability testing and 
draw conclusions from such testing about the impact of E15 on long-term 
durability. In essence, Growth Energy is suggesting that the data and 
testing it presents provides such an evidentiary basis and is as 
credible as data gathered from actual long-term durability testing for 
drawing such conclusions. Instead of presenting a reasoned engineering 
theory and data to confirm it, they are presenting what amounts to an 
alternative evidentiary basis to long-term durability testing. However, 
the information that Growth Energy relies on is not adequate to provide 
such a basis.
    For example, the RIT Study that Growth Energy cites does not 
support the conclusions that Growth Energy draws from this test 
program. Specifically, Growth Energy argues that because the RIT Study 
had run 10 motor vehicles over 75,000 miles without any serious issues, 
a reasonable theory concerning E15's effects on long-term durability 
may be inferred. However, 10 motor vehicles run over 75,000 miles on 
E20 is only an average of 7,500 miles per motor vehicle. This is 
substantially lower than the 100,000/120,000 full useful life of the 
motor vehicles in the test program. Similarly, Growth Energy argues 
that the expanded RIT Study ran 400 motor vehicles over 1.5 million 
combined miles without significant issues. However, 400 motor vehicles 
run over 1.5 million miles is an average of 3,750 miles per motor 
vehicle. Additionally, Growth Energy suggests that RIT found decreases 
in the emissions of regulated pollutants in RIT's 400-vehicle 
driveability study, but no actual emissions testing on those motor 
vehicles was performed. In the updated RIT summary that Growth Energy 
submitted during the comment period, RIT had not conducted any 
additional motor vehicle emissions testing since the earlier summary.
    Although the initial emissions testing conducted in 2008 may 
suggest decreases in regulated pollutants, it does not address concerns 
that increased ethanol levels in gasoline may lead to increased exhaust 
temperatures, increased catalyst deterioration, and increased emissions 
over time. Since the RIT study only performed emissions testing on 10 
of the vehicles (4 of which were Ford F250 trucks), and the mileage 
accumulated on E20 for each vehicle was far less than the 120,000 mile 
FUL, it is not possible to draw adequate conclusions concerning long-
term emissions from the RIT Study even after the completion of the test 
program.
    The Agency finds that none of the other studies or information 
cited by Growth Energy specifically addresses the concern with the 
effect of increased exhaust temperatures due to increased ethanol 
levels and how that will impact the motor vehicles' ability to meet 
their emissions standards over their useful life. The studies and 
material may provide information relative to other aspects of ethanol 
impacts but fall short of providing any substantive information on the 
long-term effects of midlevel gasoline-ethanol blends on emissions 
control systems. Nor do any of the studies that Growth Energy cites 
provide sufficient information to lead the Agency to believe that there 
will not be long-term durability concerns. Growth Energy did not 
provide any data or analysis of warranty or repair information from in-
use experience with E10 vs. E0 with which to assess what the impact has 
been over the last 30 years from the use of E10 in the in-use fleet, 
nor any information showing how the results of such an analysis would 
change with the use of E15. Therefore, we do not agree with Growth 
Energy that durability testing is not required.
    The Agency concludes that the studies and other information cited 
in Growth Energy's waiver request application, and its public comments, 
do not demonstrate that E15 is not likely to have adverse impacts on 
the long-term exhaust emissions (durability) of the emissions control 
system over the full useful life of motor vehicles. The DOE Pilot 
Study, the CRC Screening Study, the Orbital Study, comments from the 
automobile manufacturers, and our engineering judgment, as discussed 
below, all indicate that legitimate concerns exist that E15 could 
accelerate the deterioration of the catalysts in a sizeable portion of 
the national fleet, leading to increased emissions.
    Therefore, EPA finds that the limited durability testing and other 
information relied upon by Growth Energy is not adequate by itself to 
determine the long-term durability impact of E15 on exhaust emissions 
control systems.
d. Durability Studies and EPA Analysis
    A number of regulatory actions have taken place since 2000 which 
have placed an emphasis on real-world testing of motor vehicles, which 
in turn has led to changes in emission control systems. First, the 
Compliance Assurance Program, more commonly known as CAP2000, took 
effect with MY2001 motor vehicles and was designed to place more 
emphasis on the ``in-use'' performance (or the performance of motor 
vehicles once they are in customer service) of motor vehicle emission 
controls with motor vehicles operating nationwide on the different 
available fuels. The In-Use Verification Program (IUVP) introduced 
under CAP2000 requires manufacturers to perform exhaust and evaporative 
emissions tests on customer motor vehicles at low and high mileage 
intervals. This emphasis on real-world motor vehicle testing provided 
manufacturers with increased incentive to consider the impacts of 
different marketplace fuels, including E10, when developing and testing 
their emissions control systems.
    Second, by MY2004, Supplemental Federal Test Procedure (SFTP) 
emissions standards were fully phased in. SFTP emissions standards 
expanded

[[Page 68105]]

vehicle emission testing to better represent actual consumer driving 
habits and conditions by including the US06 test (a high speed and high 
acceleration cycle), the SCO3 test (an air conditioning test cycle run 
in an environmental test chamber at 95 [deg]F), and a 20 [deg]F cold 
test run on the Federal Test Procedure (FTP) cycle. In response to 
these requirements manufacturers developed more robust emissions 
control systems (such as systems using wide range oxygen sensors) 
capable of withstanding the higher temperatures experienced during 
these more severe cycles without simply relying on enriching of the A/F 
ratio, causing emissions to rise.
    Third, beginning with MY2004, the Agency implemented its current 
and most stringent emission standards--the Tier 2 standards, with full 
implementation for light-duty motor vehicles and trucks and medium duty 
passenger motor vehicles completed by MY2007. Importantly, in order to 
comply with Tier 2 full useful life requirements, additional changes 
were required to ensure the durability of the exhaust and evaporative 
emission control systems over ``real world'' conditions.
    As a result of all of these standards, Tier 2 motor vehicles (i.e. 
motor vehicles subject to the Tier 2 standards) are more 
technologically advanced and robust than cars built years ago. These 
motor vehicles have improved hardware as well as more sophisticated 
emissions control systems and strategies to help maintain catalyst 
effectiveness throughout the extended motor vehicle operating range 
over which emissions performance must be maintained. Motor vehicles now 
have the ability to precisely adjust for changes in the A/F ratio of 
the engine and ultimately maintain peak catalyst efficiency under 
almost any condition, such as exposure to oxygenated fuels like those 
containing ethanol. Auto manufacturers now warrant their new motor 
vehicles to operate on gasoline-ethanol blends up to E10.
    While the Tier 2 regulations allowed new motor vehicles to phase-in 
to the Tier 2 standards from MY2004-2009, actual manufacturer 
certification data indicates that gasoline-fueled motor vehicles 
reached full phase-in with MY2007. MY2004-2006 motor vehicles include a 
mix of Tier 2 and ``interim non-Tier 2'' motor vehicles. Only some 
flexible-fueled vehicles (FFVs) and diesel motor vehicles remained as 
interim non-Tier 2 motor vehicles in MY2008 and 2009.
    To comply with the stringent Tier 2 standards, manufacturers must 
minimize deterioration of the emissions control system over a motor 
vehicle's FUL of 120,000 miles (40 CFR 86.1811-04). In particular, 
catalyst deterioration must be minimized and catalyst temperatures 
controlled during all motor vehicle operation modes for the catalyst to 
work properly (i.e., for it to maintain the necessary high efficiency 
demanded by the Tier 2 standards). To do so, some manufacturers 
incorporated learned or adaptive fuel trim into their motor vehicle 
designs to help control the A/F ratio and alleviate catalyst 
temperature increases even under open-loop conditions. Others, through 
careful hardware selection and certain calibration approaches, designed 
their motor vehicles with higher thermal margins to accommodate the 
effects of enleanment with gasoline-ethanol blends. Regardless of their 
approach, all manufacturers have warranted their Tier 2 vehicles for 
operation on E10, and we believe, based on available data, that they 
are capable of operating on gasoline-ethanol blends up to E15 as well.
    The test data that has been collected supports our engineering 
assessment. Several test programs were conducted by CRC, the National 
Renewable Energy Laboratory (NREL), Oak Ridge National Laboratory and 
DOE to study the effects of E15 on Tier 2 vehicles, with the key study 
being the recently completed DOE Catalyst Study, discussed in more 
detail below. The CRC Screening Study and the DOE Pilot Study measured 
exhaust and catalyst temperature and/or evaluated the ability of motor 
vehicles to apply learned fuel trim to adjust for the enleanment due to 
ethanol during open-loop operation. As discussed above, leaner, hotter 
exhaust subjects the catalyst to greater risk of high temperatures and 
long-term catalyst deterioration and damage, and applying the learned 
fuel trim to open-loop operation is one of several methods 
manufacturers use to protect against this. Since roughly half of the 
motor vehicles tested in these test programs, including roughly half of 
the Tier 2 motor vehicles, did not apply learned fuel trim, and those 
motor vehicles that did not apply learned fuel trim experienced higher 
catalyst and exhaust temperatures with E15, these screening studies 
highlighted the potential for concern. However, the lack of 
compensating for ethanol content while in open-loop operation indicates 
only the potential for temperature problems to occur, and elevated 
temperatures only indicate the potential for catalyst deterioration; 
motor vehicles that do not apply learned fuel trim may still have 
sufficient thermal margins.
    To evaluate the actual impacts of E15 on Tier 2 motor vehicles, DOE 
performed a catalyst durability test program,\36\ the DOE Catalyst 
Study, throughout 2009 and 2010 on 19 Tier 2 motor vehicle models from 
high sales volume models of the various light-duty motor vehicle 
manufacturers. The specific purpose of the program was to evaluate the 
long term effects of E0, E10, E15, and E20 on catalyst system 
durability. The program also provided other limited but valuable 
information relevant to today's partial waiver decision, such as 
materials compatibility, evaporative control system integrity, 
diagnostic system sensitivity and general driveability. Without the 
results from this test program, EPA would not have had the information 
necessary to properly assess the long-term exhaust emission 
(durability) performance of E15. Program results indicate that the 
changes manufacturers made (calibration, hardware, etc.) to their motor 
vehicles to comply with the Tier 2 standards have in fact resulted in 
the capability of the motor vehicle catalysts to withstand the 
additional enleanment caused by E15, regardless of whether or not the 
motor vehicles utilized learned fuel trim while in open-loop operation. 
The test program results show that a representative cross section of 
the Tier 2 fleet maintained their exhaust emission performance on E15 
over the full useful life of the motor vehicles. The discussion which 
follows contains a description of the DOE Catalyst Study and presents 
and analyzes its results.
---------------------------------------------------------------------------

    \36\ Catalyst Durability Study, Department of Energy Tier 2 
vehicle testing completed September 2010. Final report due early 
2011.
---------------------------------------------------------------------------

i. DOE Catalyst Study Overview
    The Intermediate Ethanol Blends Emissions Controls Durability Test 
Program (``DOE Catalyst Study'') was established in 2008, following 
enactment of the Energy Independence and Security Act of 2007, to 
investigate the potential impacts of gasoline-ethanol blend levels 
above 10% on the durability of vehicle emissions control systems. The 
program was subcontracted to Southwest Research Institute (SwRI), 
Transportation Research Center (TRC) and Environmental Testing 
Corporation (ETC).
ii. Vehicle Selection and Matching
    Several relevant criteria were used to determine the motor vehicle 
models selected:

[[Page 68106]]

     Tier-2 compliant.
     Manufacturer and sales/registration volumes.
     Whether a motor vehicle did or did not apply learned fuel 
trim (LFT or non-LFT, respectively) at wide-open throttle (WOT).
    Other studies also impacted selection: EPA's EPAct motor vehicle 
study at Southwest Research Institute (SwRI) which was expanded into 
the CRC's E-89 study,\37\ CRC's E-87-1 study (CRC Screening Study), and 
the DOE Pilot Study. Based on the motor vehicle models EPA used to 
represent the Tier 2 fleet in the CRC E-89 study, DOE consulted with 
CRC and then instructed the national laboratories to utilize the same 
set of motor vehicle models for the long-term durability studies, with 
one exception (at the request of CRC, they switched out a Toyota Sienna 
for a Nissan Quest).
---------------------------------------------------------------------------

    \37\ E-89, Energy Policy Act (EPAct) Light-duty Vehicle Fuel 
Effects. (EPA and the National Renewable Energy Laboratory (NREL) 
are sponsoring extensive testing of ethanol fuel effects in 
connection with project E-89.)
---------------------------------------------------------------------------

    All the motor vehicles within a model set (one motor vehicle for 
each fuel tested within a model) were matched to prevent confounding of 
the data by undesirable motor vehicle attribute changes. The engine 
family, engine displacement, evaporative emissions control family, 
model year, powertrain control unit calibration, axle ratios, wheel 
size, and tire size were constrained to be identical within a motor 
vehicle set. Physical inspections of the motor vehicles to eliminate 
obvious problematic motor vehicles (such as those with gross fluid 
leaks, obvious and excessive body damage, etc.) were also a part of the 
selection. Pre-owned motor vehicles' initial odometer readings were to 
be within 10,000 miles amongst a motor vehicle set.
[GRAPHIC] [TIFF OMITTED] TN04NO10.000

iii. Fuels and Blending
    Emissions and related tests were conducted using an emissions 
certification gasoline and splash blending batches of E10, E15, and E20 
on site. The gasoline-ethanol blends were blended from emissions 
certification gasoline and denatured fuel-grade ethanol. These 
emissions test fuels were termed E0 (for ethanol-free emissions fuel), 
E10 (for 10% ethanol emissions fuel), E15 (for 15% ethanol emissions 
fuel) and E20 (for 20% ethanol emissions fuel).
    Aging fuels were produced by splash blending fuel-grade ethanol 
with non-ethanol containing gasoline obtained commercially by the 
subcontractors in their local area, rather than emissions certification 
gasoline. The aging fuels were designated RE0, RE10, RE15, and RE20 
with ``R'' conveying blending from retail gasoline.
iv. Emissions Test Protocol
    Motor vehicles were subjected to emissions (FTP) and related tests 
at the following points during the test program: (1) At the beginning 
of mileage accumulation; (2) at least one mid-mileage point; and (3) at 
the end of mileage accumulation. DOE consulted with CRC on recommended 
testing procedures. At SwRI and TRC, the acceptance tests also included 
WOT tests to aid in classifying the vehicles as either LFT or non-LFT 
motor vehicles. At each emissions test interval, duplicate FTP tests 
were conducted on each motor vehicle using both the gasoline-ethanol 
blend assigned to the motor vehicle as well as E0. (i.e. the ``E15'' 
motor vehicle received duplicate FTPs on both E15 and E0.) The motor 
vehicles also underwent compression and leak-down checks at each 
emissions interval. Tier 2 compliant motor vehicles were driven up to 
their full-useful life (120,000 miles). The initial mileages of the 
Tier 2 motor vehicles ranged from near zero to approximately 50,000 
miles. These vehicles were driven approximately 70,000-120,000 miles 
during the program.
    New motor vehicles were first aged to 4,000 miles to stabilize the 
engine and emissions control systems, followed by the initial emissions 
test. The motor vehicles then accumulated mileage until the first mid-
aging emissions tests at

[[Page 68107]]

60,000 miles. This cycle was then repeated to 90,000 miles for the 
motor vehicles under test at ETC. At TRC and SwRI, the 90,000 mile 
emissions tests were not conducted. All vehicles ended aging at 120,000 
miles. Pre-owned motor vehicle sets with less than 70,000 miles at the 
start were mid-aging tested at 95,000 miles with end-of-aging tests at 
120,000 miles.
v. Mileage Accumulation
    The standard road cycle (SRC) was used for all aging. The SRC is 
the official EPA driving cycle used for aging in the whole motor 
vehicle exhaust durability procedure. This is a recommended EPA 
procedure that the manufacturers regularly use for verifying full 
useful life emissions capability. It has an average speed of 46.3 mph 
and a maximum of 75 mph. The Nissan Quest aging was changed part way 
through aging to a series of steady speed laps on the test track at TRC 
at DOE's direction to accelerate completion of this motor vehicle set.
    ETC and SwRI used mileage accumulation dynamometers (MADs) for 
aging. Motor vehicles at TRC were aged on a closed test track. Drivers 
followed the SRC as they drove the motor vehicles around the track. To 
complete the test program required motor vehicles to undergo anywhere 
from six to nine months of mileage accumulation and emission testing.
vi. Powertrain Component Inspection
    At the end of motor vehicle mileage accumulations and emissions 
testing at SwRI, six pairs of engines were disassembled and analyzed 
for signs of wear and materials compatibility problems of concern with 
gasoline-ethanol blends that might indicate durability concerns with 
E15 that did not show up in the accelerated aging testing 
performed.\38\ The eight different types of evaluations performed 
included:
---------------------------------------------------------------------------

    \38\ Southwest Research Institute (SwRI) Project 08-58845 Status 
Report, ``Powertrain Component Inspection from Mid-Level Blends 
Vehicle Aging Study,'' September 6, 2010. EPA Docket EPA-
HQ-OAR-2009-0211-14016.
---------------------------------------------------------------------------

     Evaporative Emission System Integrity Check--a low 
pressure smoke leak test.
     Evaporative Canister Butane Working Capacity Check.
     Cam Lobe Wear--measuring overall cam height to indicate 
wear.
     Valve Seat Width and Valve Surface Contour--to measure 
wear on the valve seat.
     Valve Stem Height--to assess valve seat recession.
     Intake Valve Deposit measurement.
     ASTM D5185 Analysis of Engine Oil Drain Samples--to assess 
the presence of unusually high levels of wear metals.
     Fuel Pump Flow Evaluation.
vii. Summary and Conclusions of the Final Results of the DOE Catalyst 
Study
    Tier 2 motor vehicle testing concluded in late September. Analysis 
of the FUL emissions performance and emissions deterioration rates 
showed no significant difference between the E0 and E15 fueled groups. 
As shown in Tables 2 and 3 below, three E0 aged motor vehicles had 
failing emissions levels at the end of the test program and one 
additional motor vehicle failed one of several replicate tests. Two E15 
aged motor vehicles had failing emissions levels at the end of the test 
program. However, none of the emissions failures appeared to be 
associated with the differences in the aging fuels. There were no 
emissions component or material failures during aging that were related 
to fueling. There was a catalyst efficiency fault code on an E0 motor 
vehicle but not on the E15 counterpart.
---------------------------------------------------------------------------

    \39\ Our assessment of motor vehicles that exceeded emissions 
standards at FUL mileage accumulation is that the exceedances were 
not attributable to the fuel used.

                                             Table IV.A-2--E0 FUL Results Compared to Tier 2 Standards \39\
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Year                   Model               LFT@WOT                   NOX                          NMOG                           CO
--------------------------------------------------------------------------------------------------------------------------------------------------------
2007.................  Accord.................               N   Pass........................  Pass........................  Pass.
2006.................  Silverado..............               Y   Pass........................  Pass........................  Pass.
2008.................  Altima.................               N   Pass........................  Fail........................  Pass.
2008.................  Taurus.................               Y   Pass........................  Pass........................  Pass.
2007.................  Caravan................               N   Pass........................  Pass........................  Pass.
2006.................  Cobalt.................               N   Pass........................  Pass........................  Pass.
2007.................  Caliber................               N   Fail........................  Pass........................  Pass.
2009.................  Civic..................               N   Pass........................  Pass........................  Pass.
2009.................  Explorer...............               Y   Pass........................  Pass........................  Pass.
2009.................  Corolla................               Y   Pass........................  Pass........................  Pass.
2009.................  Liberty................               N   Pass........................  Pass........................  Pass.
2005.................  Tundra.................               Y   Pass........................  Pass........................  Pass.
2006.................  Impala.................               Y   Pass........................  Pass........................  Pass.
2005.................  F150...................               Y   Pass........................  Pass........................  Pass.
2006.................  Quest..................               N   N/A.........................  N/A.........................  N/A.
2009.................  Outlook................               Y   Pass........................  Pass........................  Pass.
2009.................  Camry..................               Y   Pass........................  Pass........................  Pass.
2009.................  Focus..................               Y   Fail........................  Pass........................  Pass.
2009.................  Odyssey................               N   Pass *......................  Pass........................  Pass.
                       Total Fails............  ...............  2...........................  1...........................  0.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes that average of emissions tests were below applicable FUL standard, but had at least one test value above the applicable FUL standard.

                          Table IV.A-3--E15 FUL Results Compared to Tier 2 Standards 40
----------------------------------------------------------------------------------------------------------------
    Year             Model             LFT@WOT              NOX                  NMOG                 CO
----------------------------------------------------------------------------------------------------------------
2007........  Accord.............               N   Pass...............  Pass...............  Pass.
2006........  Silverado..........               Y   Pass...............  Pass...............  Pass.
2008........  Altima.............               N   Pass...............  Pass...............  Pass.
2008........  Taurus.............               Y   Pass...............  Pass...............  Pass.

[[Page 68108]]

2007........  Caravan............               N   Pass...............  Pass...............  Pass.
2006........  Cobalt.............               N   Pass...............  Pass...............  Pass.
2007........  Caliber............               N   Pass...............  Pass...............  Pass.
2009........  Civic..............               N   Pass...............  Pass...............  Pass.
2009........  Explorer...........               Y   Pass...............  Pass...............  Pass.
2009........  Corolla............               Y   Pass...............  Pass...............  Pass.
2009........  Liberty............               N   Pass...............  Pass...............  Pass.
2005........  Tundra.............               Y   Pass...............  Pass...............  Pass.
2006........  Impala.............               Y   Pass...............  Pass...............  Pass.
2005........  F150...............               Y   Pass...............  Pass...............  Pass.
2006........  Quest..............               N   Fail...............  Pass...............  Pass.
2009........  Outlook............               Y   Pass...............  Pass...............  Pass.
2009........  Camry..............               Y   Pass...............  Pass...............  Pass.
2009........  Focus..............               Y   Fail...............  Pass...............  Pass.
2009........  Odyssey............               N   Pass...............  Pass...............  Pass.
              Total Fails........  ...............  2..................  0..................  0.
----------------------------------------------------------------------------------------------------------------
* Denotes that average of emissions tests were below applicable FUL standard, but had at least one test value
  above the applicable FUL standard.

    Using standard statistical tools, the resulting test results shown 
in Tables IV.A-2 and IV.A-3 support the conclusion that E15 does not 
cause Tier 2 motor vehicles to exceed their exhaust emission standards 
over their useful life.
---------------------------------------------------------------------------

    \40\ Our assessment of motor vehicles that exceeded emissions 
standards at FUL mileage accumulation is that the exceedances were 
not attributable to the fuel used.
---------------------------------------------------------------------------

    We performed a statistical analysis of this emission data to assess 
the impact of E15 on the rate of deterioration of exhaust emissions. We 
used a general linear model in SPSS\TM\ to perform this analysis. Each 
individual test motor vehicle was allowed its own base level of 
emissions (e.g., the Taurus aged on E0 was allowed one base emission 
level and the Taurus aged on E15 was allowed a different base emission 
level). This reflects the fact that individual motor vehicles, even of 
the same design, have emissions levels that differ to at least the same 
order of magnitude as the effect of fuel quality on emissions. Each 
model type (e.g., all of the Taurus motor vehicles as a group) was also 
allowed its own rate of emissions deterioration. This reflects the fact 
that motor vehicle design has a significant impact on the rate of 
emissions deterioration. We then tested the hypothesis that the effect 
of aging the motor vehicle on E15 caused a non-zero change in the rate 
of change in non-methane organic gases (NMOG) and NOX 
emissions. Each emission test was weighted to reflect the number of 
replicates performed on that motor vehicle at a specific mileage test 
point. For example, if only two replicate tests were performed on the 
Taurus aged on E0 at it mid-level test point (i.e., 67,000 miles), then 
each emission test was assigned a weight of 0.5. If three replicate 
tests were performed at that mileage, then each emission test was 
assigned a weight of 0.33.
    The statistical analysis of the remaining Tier 2 exhaust emission 
data indicated that the rate of deterioration in NMOG emissions 
decreased on average, while that for NOX emissions 
increased. However, the impacts were not statistically significant 
deterioration at the 90% confidence level.\41\ Thus, due to the 
variability in the effect across the various test motor vehicles, we 
cannot confidently reject the hypothesis that the emission 
deterioration rates on both blends are the same. In other words, there 
is a significant chance that the average impacts observed are the 
result of the randomness in the data. This conclusion is supported by 
the fact that the average changes in NMOG and NOX emissions 
deterioration rates went in opposite directions. If the catalysts had 
in fact been deteriorating faster with E15, then all emissions should 
have deteriorated consistently. Therefore, the catalyst durability test 
program results also support the conclusion that E15 will not 
contribute to Tier 2 motor vehicles exceeding their emission standards 
over their full useful life. The details of this statistical analysis 
can be found in an EPA Technical Summary located in the docket to this 
waiver decision.\42\
---------------------------------------------------------------------------

    \41\ The Agency has typically used a confidence level of 90% in 
CAA section 211(f)(4) waiver requests instead of the more 
conventional 95% confidence level. We feel that the 90% confidence 
level increases the likelihood that increases in deterioration would 
be statistically significant and therefore would be more 
conservative in this case. However, these differences are also not 
statistically significant at the 95% confidence level.
    \42\ Technical Summary of DOE Study on E15 Impacts On Tier 2 
Vehicles and Southwest Research Teardown Report. EPA Docket 
EPA-HQ-OAR-2009-0211.
---------------------------------------------------------------------------

    The results of the vehicle tear-down inspections were analyzed to 
assess whether E15 exhibited any signs of wear or materials 
incompatibility that might indicate durability concerns that could lead 
to elevated exhaust or evaporative emissions that might not have shown 
up in the FUL emission testing performed.\43\ For seven of the eight 
evaluations performed, there were no apparent differences at the end-
of-life between the motor vehicles that were operated on E15 and E0. 
While individual motor vehicle results varied (as one would expect in 
inspections such as this), there was no pattern that would suggest 
greater deterioration on E15, and none of the measurements indicated 
are a cause for a concern over powertrain durability for the Tier 2 
motor vehicles evaluated. The one area where motor vehicles aged on E15 
differed in their results was intake valve deposits. E15 showed a 
consistent and often significant increase in intake valve deposits in 
comparison to E0. This is not surprising given that prior detergent 
additive studies have shown E10 to be a more severe test fuel for 
intake valve deposits than E0. For this very reason the fuel on which 
fuel additive manufacturers must certify their detergent additive 
packages contains 10 vol% ethanol. Since the Tier 2 motor vehicles did 
not show increased exhaust emission deterioration over their FUL with 
E15 in comparison to E0, the increased intake valve deposits do not 
appear to have lead to a corresponding emissions increase. As a result, 
the finding that E15 leads to increased intake valve deposits appears 
to be primarily an issue to be addressed in

[[Page 68109]]

future gasoline detergent additive formulations.
---------------------------------------------------------------------------

    \43\ Ibid.
---------------------------------------------------------------------------

    Finally, the CRC engine durability study \44\ has limited relevance 
for the waiver decision because it used only E20 fuel. Initial data is 
for eight motor vehicles ranging from MY2001-2009 with initial mileage 
as high as 110,000 miles. The engines were removed and dynamometer-aged 
for 500 hours with 50% of the time at wide-open throttle (3500 rpm). 
Since the study used only E20 fuel and did not test matching engines 
aged on E0, there is no way to determine the influence of the fuel 
blend on engine deterioration. There were some elevated leakdown 
measurements observed in the study but there is no way to determine if 
they were fuel blend related or would have occurred even with E0 fuel. 
Also, several motor vehicles were listed as failing the leak tests yet 
the motor vehicles passed the leak test at later points in the study. 
In any event, all the engines that completed aging passed their motor 
vehicle emissions tests.
---------------------------------------------------------------------------

    \44\ CRC Project No. CM-136-09-1B Engine Durability Study of 
Mid-Level Ethanol blends, EPA Docket EPA-HQ-OAR-2009-0211-
14003.5.
---------------------------------------------------------------------------

2. Exhaust Emissions--Immediate Effects for MY2007 and Newer Light-Duty 
Motor Vehicles
    Instantaneous or immediate impacts of a fuel or fuel additive are 
those that are experienced essentially immediately upon switching from 
the original fuel. In the case of this partial waiver decision, the 
immediate exhaust emission impacts of interest are those that are 
caused by E15 in comparison to E0, which is the fuel on which the motor 
vehicles were certified. The immediate exhaust emission impacts must be 
taken into consideration along with the long-term or durability 
emission impacts discussed in the previous section in assessing the 
waiver. This section discusses the immediate exhaust emission impacts 
on MY2007 and newer light-duty motor vehicles. Discussion of immediate 
exhaust emission impacts on other motor vehicles is addressed in their 
respective sections. However, since Growth Energy's submission and 
information supplied by commenters regarding immediate emission impacts 
of E15 were not specific to the model year of the motor vehicles, this 
section also contains much of the information on immediate emission 
impacts for other vehicles as well.
a. Growth Energy's Submission
    Growth Energy supplied data produced from several test programs 
that measured the immediate emission impacts of E15 on motor vehicles 
spanning a range of model years, including several Tier 2 motor 
vehicles. Growth Energy claims that the ACE Study.\45\ the RIT Study, 
the Minnesota Center for Automotive Research (MCAR) Study,\46\ and a 
DOE Pilot Study show that E15 results in decreased emissions of 
NOX, non-methane hydrocarbons (NMHC), and CO on average, and 
no increase in NMOG emissions when compared to E0. Growth Energy argues 
that these studies demonstrate that E15 will not cause or contribute to 
the failure of motor vehicles to meet their emissions standards. While 
much of the data cited by Growth Energy was on E20, they argued that 
because the studies they submitted with their application show 
favorable emissions performance on gasoline-ethanol blends that 
contained higher than 15 vol% ethanol (i.e., E20), those results should 
be applicable to E15 by interpolation.
---------------------------------------------------------------------------

    \45\ Optimal Ethanol Blend-level Investigation, Final Report 
prepared by Energy & Environmental Research Center and Minnesota 
Center for Automotive research for American Coalition for Ethanol 
``ACE Study''. EPA Docket  EPA-HQ-OAR-2009-0211-0002.26.
    \46\ Use of Mid-Range Ethanol/Gasoline Blends in Unmodified 
Passenger Cars and Light Duty Trucks, prepared by Minnesota Center 
for Automotive research July 1999 ``MCARStudy.'' EPA Docket 
EPA-HQ-OAR-2009-0211-0002.24.
---------------------------------------------------------------------------

b. Public Comment Summary
    The Alliance of Automobile Manufacturers (``The Alliance'') and 
several others commented that EPA has repeatedly outlined in past 
waiver decisions and public presentations important methodological 
considerations necessary to conduct a rigorous test program which would 
provide data sufficient to satisfy waiver criteria.\47\ Comments from 
the Alliance describe the data requirements EPA has required in the 
past, specifically noting that those test programs required the 
following: (1) Use representative test fleets of motor vehicles 
available in the market; (2) conduct back-to-back motor vehicle pair 
testing to control for variability; (3) compare test fuel results with 
a baseline certification fuel; (4) use Federal certification test 
procedures (FTP) for emissions testing; (5) evaluate emissions effects 
over the full useful life for durability testing through real-world 
aging; and (6) perform statistical analyses to provide defensible 
results. The Alliance went on in their comments to highlight 
deficiencies in one or more of these data requirements in each of the 
studies cited by Growth Energy.
---------------------------------------------------------------------------

    \47\ See Alliance of Automobile Manufacturers Comments, National 
Petrochemical and Refiners Association, the American Petroleum 
Institute's Comments, and the Alliance for the Safe Alternative 
Fuels Environment comments in EPA Docket EPA-HQ-OAR-2009-
0211.
---------------------------------------------------------------------------

    Additionally, the Alliance and others argue that none of the 
studies submitted by Growth Energy used nationally ``representative'' 
test fleets. The Alliance points out that the American automobile fleet 
takes about 20 years to turn over, and that a well-executed study 
should have a test fleet that is proportionally similar to the model 
years that comprise the national fleet. The Alliance argues that a bulk 
of the emissions data cited in Growth Energy's waiver request focus on 
newer (i.e., Tier 2) motor vehicles and do not adequately represent the 
national motor vehicle fleet and that these older motor vehicles may be 
more sensitive to the effects of higher gasoline-ethanol blends and 
constitute a greater portion of the number of motor vehicles currently 
in use. Many comments recommend that the Agency deny Growth Energy's 
request based on the potentially adverse effects of E15 on older motor 
vehicles.
    Several commenters, including the automobile manufacturers, 
petroleum refiners, environmental organizations and State agencies, 
noted the expected linear relationship between ethanol content in 
gasoline-ethanol blends and increased NOX emissions. These 
commenters pointed out that the EPA Predictive Models, MOVES model and 
the MOBILE6.2 model all predicted increased NOX emissions as 
a gasoline-ethanol blend increases the ethanol content. These models 
are used for air quality modeling purposes for compliance with State 
and Federal air quality standards and are based on comprehensive motor 
vehicle testing spanning decades. These commenters argued further that 
these increases in NOX may cause a sizable portion of the 
motor vehicle fleet to exceed emissions standards, especially if a 
motor vehicle was close to the emissions standard.
c. EPA Analysis
    The Agency agrees with commenters that there are several 
limitations of the studies cited by Growth Energy and/or the analyses 
they performed, which undermine their conclusions. The ACE study cited 
by Growth Energy does not provide useful information to assess the 
emissions performance of motor vehicles for purposes of this waiver 
decision since it tested three non-flex fuel Tier 2 motor vehicles 
primarily under high-speed and high-load conditions, atypical of most 
in-use motor vehicle operation and not representative of motor vehicle 
certification conditions. The study likely shows that the high heat of 
vaporization and high octane of ethanol

[[Page 68110]]

can enhance vehicle performance under wide-open throttle conditions and 
high loads, but the Agency believes that it is not relevant for 
evaluating emissions under normal operating conditions as observed on 
properly loaded motor vehicles tested on certification test cycles 
generally required for a waiver emission impacts demonstration.
    The RIT Study cited by Growth Energy was an interim report of 
ongoing work in which E0 and E20 fuels were tested in 10 1998-2004 
model year motor vehicles from the Monroe County Fleet Center, none of 
which were designed to comply with Tier 2 emission standards. The 
emissions testing performed at the time of Growth Energy's application 
failed to properly measure emissions related to the ethanol (i.e., 
alcohols and aldehydes) which contribute to the NMOG emissions. 
Furthermore, the testing schedule did not perform back-to-back testing 
of the different fuels at common motor vehicle mileage intervals, thus 
confounding fuel and normal deterioration effects. As discussed below, 
we believe these shortcomings were subsequently corrected in later 
testing through the support of the NREL, but the data cited by Growth 
Energy could not be used to quantify the immediate emissions impacts of 
E15.
    The MCAR Study cited by Growth Energy tested 15 motor vehicles of 
various model years from 1985 to 1998. However, the emissions were 
measured over only a hot portion of the certification cycle and the 
individual test results needed for analysis were never submitted or 
made available to the Agency. Therefore, it could not be used to 
compare the emissions performance of the motor vehicles to the 
emissions standards. Furthermore, since only E10 and E30 were tested, 
it cannot be used to quantify the immediate emission impacts relative 
to the official E0 certification fuel.
    Only the DOE Pilot Study cited by Growth Energy provides useful 
information for assessing the immediate exhaust emission impacts of 
E15. It measured emissions from 16 vehicles, including seven Tier 2 
compliant motor vehicles, on E0, E10, E15, and E20 splash blends over 
the LA92 drive cycle. However, even it is of limited usefulness in 
drawing conclusions regarding the impact of E15 across the large in-use 
motor vehicle fleet due to the limited size and nature of the test 
program (fleet makeup, test fuels). The DOE Pilot Study was not 
designed to quantify the emissions impact across the fleet but instead 
to probe a limited sample of high sales volume motor vehicles certified 
to different emission standards for any immediate emission problems. By 
itself, it is not a basis for drawing any definitive conclusions with 
respect to E15 emissions performance.
    Thus, each of the individual studies is of limited value in 
evaluating the immediate emissions impact of E15 across the various 
groups of motor vehicles at issue in this partial waiver decision. As a 
group, these studies are no stronger as they do not fill the gaps in 
each of the various studies. Therefore, the Agency does not believe 
that the studies submitted by Growth Energy adequately support the 
conclusions that Growth Energy drew from them regarding the immediate 
exhaust emission impacts from using E15. At the same time, the Agency 
believes that there is sufficient data and information available to 
demonstrate that the immediate emissions impact of E15 follows the same 
pattern as E10 in that there will be a decrease in NMOG (as well as 
NMHC and total HC) and CO emissions and an increase in NOX 
emissions. While the magnitude of the NOX emissions increase 
is greater with E15 it is still not enough to cause at least Tier 2 
compliant motor vehicles to violate their NOX emissions 
standard.
    There is a long history of test programs that have been carried out 
on light-duty motor vehicles and trucks that have quantified the 
emission impacts of blending ethanol up to 10 vol% into gasoline. These 
test programs, dating back to the earliest days of gasoline-ethanol 
blends, have found that the oxygen content of ethanol enleans the A/F 
ratio in motor vehicles during open-loop operation, causing a decrease 
in HC and CO emissions, but also results in a corresponding increase in 
NOX emissions. These test programs have also shown that 
during normal closed-loop operation the combustion characteristics of 
ethanol contribute to small increases in NOX emissions. 
There are other factors that can play into the emission impacts, such 
as other changes to gasoline that occur or are made when ethanol is 
added, the high heat of vaporization and high octane of ethanol, and 
the design and control algorithms of the motor vehicle. However, 
similar emission trends with ethanol have been seen consistently in 
most carefully controlled and properly conducted studies. These studies 
have been used to develop emission models, such as the EPA Predictive 
Models \48\ incorporated into the Agency's MOVES model,\49\ that have 
been thoroughly peer reviewed. The result is that for a typical E10 
blend of gasoline, exhaust NMHC emissions have been found to decrease 
by about 5%, and NOX emissions to increase by about 6%, 
relative to E0.\50\
---------------------------------------------------------------------------

    \48\ A detailed description of the development of the EPA 
Predictive Models is available in a Technical Support Document: 
``Analysis of California's Request for Waiver of the Reformulated 
Gasoline Oxygen Content Requirement for California Covered Areas'', 
EPA420-R-01-016, June 2001.
    \49\ The Agency's MOVES model has undergone extensive peer 
review and testing, and incorporates the EPA Predictive Models.
    \50\ These effects are based on the EPA Predictive Models and 
are generally consistent with conclusions of CRC E-74b report (e.g., 
Figure ES-2). Fuels properties evaluated were based on market 
averages and were as follows: E0 had aromatics content of 29.5 vol%, 
a T50 of 215 [deg]F, a T90 of 325 [deg]F, and an RVP of 8.9 psi and 
E10 had aromatics content of 24.9 vol%, a T50 of 202 [deg]F, T90 of 
325 [deg]F, and an RVP of 8.9 psi. Other parameters not mentioned 
here were assumed to be held constant between the blends.
---------------------------------------------------------------------------

    While the magnitude of impact may vary by a few percent depending 
on the motor vehicle technology and how other fuel properties change 
when ethanol is blended into gasoline, the relative magnitude and 
direction of the impacts remains consistent for typical fuels.\51\
---------------------------------------------------------------------------

    \51\ Results based on data mostly from vehicle models that 
predated the Tier 2 emission standards, so several recent test 
programs have been focused on Tier 2 vehicles that will soon make up 
the majority of the in-use fleet.
---------------------------------------------------------------------------

    While there is a great deal known about the immediate impacts of 
gasoline-ethanol blends on emissions from the past studies and 
modeling, it is all based on pre-Tier 2 motor vehicles and only ethanol 
blends up to E10. The issue for the waiver is whether the impacts of 
E15 would be significantly different in comparison to E0 and cause 
motor vehicles to violate their emission standards over their full 
useful life, and whether there is sufficient information to support 
such a conclusion for Tier 2 motor vehicles as well as other motor 
vehicles. While the information provided by Growth Energy was of 
limited value, we believe that the additional information that is now 
available can be used to assess the immediate emissions impacts on Tier 
2 motor vehicles sufficiently to respond to the E15 waiver request.
    CRC recently completed a test program (E-74b) that evaluated the 
emissions performance of E10 and E20 compared with E0 (``CRC Emissions 
Study'').\52\ The study tested 15 MY1994-2006 motor vehicles on E0, 
E10, and E20. The motor vehicles represented a cross-section of several 
motor vehicle technologies and emissions compliance levels, and 
included three Tier 1, five NLEV, and seven Tier 2 motor vehicles. The 
test fuels were match-blended to yield appropriate test program 
volatility

[[Page 68111]]

goals while attempting to maintain other desired property targets, such 
as aromatics content and distillation behavior. The study's authors 
attempted to evaluate increased oxygen levels through the blending of 
ethanol in a variety of gasolines with fuel parameters representative 
of those found in the real world. Emissions performance testing was 
completed using the FTP at 75 [deg]F and 50 [deg]F. The study found a 
statistically significant positive linear relationship between the 
amount of ethanol blended into gasoline and NOX emissions 
when controlling other fuel parameters. In other words, as the level of 
ethanol blended into gasoline increased, the amount of NOX 
emissions also increased, and this effect remained relatively 
consistent across the motor vehicle technologies tested. Specifically, 
the study found that NOX emissions increased with E10 by 
about 9% relative to E0, consistent with the projection from the EPA 
Predictive Models when the study's fuel properties are input. 
NOX emissions for E20 increased by about 19% relative to E0. 
The test program also found that HC emissions declined from 8% to 16% 
over this same range. While not linear, a relationship of decreasing 
emissions with increasing ethanol content was also observed for CO 
emissions. Presumably the impacts of E15, had they tested it, would 
have fallen somewhere between those of E10 and E20.
---------------------------------------------------------------------------

    \52\ CRC Report No. E-74b, ``Effects of Vapor Pressure, Oxygen 
Content, and Temperature on CO Exhaust Emissions'', May 2009, EPA 
Docket EPA-HQ-OAR-2009-0211-13980.
---------------------------------------------------------------------------

    The DOE Pilot Study cited by Growth Energy tested 16 different 
MY1999-2007 light-duty motor vehicles on E0, E10, E15 and E20. These 
motor vehicles included three Tier 1, six NLEV, and seven Tier 2 motor 
vehicles of varying odometer mileage, generally proportional to age 
(i.e., older motor vehicles had higher miles). Test fuels were splash 
blended with the certification E0 fuel allowing the other fuel 
properties (aromatic content, RVP, etc.) to change with ethanol 
dilution. The motor vehicles were tested over the LA92 drive cycle 
(also known as the Unified Cycle) which is considered to be 
representative of real-world acceleration rates and speeds.\53\ The 
study found small reductions in NOX and NMOG emissions 
across the different fuels that were not statistically significant. 
While these findings do not show the NOX emissions increase 
and NMOG and CO emissions decrease that might be anticipated, this may 
have been due to the limited scope of the program, the test cycle, and 
other changes in the fuel properties known to directly impact 
emissions. Nonetheless, the results do not show that the immediate 
NOX emissions impacts of E15 to be of concern.
---------------------------------------------------------------------------

    \53\ The Alliance commented that only the FTP test cycle should 
be used for emission impacts. While the LA92 cannot be used for 
confirmation of vehicle emissions compliance, it is used regularly 
in engineering and research work, including by manufacturers to 
measure emission impacts and confirm OBD monitor operation and 
therefore the Agency believes it remains a valid cycle for emissions 
analysis.
---------------------------------------------------------------------------

    During the course of the DOE Catalyst Study (see Section IV.A.1.d), 
some back-to-back tests of E15 and E0 fuels were performed. This 
portion of the testing was not designed to be able to quantify the 
immediate emission impacts with any degree of statistical confidence 
unless the impacts turned out to be very large, and in fact it did not 
show any statistically significant changes in NOX or NMOG 
emissions for E15 compared to E0. At the same time, the data is useful 
in supporting the conclusion that the immediate emission impacts of E15 
compared to E0 are not large, and likely in the same range as other 
studies have shown.
    Finally, as mentioned above, RIT performed additional testing 
subsequent to the results Growth Energy submitted as part of its waiver 
request application. These later results were presented at a meeting of 
the Mid-Level Ethanol Blends Research Coordination Group on May 5, 
2010.\54\ These results showed a 13.9% reduction in HC (NMOG was not 
measured), 26.9% reduction in CO, and a 6.2% increase in NOX 
for E20 in comparison to E0. Again, presuming E10 and E15 results would 
lie within this range, these results are generally consistent with 
earlier studies and models and continue to confirm that no large 
increases in NOX emissions are expected.
---------------------------------------------------------------------------

    \54\ RIT-CIMS/USDOT E20 Test and Evaluation Program May 2010, 
EPA Docket EPA-HQ-OAR-2009-0211-14003.8.
---------------------------------------------------------------------------

    When EPA assesses the more recent information and data available, 
we believe it shows both: (1) That Tier 2 motor vehicles exhibit 
similar immediate emission impact trends (small increases in 
NOX and small decreases in NMHC and CO) as the data and 
modeling show for older motor vehicles; and (2) that the immediate 
emission impacts of E15 continue to show the same trends as E10 with 
the effects being slightly exaggerated due to the higher ethanol 
content. These four studies (CRC E74b, the DOE Pilot Study, the DOE 
Catalyst Study, and the RIT Study) are all of limited size and scope 
and thus show considerable variation in their results, for 
NOX emissions in particular. However, taken together they 
suggest that the immediate emission impacts of E10 are likely to be 
comparable to those that would be projected using the EPA Predictive 
Models and that a slightly larger NOX emission impact would 
be expected with E15. Thus, the NOX emissions impact of E15 
is likely to be in the range of 5% to 10% based on extrapolation from 
E10 modeling using the Agency's Predictive Models, and this impact 
would be expected to be roughly comparable for newer Tier 2 motor 
vehicles as well as older motor vehicles. For example, a Tier 2 motor 
vehicle that had NOX emissions levels of 0.030 grams per 
mile (``g/mi'') on E0 would be expected to have NOX 
emissions levels of 0.033 or less if the same motor vehicle was tested 
on E15.
    Although the overall weight of the available data shows that E15 
will cause an increase in NOX emissions, the issue is 
whether such increases, by themselves or in combination with long-term 
durability effects, would cause motor vehicles to exceed their 
certified emissions standards. Given the relatively small magnitude of 
the immediate NOX emissions increase in relation to the 
large compliance margins that motor vehicle manufacturers have 
traditionally built-in to the products they certify,\55\ and the lack 
of any significant increase in NOX emissions deterioration 
with E15 in comparison to E0 (as discussed in section IV.A.1.a.), it is 
not anticipated that using E15 will cause or contribute to Tier 2 
compliant motor vehicles exceeding their emissions standards.
---------------------------------------------------------------------------

    \55\ A compliance margin is the difference between the emission 
standard and a vehicle or engine's actual certification emission 
level. This certification level includes the manufacturer's 
projected rate of deterioration over the useful life of the vehicle.
---------------------------------------------------------------------------

    A survey of official EPA Certification data showed that the average 
compliance margins for the MY2007 light-duty motor vehicle fleet was 
over 50% for NOX emissions.\56\ This margin is designed into 
motor vehicles by the manufacturer to account for variations in 
production vehicles and changes to the motor vehicle during actual 
field usage. Additionally, data collected from EPA's In-use 
Verification Program (IUVP) demonstrate large compliance margins for 
motor vehicles operating in real-world conditions. IUVP is a 
manufacturer run program in which manufacturers test motor vehicles for 
emissions levels and submit the results to EPA. IUVP was designed to 
ensure that light-duty motor vehicles are meeting emissions standards 
in-use

[[Page 68112]]

versus only through the certification process. According to the data 
submitted to EPA, the in-use compliance margins are similar to 
compliance margins experienced during certification. For IUVP testing 
for MY2007 as of August 2010, the average compliance margin for light-
duty motor vehicles certified to the Tier 2 Bin 5 standard was over 
60%.\57\
---------------------------------------------------------------------------

    \56\ See 2007 Progress Report: Vehicle and Engine Compliance 
Activities. These compliance margin values are consistent with the 
general trend EPA has seen for Tier 2 vehicles.
    \57\ Tier 2 Bin 5 is the certification standard for a large 
majority of vehicles certified in MY2007 (approximately 80%). See 
2007 Progress Report: Vehicles and Engine Compliance Activities.
---------------------------------------------------------------------------

    In addition, the results of the recently completed DOE Catalyst 
Study also supports this conclusion for Tier 2 motor vehicles. While 
the Catalyst Durability Test Program was carried out to assess long-
term exhaust emissions (durability) impacts, the immediate emission 
impacts of ethanol are also captured in the testing. All but two of the 
Tier 2 motor vehicles tested continued to comply with their exhaust 
emission standards at FUL despite both the immediate and durability 
impacts of E15 on emissions. One motor vehicle appeared to exceed the 
standard not due to E15, but other problems, as it also exceeded the 
standard on E0. The other motor vehicle model experienced catastrophic 
issues with the comparable E0 and E20 motor vehicles which were unable 
to complete the testing. Those motor vehicles that complied with the 
standard on E15 continued to comply as is typical in IUVP data.\58\
---------------------------------------------------------------------------

    \58\ EPA, in collaboration with DOE and CRC has recently 
completed the testing part of the largest fuels emission research 
program conducted in the past two decades to assess the impacts of 
gasoline fuel properties on emissions, including the relationship 
between ethanol content and higher NOX emissions. E-89 
``Comprehensive Gasoline Light-duty Exhaust Fuel Effects Test 
Program.'' The test program evaluated emission changes on a motor 
vehicle test fleet consisting of 15 Tier 2 vehicles (including three 
FFVs) that was specifically selected to be representative of the 
makes and models in the national light-duty motor vehicle fleet. The 
focus was on Tier 2 vehicles to fill a data gap, since existing 
emission models are based on testing conducted on older technology 
vehicles. The program used 27 fuels of varying volatility (RVP), 
aromatic content, distillation range (T50 and T90) and ethanol 
concentrations (E0, E10, E15 and E20), which were blended specially 
to allow emission impacts to be attributed to one fuel parameter or 
another. Each vehicle in the test program had multiple emissions 
tests conducted on each fuel resulting in nearly 1000 emissions 
tests. While testing has been completed, the Agency is still in the 
process of working with DOE and CRC to evaluate the test data and 
develop emission models based on it to allow an understanding of the 
impacts of fuel changes on emissions. However, since the evaluations 
of the data have not been completed and the data is not publicly 
available, EPA is not relying on the data for purposes of evaluating 
the waiver request. EPA has reviewed the data preliminarily solely 
to determine whether it would be appropriate to delay making a 
decision until the evaluation is complete and the test program 
results could be incorporated into a decision on the waiver. EPA's 
view based on its preliminary review of the data is that it is 
appropriate to go forward at this time with the waiver decision, as 
it is anticipated that the test program will reinforce the results 
found in the earlier studies and in the EPA Predictive Models.
---------------------------------------------------------------------------

d. Conclusion
    While data is limited on Tier 2 motor vehicles, and particularly 
with E15, there is a long history of test programs that have been 
carried out on light-duty motor vehicles and trucks that have 
quantified the immediate emissions impacts of blending ethanol into 
gasoline. The common theme across these various test programs is that, 
consistent with combustion theory, the enleanment of the A/F ratio 
caused by the oxygen in ethanol leads to an immediate reduction in HC 
and CO emissions and a corresponding increase in NOX 
emissions. While other factors influence this, such as the combustion 
characteristics of the ethanol itself, other changes that occur in the 
gasoline when ethanol is added, and the test conditions under which the 
emissions are measured, cause some variations in study results, the 
bottom line is that the emissions changes are fairly well known. 
Several more recent studies have been performed looking at the impacts 
of gasoline-ethanol blends on more recent Tier 2 compliant motor 
vehicles, as well as some older model year motor vehicles. The size, 
scope, and design of these studies limit the ability to draw any firm 
conclusion to quantify the precise magnitude of the immediate emissions 
impacts. However, analysis of this more recent data in the context of 
historical data and modeling leads to the conclusion that Tier 2 motor 
vehicles likely respond similarly to older technology motor vehicles 
with respect to immediate emissions impacts, and that the magnitude of 
the immediate emissions impacts of E15 are relatively small, with 
decreases in NMHC and CO emissions and increases in NOX 
emissions in the range of 5 to 10% depending on how other fuel 
properties change. For Tier 2 motor vehicles, there is generally a 
significant margin in both motor vehicle certification and in-use to 
emit within the emission standards even if the motor vehicle 
experiences the predicted immediate NOX increases from E15 
when compared to E0.
    The Agency believes that the data above, coupled with the average 
compliance margins, are sufficient to show that the immediate exhaust 
emissions effects by themselves would not cause motor vehicles to 
exceed their exhaust standards over their useful lives. As discussed 
earlier, however, whether the fuel or fuel additive will cause motor 
vehicles to exceed their exhaust emission standards requires 
consideration of the combined impact of immediate emissions increases 
and the long-term exhaust emissions (durability) effects.\59\
---------------------------------------------------------------------------

    \59\ Separately, the Agency has been performing analysis needed 
to support the anti-backsliding analysis required under the Energy 
Independence and Security Act. We are now in the process of 
assessing possible control measures to offset the potential 
increases in ozone and particulate matter that are expected to 
result from the increased use of renewable fuels required by EISA 
and in response to the May 21, 2010 presidential memorandum 
directive. (NOX emissions contribute to the formation of 
both pollutants.) We will incorporate the results of our analysis 
under this assessment in a proposal on new motor vehicle and fuel 
control measures.
---------------------------------------------------------------------------

3. Evaporative Emissions on MY2007 and Newer Light-Duty Motor Vehicles
a. Introduction
    EPA has set evaporative emission standards for motor vehicles since 
1971. During the ensuing years, these evaporative standards have 
continued to evolve, resulting in additional evaporative emissions 
reductions. Thus, consideration of the impact of E15 on evaporative 
emissions compliance requires consideration of the applicable 
evaporative emissions standards to which the particular motor vehicles 
were certified. There are now five main components to motor vehicle 
evaporative emissions that are important for our standards: (1) Diurnal 
(evaporative emissions that come off the fuel system as a motor vehicle 
heats up during the course of the day); (2) hot soak (evaporative 
emissions that come off a hot motor vehicle as it cools down after the 
engine is shut off); (3) running loss (evaporative emissions that come 
off the fuel system during motor vehicle operation); (4) permeation 
(evaporative emissions that come through the walls of elastomers in the 
fuel system and are measured as part of the diurnal test); and (5) 
unintended leaks due to deterioration/damage that is now largely 
monitored through onboard diagnostic standards.
    Prior to MY1999, the evaporative emissions standards addressed 
diurnal and hot soak emissions, but the test procedure did not require 
control of running loss and permeation emissions. The Enhanced 
Evaporative Emissions requirements were fully phased in for Light-duty 
motor vehicles and light-duty trucks by MY1999. These new requirements 
included both new standards and new test procedures: The two-day and 
three-day diurnal tests with new canister loading procedures, and a 
running loss test. In addition to the new procedures, the useful life 
was

[[Page 68113]]

extended from 5 years/50,000 miles to 10 years/100,000 miles for light-
duty motor vehicles.
    Along with the Enhanced Evaporative Emissions requirements, EPA 
introduced the On Board Diagnostic (OBD) requirements for evaporative 
leak detection monitors. This required motor vehicles to detect a leak 
equivalent to .040 inch in the fuel or evaporative emissions system. 
Beginning in MY2001, EPA allowed manufacturers to comply with 
California OBD regulations which required motor vehicles to detect a 
leak equivalent to a .020 inch. While not required Federally, many 
manufacturers developed one leak detection system for sale in all 50 
States which complied with the more stringent California requirement.
    The Federal Tier 2 evaporative emissions standards \60\ were phased 
in beginning in 2004 with the exhaust standards and were fully phased 
in by 2007 for light-duty motor vehicles (2009 for HLDT and MDPV). 
These standards were significantly lower (over a 50% reduction for LDVs 
and LLDTs--as seen in Table 1 below) and used the same test procedures, 
which were introduced with the Enhanced Evaporative Emissions 
requirements. However, one important change was made in that a 
demonstration of evaporative system durability on E10 was required to 
address concerns with respect to permeation of hydrocarbons through 
elastomers in the fuel and evaporative emission systems. This prompted 
manufacturers to change materials to those with improved permeation 
barriers with ethanol. Once again in 2009 the evaporative emission 
standards for LDVs were cut nearly in half with the introduction of the 
Federal LEV II requirements, a harmonization of Federal and California 
evaporative standards. See Table IV.A-4 below. This section discusses 
the evaporative emissions impacts on MY2007 and newer light-duty motor 
vehicles. Discussion of evaporative emission impacts on older motor 
vehicles is addressed in sections IV.B. and IV.C. However, since the 
information we received through Growth Energy's waiver request 
application, information supplied by commenters, and other available 
information regarding evaporative emission impacts of ethanol blends 
were not specific to the model year of the motor vehicles, this section 
also contains some of the information covering older motor vehicles as 
well.
---------------------------------------------------------------------------

    \60\ This Decision refers to several vehicle types as commonly 
used acronyms: Light-duty motor vehicles (LDV), light-duty trucks 
(LDT), light light-duty trucks (LLDT), heavy light-duty trucks 
(HLDT), and medium-duty passenger vehicles (MDPV). See ``Vehicle 
Weight Classifications'' found at: http://www.epa.gov/otaq/standards/weights.htm.
---------------------------------------------------------------------------

BILLING CODE 6560-50-P

[[Page 68114]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.001

BILLING CODE 6560-50-C
b. Growth Energy's Submission
    Growth Energy primarily argued that based on the similar volatility 
and permeation characteristics of E15 to E10, the evaporative emissions 
for motor vehicles using E15 should be no

[[Page 68115]]

worse than those from motor vehicles using E10. Growth Energy pointed 
to two studies to support this conclusion. The first study cited was 
the E-65-3 study on permeation conducted by the CRC.\61\ The E-65-3 
study measured the impact of E6, E10, E20, and E85 gasoline-ethanol 
blends on permeation and diurnal canister breakthrough emissions in 
comparison to E0 on test rigs taken from five MY2000-2005 California 
motor vehicles. The testing was performed on California fuels using 
California test procedures.
---------------------------------------------------------------------------

    \61\ CRC Report No. E-65-3, Fuel Permeation from Automotive 
Systems: E0, E6, E10, E20 and E85 Final Report, December, 2006. EPA 
Docket EPA-HQ-OAR-0211-14012.
---------------------------------------------------------------------------

    The second study cited was completed by the University of Stockholm 
for the government of Sweden to investigate the potential effects that 
increased ethanol levels blended into gasoline may have if approved for 
use in Sweden (``Stockholm Study'').\62\ The Stockholm Study is 
primarily a literature review that includes studies and experiences 
with gasoline-ethanol blends in several countries (e.g., Brazil, the 
Netherlands, and Australia). As part of the Stockholm Study, a small 
test program compared vapor generation rates from two summer-time 
gasoline fuels blended with ethanol at contents of zero, five, 10, and 
15 vol%. The Stockholm Study found that the impact of ethanol on the 
RVP of gasoline blends peaked somewhere between E5 and E10, consistent 
with past studies.
---------------------------------------------------------------------------

    \62\ Growth Energy Request Letter--Tab 4, 1st half, EPA Docket 
EPA-HQ-OAR-2009-0211-0002.12.
---------------------------------------------------------------------------

    Other than cross-referencing materials compatibility testing, 
Growth Energy did not address the potential impacts of E15 on 
evaporative emissions durability, hot soak and running loss emissions, 
or fuel system integrity (leaks as monitored by the OBD system) to 
assess noncompliance with the evaporative emissions standards. Growth 
Energy simply used these two studies to argue that the evaporative 
emissions of E15 will be lower or no worse than E10 or E6. They argued 
that since the CRC Permeation Study and the Stockholm Study show no 
increases in evaporative emissions between E10 and E15, that materials 
compatibility testing showed no problem, and that if EPA can place a 
condition requiring finished fuels to meet ASTM volatility 
specifications, evaporative emissions criteria for a waiver are 
satisfied.
c. Public Comment Summary
    Several commenters point to design flaws and limitations with both 
the Stockholm Study and CRC Study which underscore the need for more 
investigation into E15's impact on vehicles' evaporative emissions. API 
and others argue that the fuels used in the Stockholm Study's 
evaporative emissions test program do not resemble fuels produced and 
used in the United States. API argues that RVP of the base fuels tested 
in the program are relatively high in comparison to summertime non-
ethanol fuels used in the US (9.14 and 10.15 psi). API also argues that 
since the test program did not complete the evaporative emissions 
testing in the VT-SHED with actual vehicles and did not utilize the EPA 
approved Federal Test Procedure, it would be difficult to determine 
what the actual emissions results for E15 would have been under real 
world conditions.
    Similarly, many commenters noted limitations and concerns with the 
CRC E-65-3 permeation study cited by Growth Energy. The study did not 
evaluate evaporative emissions from entire motor vehicles, but rather 
from test rigs set up specifically to study permeation rates with 
various gasoline-ethanol blends. While the study also measured diurnal 
emissions by measuring breakthrough of the canister, it did so only 
using very low RVP fuels that met California's reformulated gasoline 
standards. Further, the test rigs were uniquely configured for precise 
permeation measurement and not for a quantitative assessment of vapors 
from canister breakthrough.
    Several commenters allude to the fact that Growth Energy provided 
no analysis of how evaporative emissions control systems will behave 
over the full useful lives of motor vehicles. The New York Department 
of Environmental Conservation (``NYDEC'') expressed in particular their 
concern that full useful life testing is needed since E15 could cause 
increased water absorption which in turn may lead to decreased canister 
capacity and evaporative emissions breakthrough of the canister.
    Several comments noted that Growth Energy often compares 
performance results of E15 to E10 rather than E15 to certification fuel 
(E0) to satisfy waiver criteria. AllSAFE and the Alliance both suggest 
that EPA has a legal obligation to only consider comparisons of E15 to 
certification fuel. AllSAFE argues that EPA has required that CAA 
section 211(f)(4) waiver requests compare the test fuel with 
certification fuel over the past 30 years, and that comparing E15 to 
E10 would be making a comparison between two fuels that are not 
``substantially similar'' to certification fuel. AllSAFE continues by 
arguing that allowing comparisons to fuels that have been granted 
waivers rather than a comparison to fuels that are substantially 
similar to certification fuels may allow for ``incremental creep'' that 
might mask emissions effects of new fuels or fuel additives.
d. EPA Analysis
    Growth Energy's conclusions with respect to evaporative emission 
impacts are not adequately supported by the evidence they submitted. 
They did not provide any test data of in-use motor vehicles showing 
that they continued to meet their evaporative emission standards over 
their full useful life, but rather provided only limited information to 
address these concerns. The Stockholm Study they cited cannot be used 
to assess actual motor vehicle emission performance in comparison to 
their standards, but rather simply quantifies the potential increase in 
vapor generation rates (fuel volatility) for various gasoline-ethanol 
blends. Increased vapor generation may result in increased motor 
vehicle emissions, but one needs to evaluate this in the context of 
evaporative emissions control systems on actual motor vehicles.
    The CRC E-65-3 permeation study cited by Growth Energy did not 
evaluate evaporative emissions from entire motor vehicles, but rather 
from test rigs set up specifically to study permeation rates with 
various gasoline-ethanol blends. This study measured diurnal using only 
very low RVP fuels that met California's reformulated gasoline 
standards. As a result, it cannot be used to assess the impact on 
diurnal emissions of higher volatility fuels. However, perhaps the most 
important limitation of this study is simply that it was a predecessor 
to much more comprehensive studies not addressed by Growth Energy (E-
77, E-77-2, E-77-2b, E-77-2c) \63\ into the permeation and evaporative 
emission impacts of various gasoline-ethanol blends that grew out of 
the original E-65-3 study.
---------------------------------------------------------------------------

    \63\ These studies are available at http://www.crcao.org.
---------------------------------------------------------------------------

    In addition to these study limitations, perhaps the most important 
concern is that Growth Energy failed to use the available information 
to perform the correct comparison. To grant a waiver for a fuel or fuel 
additive under CAA section 211(f)(4), it must be shown that motor 
vehicles will continue to meet their evaporative emission standards 
over their full useful life. Short of actual test data on motor 
vehicles demonstrating this, the evaluation of the potential emissions 
impacts must compare motor vehicles using the new fuel or fuel additive 
to their emissions performance on the fuel they were

[[Page 68116]]

certified on, in this case E0. Instead, when considering the potential 
permeation and diurnal emission impacts, Growth Energy only drew their 
conclusion for E15 relative to E10 and E6, which themselves have been 
demonstrated in the CRC studies to cause elevated permeation and 
diurnal emissions.
    Growth Energy also failed to address potential long-term 
evaporative emission durability concerns in any meaningful way, 
referencing only the materials compatibility work discussed in section 
IV.A.4.
    Despite the limitations of the Growth Energy petition with respect 
to vehicle evaporative emissions, the Agency believes that sufficient 
information is available through other studies to support the 
conclusion that as long as E15 meets a summertime gasoline volatility 
level of no higher than 9.0 psi, Tier 2 compliant motor vehicles--which 
includes all MY2007 and newer gasoline-fueled light-duty motor vehicles 
and trucks, and medium-duty passenger vehicles--are expected to 
continue to comply with their evaporative emissions standards on E15.
    By virtue of testing of motor vehicles with gasoline-ethanol blends 
for more than three decades, it is known that gasoline-ethanol blends 
can have negative impacts on evaporative emissions when compared to E0 
on which the motor vehicles are certified. Ethanol impacts diurnal 
emissions primarily through its impact on the volatility of the 
gasoline-ethanol blend, boosting the RVP of the final gasoline-ethanol 
blend by approximately 1 psi unless the gasoline blendstock is produced 
to offset the increase. Permeation emissions through elastomers in fuel 
tanks, lines, valves, and connectors have been shown to be strongly 
influenced by the presence of ethanol in the fuel, though the Tier 2 
standards have minimized this impact for Tier 2 compliant motor 
vehicles. Hot soak and running loss emissions will change in chemical 
composition with gasoline-ethanol blends and could be impacted over the 
long term by impacts of ethanol on motor vehicle component materials. 
Ethanol is also known to cause degradation of certain materials that 
have been used in motor vehicle gasoline and evaporative emission 
control systems that could lead to increased evaporative emissions over 
time. As a result of the changing emission standards and motor vehicle 
designs over the years, these impacts of ethanol on evaporative 
emissions will vary depending on the age of the motor vehicle. The 
discussion which follows is focused on the impact on Tier 2 motor 
vehicles.
    For hot soak and running loss emissions, E15 should not impact 
compliance with the evaporative emissions standards (see Figures 1 and 
2). Data from the CRC E-77 test programs suggest that there may be some 
correlation between hot soak and running loss \64\ emissions and 
ethanol content, but the impact is small, of questionable statistical 
significance, and may be related to permeation that occurs during the 
testing (see Figures IV.A-1 and 2).
---------------------------------------------------------------------------

    \64\ Running loss emissions measured in the E-77 programs did 
not use the certification cycle. The study was focused on the worst 
case for permeation emissions and therefore used back-to-back LA92 
cycles to increase the tank temperature with more aggressive 
driving. The certification cycle uses the NYCC which has many stops 
and starts, making it more difficult to purge the canister. There 
was no canister breakthrough measured during running loss tests in 
the study, therefore the chart in Figure 2 shows the effects of 
ethanol and RVP on running loss permeation.
[GRAPHIC] [TIFF OMITTED] TN04NO10.002

[[Page 68117]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.003

    The CRC E-77 test programs also support the conclusion that diurnal 
evaporative emissions with E15 are likely to be comparable to those 
with E0 at the same RVP. Testing performed on E0, E10, and E20 shows 
that diurnal emissions are a function of the volatility of the fuel, 
not the ethanol content. As the volatility of the fuel was increased, 
the number of motor vehicles which experienced canister emissions 
breakthrough also increased, with seven of eight Tier 2 motor vehicles 
experiencing canister breakthrough at 10.0 psi RVP. These elevated 
diurnal emissions are not unexpected since the increased volatility of 
10.0 psi versus 9.0 psi fuel results in roughly a 25% increase in 
evaporative vapor generation that must be captured by the canister 
beyond what has been required of manufacturers in motor vehicle 
certification. Almost any canister breakthrough would be enough to 
cause Tier 2 motor vehicles to exceed their evaporative emissions 
standard. However, since these tests were done on a more severe diurnal 
cycle of 65 [deg]F-105 [deg]F (California cycle), as opposed to the 
Federal requirement of 72 [deg]F-96 [deg]F, these test results only 
serve to highlight the concern that fuel with a higher volatility than 
9.0 psi RVP during the summer will lead to motor vehicles exceeding 
their evaporative emissions standard in-use, but do not demonstrate it. 
At the same time, the Agency is also not aware of any data that would 
show that E15 with an RVP greater than 9.0 psi would in fact allow 
motor vehicles to continue to meet their evaporative emissions 
standards. Given this lack of data and the significant potential for 
increased evaporative emissions at higher gasoline volatility levels, 
the E15 waiver can only be considered in the context of E15 that 
maintains the same volatility as required of E0 certification fuel. As 
long as the volatility of the fuel does not exceed 9.0 psi during the 
summer, diurnal emissions from E15 are not anticipated to cause the 
motor vehicles to exceed their evaporative emissions standards. In 
addition to the increased evaporative emissions impacts that would 
result from allowing E15 to have a higher RVP than E0, as discussed in 
section X, EPA interprets CAA section 211(h)(4) as limiting the 1.0 psi 
waiver to gasoline-ethanol blends that contain 10 vol% ethanol, 
including limiting the provision concerning ``deemed to be in full 
compliance'' to the same 10 vol% blends. This interpretation is also 
consistent with how EPA has historically implemented CAA section 
211(h)(4) through 40 CFR 80.27(d), which provides that gasoline-ethanol 
blends that contain at least 9 vol% ethanol and not more than 10 vol% 
ethanol qualify for the 1.0 psi waiver of the applicable RVP standard.
    While the CRC E-77 test programs were extremely valuable in 
assessing diurnal emissions, their primary purpose was to allow the 
quantification and modeling of evaporative permeation emissions 
separate and apart from other evaporative emissions for E0, E10, and 
E20. Some key findings of the test programs were that gasoline-ethanol 
blends can significantly increase permeation emissions compared to pure 
gasoline. However, consistent with the results from the E-65-3 test 
program, it appears that the magnitude of the impact is relatively 
constant across E6, E10, and E20 blends, i.e., no statistically 
significant difference. In other words, permeation emissions are a 
strong function of the presence of ethanol in the gasoline, not a 
strong function of the concentration within the range tested. 
Consequently, results for E15 would be anticipated to be comparable to 
those

[[Page 68118]]

for E10 and E20. The results of the test program also demonstrate the 
effectiveness of the Tier 2 evaporative emissions standards at reducing 
permeation emissions. Based on the test results shown in Figure IV.A-3, 
the additional permeation emissions caused by the ethanol in E15 
relative to results with E0 would appear to add little if anything, 
given the confidence intervals, to the evaporative emissions 
measurements of a Tier 2 motor vehicle operating over the Federal test 
cycle. Given the magnitude of manufacturer's evaporative emissions 
compliance margins for Tier 2 motor vehicles, as shown in Figure IV.A-
4, any increase in permeation due to E15 should not be sufficient to 
cause Tier 2 motor vehicles to exceed their evaporative emission 
standards.
---------------------------------------------------------------------------

    \65\ Permeation here will include some background motor vehicle 
emissions, such as off-gassing from plastic components. The test 
procedure excluded canister breakthrough emissions and any 
refrigerant and methanol windshield washer solvent emissions.
[GRAPHIC] [TIFF OMITTED] TN04NO10.004

[[Page 68119]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.005

    In addition to immediate evaporative emission impacts, Tier 2 motor 
vehicles' evaporative emissions controls systems were designed for 
regular E10 use, and they should be compatible and durable with E15 use 
over the full useful life of the motor vehicle. While they are tested 
for compliance with their applicable evaporative emissions standards on 
E0, these motor vehicles are required to demonstrate durability of the 
evaporative emissions control systems by performing aging with E10; 
therefore, these motor vehicles must demonstrate that they meet their 
evaporative emissions standards over their full useful lives after 
essentially operating exclusively on E10 prior to the certification 
testing. In other words, the seals, connections and other evaporative 
and fuel system hardware must be designed to meet evaporative emissions 
standards over their full useful lives after aging exclusively on E10. 
In addition to designing them for sustained E10 exposure, these designs 
must have sufficient design robustness to encompass production 
variability in materials and tolerances. Robustness in the design of 
these components should provide the safety margin manufacturers target 
for volume production. That same robustness is what we believe should 
allow for durability on E15, and the available test data supports this 
conclusion.
---------------------------------------------------------------------------

    \66\ The two-day evaporative in-use data includes light-duty 
motor vehicles, light-duty trucks, and MDPVs, with the appropriate 
standards for each type of motor vehicle given in Table IV.A-4.
---------------------------------------------------------------------------

    Testing conducted as part of the DOE Catalyst Study supports the 
conclusion that Tier 2 motor vehicle evaporative emissions systems 
should be durable in-use when operating on E15. The program, described 
above in section IV.A.1, did not show any evidence of evaporative 
emissions related problems. The onboard diagnostic monitors on the 
motor vehicles did not set any fault codes for evaporative emission 
system leaks. Furthermore, no physical differences were found between 
the impacts of E15 and E0 on motor vehicle components exposed to fuel 
or fuel vapor during the teardowns of the 12 Tier 2 motor vehicles 
analyzed (six aged on E0 and six aged on E15).\67\ In the same study, 
one of DOE's contractors performed evaporative emission testing on 
eight of the Tier 2 motor vehicles (four aged on E0 and four aged on 
E15) on which they were performing motor vehicle aging and exhaust 
emission deterioration testing. They performed evaporative emission 
tests at the same mileage intervals where they measured exhaust 
emission performance. While this was only a limited sample size, and 
not directly applicable to Federal certification testing due to the 
lower RVP of the test fuels, they did not show any greater 
deterioration in evaporative emission performance over time on E15 
compared to E0 (See Figure IV.A-5). While EPA is aware of another 
ongoing study, AVFL-15, which is looking at the durability of fuel 
system components, our understanding is that it is performing the 
testing on E20 using an atypical, ``aggressive'' ethanol. Consequently, 
while it may provide useful information for the manufacturers in 
designing their motor vehicles for the worst case conditions, it would 
not appear that it would have any bearing on the E15 partial waiver 
decision being made today.
---------------------------------------------------------------------------

    \67\ Technical Summary of DOE Study on E15 Impacts on Tier 2 
Vehicles and Southwest Research Teardown Report. See EPA-HQ-OAR-
2009-0211.

---------------------------------------------------------------------------

[[Page 68120]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.006

     \68\
e. Conclusion
---------------------------------------------------------------------------

    \68\ The vehicles in this study were not aged over standard 
evaporative emissions systems aging protocol but rather underwent 
rapid mileage accumulation. Three vehicles are presented here as the 
fourth vehicle developed a leak and the data was not comparable for 
fuel effects.
---------------------------------------------------------------------------

    In assessing the potential impacts of E15 on evaporative emissions 
in their waiver application, Growth Energy did not draw their 
conclusions by comparing E15 to certification fuel (E0), but rather 
compared E15 to other gasoline-ethanol blends. In addition, Growth 
Energy provided only limited information on whether E15 would cause 
motor vehicles to violate their evaporative emission standards over 
their full useful lives. In fact, they made only a passing reference to 
potential evaporative emissions durability impacts of E15. As a result, 
they did not adequately support their waiver application with respect 
to evaporative emissions, either immediate emission impacts or long-
term durability impacts. However, both evaporative emission testing 
performed in the CRC E-77 test programs (E-77, E-77-2, E-77-2b, E-77-
2c) and limited evaporative emission testing as part of the DOE 
Catalyst Study support the conclusion that as long as E15 meets a 
summertime gasoline volatility level of no higher than 9.0 psi, Tier 2 
motor vehicles are expected to continue to comply with their 
evaporative emission standards over their full useful lives when using 
E15.
4. Materials Compatibility for MY2007 and Newer Light-Duty Motor 
Vehicles
a. Introduction
    Materials compatibility is a key factor in considering a waiver 
request since poor materials compatibility can lead to serious exhaust 
and evaporative emissions compliance problems not only immediately upon 
using the new fuel or fuel additive, but especially over time. In most 
cases one would expect any materials incompatibility to show up in the 
emissions tests, but there may be impacts that do not show up due to 
the way the testing is performed or because the tests simply do not 
capture the effect. As a result, along with emissions testing, 
materials compatibility is a key factor in assessing the emissions 
durability of a fuel or fuel additive. This section discusses materials 
compatibility issues for MY2007 and newer light-duty motor vehicles. 
However, since Growth Energy's submission and information supplied by 
commenters regarding immediate emissions impacts of E15 were not 
specific to the model year of the motor vehicles, this section also 
contains much of the information and discussion on emission impacts on 
older motor vehicles that is further discussed in section IV.C.
b. Growth Energy's Submission
    Growth Energy submitted a series of studies completed by the State 
of Minnesota and the Renewable Fuels Association (RFA) \69\ that 
investigated materials compatibility of motor vehicle engines and 
engine components using three test fuels: E0, E10, and E20 (``Minnesota 
Compatibility Study''). The Minnesota Compatibility Study looked at 19 
metals (``Metals Study''),\70\ eight elastomers (rubber materials) 
(``Elastomers Study''),\71\ eight plastics

[[Page 68121]]

(``Plastics Study''),\72\ and 24 common fuel sending unit and fuel pump 
combinations (``Fuel Pumps Study'' and ``Fuel Pump Endurance 
Study''),73 74 currently used in automotive, marine, small 
engine, and fuel system dispensing equipment for physical or chemical 
effects due to ethanol.\75\ The Compatibility Study concluded that 
``the effects of 20 percent ethanol blended fuels would not present 
problems for current automotive or fuel dispensing equipment.'' While 
much of the data cited by Growth Energy was on E20, they argued that 
because E20 showed comparable performance to E10 or E0, E15 should also 
be comparable by interpolation. In addition, Growth Energy stated that 
materials used to construct motor vehicle fuel systems have been 
certified to industry standards (SAE J1681) that are qualified using 
fuels containing 15% methanol, which is much more aggressive than 
ethanol. Since these standards have been used by the automotive 
industry for the last 15 years, Growth Energy concluded that most motor 
vehicles in use today should have fuel and evaporative systems 
compatible with up to 15% ethanol.
---------------------------------------------------------------------------

    \69\ State of Minnesota and Renewable Fuels Association. The 
Feasibility of 20 Percent Ethanol Blends by Volume as a Motor Fuel, 
EPA Docket EPA-HQ-OAR-2009-0211-0337.
    \70\ ``The Effects of E20 on Metals Used in Automotive Fuel 
System Components;'' Bruce Jones, Gary Mead, Paul Steevens, and Mike 
Timanus; Minnesota Center for Automotive Research at Minnesota State 
University, Mankato; February 22, 2008. EPA Docket EPA-HQ-
OAR-2009-0211-0338.
    \71\ ``The Effects of E20 on Elastomers Used in Automotive Fuel 
System Components;'' Bruce Jones, Gary Mead, Paul Steevens, and 
Chris Connors; Minnesota Center for Automotive Research at Minnesota 
State University, Mankato; February 22, 2008. EPA Docket 
EPA-HQ-OAR-2009-0211-0002.5.
    \72\ ``The Effects of E20 on Plastic Automotive System 
Components;'' Bruce Jones, Gary Mead, and Paul Steevens; Minnesota 
Center for Automotive Research at Minnesota State University, 
Mankato; February 21, 2008. EPA Docket EPA-HQ-OAR-2009-
0211-0002.8.
    \73\ ``The Effects of E20 on Automotive Fuel Pumps and Sending 
Units;'' Nathan Hanson, Thomas Devens, Colin Rohde, Adam Larson, 
Gary Mead, Paul Steevens, and Bruce Jones; Minnesota State 
University, Mankato; February 21, 2008. EPA Docket EPA-HQ-
OAR-2009-0211-0002.28.
    \74\ ``An Examination of Fuel Pumps and Sending Units During a 
4000 Hour Endurance Test in E20;'' Gary Mead, Bruce Jones, Paul 
Steevens, Nathan Hanson, and Joe Harrenstein, Minnesota Center for 
Automotive Research at Minnesota State University, Mankota, March 
25, 2009. EPA Docket EPA-HQ-OAR-2009-0211-2721. Also 
available at http://www.mda.state.mn.us/news/publications/renewable/ethanol/e20endurance.pdf.
    \75\ Effects assessed in the studies include: Pitting, surface 
texture change, discoloration, or loss of mass for metals; 
appearance, volume, weight, tensile strength, elongation, and 
hardness for elastomers; mass loss or gain, volume loss or gain, 
tensile elongation, impact resistance, and tensile strength for 
plastics; and corrosion and longevity as measured by flow and 
pressure tests for pumps and sending units.
---------------------------------------------------------------------------

c. Public Comment Summary
    Commenters responded to Growth Energy's claims by arguing that 
E15's effect on fuel system materials has not been properly studied. 
Many commenters noted that Growth Energy may have selectively excluded 
important findings from the Minnesota Compatibility Study.
    Regarding the Metals Study, some comments noted that 14 out of the 
19 metal samples that were tested exhibited greater than 50% measurable 
mass changes when tested with E20 compared to E10, and if those metals 
had been compared to E0 instead of E10, some mass changes would have 
exceeded 200%. The Alliance stated that such mass changes in metals 
``can be a very noteworthy indication of heavily accelerated corrosive 
effects'' since unprotected metals often accelerate in a non-linear 
fashion.\76\ With respect to specific materials, commenters stated that 
E15 will increase corrosion of terne plate gas tanks which were used in 
light-duty motor vehicles prior to the mid-1990s.
---------------------------------------------------------------------------

    \76\ ``Alliance of Automobile Manufacturers Comments on Clean 
Air Act Waiver Application to Increase the Allowable Ethanol Content 
of Gasoline to 15 Percent, A-22. EPA Docket EPA-HQ-OAR-
2009-0211-2551.1.
---------------------------------------------------------------------------

    The Alliance criticized the Elastomers Study for testing raw 
materials instead of actual fuel system components (such as hoses, 
seals, and diaphragms), and argued that the impacts of mid-level 
gasoline-ethanol blends on raw materials would differ substantially 
from manufactured parts because manufacturers vary the compounds used 
in the construction of fuel system parts. The Alliance commented 
further that most of the materials tested were neither being used nor 
expected to be used in the future. The Alliance also commented that the 
study failed to justify how a 500 hour exposure test period provides 
the ability to predict compatibility of materials. The Alliance added 
that while studies have shown generally acceptable materials 
compatibility with ethanol up to 10 vol% ethanol, higher dosages have 
degraded certain metals, elastomers, plastics, and motor vehicle 
finishes.\77\ The Alliance also commented that many researchers have 
found that the effects of gasoline-ethanol blends on elastomers may be 
non-linear with increasing ethanol content and that a blend containing 
10-25% ethanol may be more harmful to elastomers than E85 or E100.\78\ 
Moreover, the Alliance noted in their comments that over 30 years of 
research has led to the conclusion that concentrations between 15 and 
50% ethanol provide the most challenging environment for elastomers 
compared to other ethanol levels. Regarding specific elastomers, 
commenters stated that E15 will damage fuel system components made of 
nitrile rubber while fluorocarbon elastomers have shown the best 
resistance to swell, tensile strength, and elongation for ethanol 
gasoline blends at 10 vol%.79 80 81
---------------------------------------------------------------------------

    \77\ SAE J1297, revised July 2007, Surface Vehicle Information 
Report, Alternative Fuels.
    \78\ SAE 800786, ``Effects of Mixtures of Gasoline With Methanol 
and With Ethanol on Automotive Elastomers,'' Ismat A. Abu-Isa, 
General Motors Research Laboratory. SAE 2007-01-2738.
    \79\ SAE 800786, ``Effects of Mixtures of Gasoline With Methanol 
and With Ethanol on Automotive Elastomers,'' Ismat A. Abu-Isa, 
General Motors Research Laboratory.
    \80\ SAE 800789, ``The Volume Increase of Fuel Handling Rubbers 
in Gasoline/Alcohol Blends,'' Nersasian, A., Passenger Car Meeting, 
June 9-13, 1980.
    \81\ SAE 912413 ``An Overview of the Technical Implications of 
Methanol and Ethanol as Highway Motor Vehicle Fuels,'' Frank Black, 
U.S. Environmental Protection Agency, Research Triangle Park, NC.
---------------------------------------------------------------------------

    Some commenters also expressed concerns with a particular material, 
polybutlyene terephthalate (PBT), tested in the Plastics Study. The 
Alliance noted that PBT experienced a slight elevation in tensile 
elongation as the percentage of ethanol was increased, and that the 
study was performed at temperatures lower than would be experienced 
under real-world driving conditions. Since materials like PBT undergo a 
chemical transformation when exposed to ethanol, the Alliance argued 
that the elongation effect on PBT would be greater at the elevated 
temperatures found in real-world driving conditions. The Alliance 
concluded that E15 will damage fuel system components made of PBT and 
noted that at least one fuel system supplier used PBT in fuel pump 
modules between model years 1993 and 2004.
    Several comments noted that the sample size for the Fuel Pumps 
Study was too small to draw conclusions about the effects of E20 and 
that the duration of the test program included only a short-term, 
static soak test of 720 hours as opposed to testing periods of at least 
2,000 hours and up to 10,000 hours usually used to validate fuel pump 
designs and materials. Several commenters referred to the materials 
compatibility work in the Orbital Study 82 83 which evaluated the 
effects of E20 on fuel system components for several older model 
Australian passenger vehicles.\84\
---------------------------------------------------------------------------

    \82\ ``Market Barriers to the Uptake of Biofuels Study, A 
Testing Based Assessment to Determine Impacts of a 20% Ethanol 
Gasoline Fuel Blend on the Australian Passenger Vehicle Fleet, 
Report to Environment Australia;'' Orbital Engine Company; March 
2003.
    \83\ ``Market Barriers to the Uptake of Biofuels Study Testing 
Gasoline Containing 20% Ethanol (E20), Phase 2B Final Report to the 
Department of the Environment and Heritage;'' Orbital Engine 
Company; May 2004.
    \84\ Components were selected from three vehicles, the Holden 
1990 VN and 1985 VK Commodore and a 1985 Ford XE Falcon to encompass 
most component types within the Australian passenger car fleet.

---------------------------------------------------------------------------

[[Page 68122]]

d. EPA Analysis
    The Agency is concerned, based on its review of the literature and 
automotive industry comments, that most pre-Tier 2 motor vehicles, 
including Tier 0 vehicles (from the 1980s to 1995) and Tier 1 vehicles 
(from 1996 to 2001), may have been designed for only limited exposure 
to E10 and consequently may have the potential for increased materials 
degradation with the use of E15. This potential for materials 
degradation may make the emissions control and fuel systems more 
susceptible to corrosion and chemical reactions from E15 when compared 
to the certification fuels for these motor vehicles which did not 
contain any ethanol, and therefore may increase motor vehicle 
emissions. For MY2000 and older motor vehicles especially, E15 use may 
result in degradation of metallic and non-metallic components in the 
fuel and evaporative emissions control systems that can lead to highly 
elevated HC emissions from both vapor and liquid leaks. Potential 
problems such as fuel pump corrosion or fuel hose swelling will likely 
be worse with E15 than historically with E10, especially if motor 
vehicles operate exclusively on E15. Since ethanol historically 
comprised a much smaller portion of the fuel supply, in-use experience 
with E10 was often discontinuous or temporary, while material effects 
are time and exposure dependent. Thus, issues may surface with E15 that 
may not have surfaced historically in-use with E10.
    Newer motor vehicles, such as Tier 2 and NLEV vehicles (MY2001 and 
newer), on the other hand, were designed to encounter more regular 
ethanol exposure compared to earlier model year motor vehicles. IUVP, 
introduced under CAP2000, requires manufacturers to perform exhaust and 
evaporative emissions tests on in-use motor vehicles. This emphasis on 
real-world motor vehicle testing prompted manufacturers to consider 
different available fuels when developing and testing their emissions 
systems. Additionally, beginning with Tier 2, the durability 
demonstration procedures required the demonstration of evaporative 
emission system durability on E10. As a result, the materials in Tier 2 
motor vehicles have been able to mitigate the permeation effects of 
ethanol in the fuel, as discussed in section IV.A.2. As a result, our 
engineering analysis would suggest that Tier 2 compliant motor vehicles 
are more likely to be compatible with E15 than older motor vehicles.
    While Growth Energy asserted that 15% methanol was a worst-case 
fuel for E15 materials compatibility purposes, the Agency is not aware 
of any analysis or industry standard practice that confirms that motor 
vehicle materials tested on 15% methanol test fuels will cover 
gasoline-ethanol blends up to 15% for materials compatibility and 
evaporative emissions purposes. SAE J1681 provides specifications and 
formulations for evaluating oxygenates in gasoline, including ethanol, 
on automotive fuel system components.\85\ EPA's evaluation of SAE J1681 
does not reveal that 15% methanol would be the surrogate worst case 
test fuel in evaluating all oxygenates. To the contrary, the fuel 
formulations for aggressive methanol and aggressive ethanol are 
different, as described in Appendix E of SAE J1681. EPA believes this 
difference is to account for contaminants that may be present in these 
two different products during production and/or transportation of each 
product. To properly evaluate the potential worse case impacts of a 
mid-level gasoline-ethanol blend, such as E15, on motor vehicle fuel 
systems components, the Agency believes it would be prudent to use the 
aggressive ethanol fuel formulation provided in Appendix E of SAE 
J1681, to the extent that it reflects E15 according to ethanol content, 
as well as any contaminant, that may be associated with the production 
or transportation of an E15 gasoline product. The Agency notes that SAE 
J1681 includes language describing potential impacts of oxygenates on 
metals (from by-products derived from oxygenates and especially when 
water is present), polymers (including elastomers and plastics), and 
polymer systems (including laminates and multi-layered components).\86\
---------------------------------------------------------------------------

    \85\ SAE J1681, ``Surface Vehicle Recommended Practice, for 
Gasoline, Alcohol and Diesel Fuel Surrogates for Materials 
Testing,'' Issued 1992-09, Revised 2000-01.
    \86\ Ibid.
---------------------------------------------------------------------------

e. Conclusions
    The Agency has reviewed the studies and information submitted by 
Growth Energy, commenters, and other publicly available information to 
further assess the potential materials compatibility performance of 
E15, including the Minnesota Compatibility Studies.\87\ The Minnesota 
studies were on component parts using laboratory bench tests rather 
than durability studies of whole motor vehicle fuel systems simulating 
``real world'' motor vehicle use. Such tests are typically used to 
provide a first level screening of potential materials prior to more 
real-world testing to demonstrate materials compatibility of actual 
vehicle and engine components. In addition, the study admittedly 
assessed only a subset of materials used in motor vehicles and nonroad 
products over the years, and provided no information with which to 
correlate the materials tested with those in use in either the MY2007 
and newer motor vehicles or older motor vehicles and nonroad products. 
Manufacturers have continually modified engine, fuel system, and 
emissions control system materials over the years in response to 
technology needs, in-use fuel quality changes (including E10), and 
emission standards. In many cases, they have incorporated special 
coatings and barriers in existing materials to address problems 
discovered in the field or in emissions testing. Furthermore, as 
commenters point out, there were differences found in the testing for 
some of the materials, which would suggest further testing was 
necessary. Finally, conclusions Growth Energy reached comparing the 
results of some of the materials on E20 to E10 are not helpful in 
assessing the impacts of E15 relative to E0. Consequently, while the 
Minnesota studies are informative, they cannot by themselves be used to 
draw any definitive conclusions. Rather, the conclusion is that actual 
vehicle durability testing is warranted.
---------------------------------------------------------------------------

    \87\ SAE J1297, revised July 2007, Surface Vehicle Information 
Report, Alternative Fuels.
---------------------------------------------------------------------------

    In the case of MY2007 and newer motor vehicles, the Agency believes 
that the DOE Catalyst Study has provided the additional information 
needed. Along with (1) our engineering analysis of the types of changes 
manufacturers have made in response to the Tier 2 motor vehicle 
standards and the rapid rise of E10 use across the nation; (2) the 
limited information available from the Minnesota studies; and (3) the 
lack of any information from commenters showing definitive problems on 
Tier 2 compliant motor vehicles, we believe that the durability testing 
performed by DOE as discussed in section IV.A.1. above is sufficient to 
provide assurance that MY2007 and newer motor vehicles will not exhibit 
any serious materials incompatibility problems with E15. Not only did 
the DOE Catalyst Study not uncover any emissions deterioration problems 
with E15 in comparison to E0, it also did not uncover any material 
differences upon tear-down and inspection of six of the motor vehicle 
pairs tested out to FUL.\88\ Therefore, the Agency does not expect that 
there will

[[Page 68123]]

be materials compatibility issues with E15 that would cause MY2007 and 
newer light-duty motor vehicles to exceed their exhaust or evaporative 
emission standards over their full useful lives.
---------------------------------------------------------------------------

    \88\ Only a difference in intake valve deposits was seen.
---------------------------------------------------------------------------

5. Driveability and Operability for MY2007 and Newer Light-Duty Motor 
Vehicles
a. Introduction
    In past waiver applications before the Agency, driveability and 
general operability of the motor vehicle have not necessarily been 
impacted by the fuel or fuel additive and therefore not significant to 
the decision making process. However, a change in the driveability of a 
motor vehicle that results in significant deviation from normal 
operation (i.e., stalling, hesitation, etc.) can conceivably result in 
unexpected emission increases and should be considered when evaluating 
a fuel or fuel additive. These increases may not be demonstrated in the 
emissions certification test cycles but instead be present during in-
use operation. A motor vehicle stall and subsequent restart can result 
in a significant emissions increase because HC and CO emissions rates 
are typically highest during cold starts. Further, a consumer or 
operator might tamper with the motor vehicle in an attempt to correct 
the driveability by modifying the vehicle from its original certified 
configuration.
b. Growth Energy's Submission
    Growth Energy relies on the Minnesota Driveability Study, the RIT 
Study, the MCAR Study, and the DOE Pilot Study to support their claim 
that ``E-15 will cause no driveability issues'' and will not lead to 
the removal of or the rendering inoperative of emissions control 
devices or systems based on negative performance impacts. Growth Energy 
claims that the RIT Study supports the Minnesota Driveability Study's 
findings by driving 10 motor vehicles with significant mileage (between 
30,000 and 120,000 miles) for over 75,000 miles on E20 under ``real 
world conditions.'' They argue that the RIT Study's drivers did not 
detect any performance degradation and there were no engine or fuel 
part failures that required abnormal maintenance.\89\ Growth Energy 
argues that the MCAR Study, which tested 15 in-use cars and light-duty 
trucks operating on E10 and E30 for a year, showed ``no driveability 
complaints, no reports of cold starting, vapor lock, or hard starting 
conditions, and no reports of hesitation with the E-30 blend of fuel.'' 
\90\ Growth Energy contends that the DOE Pilot Study showed that ``none 
of the vehicles tested displayed a malfunction indicator light as a 
result of the ethanol content, no fuel filter plugging symptoms were 
observed, no cool start problems were observed in 75 [deg]F and 50 
[deg]F laboratory conditions, and no fuel leaks or conspicuous 
degradation of the fuel systems were observed.'' \91\
---------------------------------------------------------------------------

    \89\ In Growth Energy's comments submitted during the E15 public 
notice and comment period, Growth Energy submitted an updated 
summary for the RIT Study. See below for more details.
    \90\ Application For A Waiver Pursuant to Section 211(f)(4) of 
The Clean Air Act For E-15 submitted by Growth Energy on behalf of 
52 United States Ethanol Manufacturers see EPA-HQ-OAR-2009-0211, 33.
    \91\ Application For A Waiver Pursuant to Section 211(f)(4) of 
The Clean Air Act For E-15 submitted by Growth Energy on behalf of 
52 United States Ethanol Manufacturers see EPA-HQ-OAR-2009-0211, 34.
---------------------------------------------------------------------------

    In their application, Growth Energy asserts that the Minnesota 
Driveability Study, the MCAR Study, and the RIT Study demonstrate that 
higher gasoline-ethanol blends do not result in driveability or 
performance problems.
c. Public Comment Summary
    Several commenters mention specific methodological issues with the 
driveability studies included in Growth Energy's waiver request. The 
Alliance pointed out what they believe to be several flaws with the 
Minnesota Driveability Study. First, they noted low response rates for 
the drivers rating operability concerns. Second, the trained drivers 
did not drive motor vehicles back-to-back on E0 and E20, which made 
direct comparison of driveability on E0 to E20 impossible. Third, the 
Alliance argues that many of the batch fuel analyses were suspect, 
casting doubt on the actual fuel properties used in the study. The 
Alliance and others had similar critiques with the MCAR Study and also 
noted that neither the Minnesota Driveability Study nor the MCAR Study 
were peer-reviewed. With regard to the RIT Study, as mentioned 
previously, many commenters point out that the study summary provided 
with Growth Energy's public comments does not provide enough detail to 
conduct a thorough independent analysis, making it difficult to verify 
Growth Energy's claims. The Alliance argues that more testing needs to 
be conducted evaluating how ethanol affects T50 and TV/L in the 
gasoline-ethanol blends containing greater than 10 vol% ethanol.
    Growth Energy responded to these driveability issues in their 
comments by reiterating the arguments made in their E15 waiver 
application and noting that the updated summary of the RIT Study that 
they submitted as part of their comments showed no driveability or 
mechanical problems with approximately 400 motor vehicles driven on E20 
for over 1.5 million miles.
    Commenters also raised questions regarding the sensitivity of the 
OBD system to increased gasoline-ethanol blends and some ongoing 
studies to quantify potential impacts. Honda submitted some limited 
data regarding potential motor vehicle sensitivity to higher gasoline-
ethanol blends. Additionally, at the Mid-Level Ethanol Blends Research 
Coordination Group meeting on May 5, 2010, a presentation was made to 
members regarding possible implications of increased levels of ethanol 
on the vehicle OBD systems \92\. The presentation described the 
findings of the first phase of CRC project E-90 which is intended to 
study the impact of ethanol on OBD systems. Phase 1 of the study was 
designed to investigate differences in the status of vehicle OBD 
monitors and other emissions control information in E10 versus E0 areas 
of the country in an attempt to isolate potential ethanol impacts to 
OBD. Since E15 and E20 are not currently legal fuels for conventional 
motor vehicles (i.e., non-flex fuel vehicles), the study used the 
differences between E0 and E10 to project potential impacts of E15 and 
E20 on the OBD system but did not actually perform any testing on E15 
or E20. Similarly, Honda did not perform any actual testing using E15 
or E20 but instead used the E0 to E10 information, combined with 
potential component tolerance stack-up, to assess risk of having the 
OBD system set a fault and illuminate the malfunction indicator lamp 
(MIL).
---------------------------------------------------------------------------

    \92\ ``E15/E20 Tolerance of In-Use Vehicle OBD-II Systems.'' 
Presentation available at http://www.crcao.com/.
---------------------------------------------------------------------------

d. EPA Analysis
    The Agency understands the concern for driveability and other 
operational issues that could potentially occur with an increase in 
ethanol content. During the initial introduction of ethanol over 30 
years ago, problems with hot fuel handling were encountered due to the 
ethanol boiling in the fuel system, resulting in operational issues 
like stalls, engine hesitations, misfires and vapor lock preventing hot 
restarts. Since the introduction of ethanol, motor vehicles have 
evolved to alleviate these early issues, mainly through fuel system 
design. These changes included the switch to fuel injection with an 
associated increase in the system fuel

[[Page 68124]]

pressure, all of which have worked to reduce the potential for hot fuel 
issues when operating on gasoline-ethanol blends. In fact, E85 capable 
FFVs sold today typically operate at similar or the same fuel pressure 
as their non-FFV counterparts with no reported issues. Due to the 
stringent emission standards requiring precise fuel control, Tier 2 
vehicles have been engineered with the highest fuel pressure systems in 
vehicle history which make them also highly robust at managing 
ethanol's low boiling point. The Agency does not believe that properly 
functioning fuel injected vehicles, particularly Tier 2 vehicles, will 
encounter any new heat related operational issues with an increase in 
ethanol content of the fuel to 15 vol%.
    Driveability issues could also occur from incompatibility between 
E15 and manufacturers' approaches at calibrating a motor vehicle for 
fuels it is expected to encounter in-use. If the error in fuel 
quantity, caused by the fuel properties of E15 (i.e., oxygen content), 
is beyond what the system is designed to compensate for, driveability 
issues (cold start roughness, hesitations) can arise. However, due to 
the large variability found in fuels in the market today which can 
result in similar driveability behaviors, from experience with in-use 
fuels, manufacturers have employed methods to counter or compensate for 
fuel differences and try to prevent these driveability issues. Because 
of the stringent Tier 2 emission standards, Tier 2 vehicles required 
focused attention to cold start fueling to ensure emission compliance 
while tolerating the different fuel blends that the vehicle could 
encounter in-use. This resulted in modification of calibration and 
control strategies by manufacturers to balance the need for precise 
cold start fuel that meet both emission requirements and operate 
properly when fuel properties vary in-use. Because manufacturers 
already calibrate motor vehicles based on their experience with in-use 
fuels, combined with lack of any reported driveability issues in any of 
the E15 and E20 test programs during both laboratory and road testing, 
the Agency believes that properly functioning and maintained motor 
vehicles will not experience an increase in driveability issues when 
operating on a properly blended E15 fuel. Collectively, the RIT Study, 
Minnesota Driveability Study, MCAR Study and a CRC cold start study 
\93\ did not report any fuel related driveability issues demonstrated 
across different E15 and E20 seasonally blended fuels and verified 
during winter, summer and shoulder seasons, supporting the Agency's 
findings.
---------------------------------------------------------------------------

    \93\ CRC Report No. 652, ``2008 CRC Cold-Start and Warm-up E85 
and E15/E20 Driveability Program,'' October 2008.
---------------------------------------------------------------------------

    Motor vehicles produced since approximately 1995 have been equipped 
with OBD systems that monitor all aspects of the exhaust and 
evaporative emissions control system. The Agency recognizes that the 
additional oxygen content in E15 will be identified by the OBD system 
as a shift in the fueling requirements. In some motor vehicles, a shift 
in the fuel requirements beyond predetermined thresholds, based on the 
manufacturer's research, can result in a MIL illumination. However, 
across the many different test programs with different motor vehicles 
and duty cycles, including lab testing, mileage accumulation and in-use 
operation, there were no reported incidences of MIL illumination from 
the use of increased ethanol for both E15 and E20. Based on this, the 
Agency believes that properly functioning (i.e., within component 
tolerances) and maintained motor vehicles will not experience an 
increase in MIL illumination due to the use of E15. However, for a 
vehicle that has a component issue or failure (i.e., intake vacuum 
leak, exhaust leak, etc.) which indirectly effects the same OBD 
monitors as ethanol content, it is possible that the increase in 
ethanol may push the OBD system monitor over the calibrated thresholds 
and cause a MIL illumination.
e. Conclusion
    The Agency has reviewed the studies and information submitted by 
Growth Energy, commenters, as well as other information from the 
emissions and durability test programs to assess the potential for 
driveability and diagnostic issues on Tier 2 motor vehicles (i.e., 
MY2007 and newer). With the exception of ethanol content, fuel 
properties were largely allowed to vary across the different studies 
and test programs (i.e., gasoline blend stocks varied between programs 
and season). This included ethanol blends as high as E30 in the MCAR 
Study and the program with the largest amount of vehicles, the RIT 
study, operating on E20 throughout the year which included summer, 
winter, spring, and fall operation. In these two studies where the 
ethanol levels exceeded E15 and the vehicles were operated in a 
relatively uncontrolled manner (i.e., not driven on a specific duty-
cycle), there were no reported driveability issues or OBD related 
problems on the vehicles.
    The DOE test programs, both the DOE Pilot Study and the DOE 
Catalyst Study, did not report any occurrence of driveability or 
diagnostics issues throughout the testing. For the durability program, 
mileage accumulation on the Tier 2 vehicles occurred at three locations 
including one location at altitude (Denver Colorado). For the mileage 
accumulation, fuels where made by splash blending locally available 
commercial fuels. Vehicle mileage accumulation was performed both on 
mileage accumulation dynamometers and on a track with actual drivers. 
There were no reported driveability issues or OBD related problems 
during the mileage accumulation period on the Tier 2 vehicles at the 
various testing locations.
    The Agency's review of the data and information from the different 
test programs finds no specific reports of driveability, operability or 
OBD issues across many different vehicles and duty cycles including lab 
testing and in-use operation. Thus, while the potential exists for some 
vehicles more sensitive to ethanol to experience driveability or 
operability issues, the frequency is likely not more than what is 
currently experienced in-use today. Therefore, the Agency does not 
anticipate that there will be driveability, operability or OBD issues 
with E15 on properly operating and maintained MY2007 and newer light-
duty motor vehicles.
6. Overall Immediate and Long-Term Emissions Conclusions
    As described in the preceding sections, EPA evaluated Growth 
Energy's submission based on five factors: Long-term exhaust emissions 
impact over time, immediate exhaust emissions impact; immediate and 
long-term evaporative system impacts; the impact of materials 
compatibility on emissions; and the impact of drivability and 
operability on emissions. Based on results from the DOE Catalyst Study 
in particular coupled with our engineering judgment, EPA believes there 
is strong evidence that MY2007 and newer light-duty motor vehicles will 
not exceed their emission standards over their useful life when 
operated on E15. Therefore, EPA is granting the waiver for MY2007 and 
newer light-duty motor vehicles.

B. MY 2001-2006 Light-Duty Motor Vehicles

    EPA is deferring its decision on MY2001-2006 light-duty motor 
vehicles. DOE is in the process of conducting additional catalyst 
durability testing that will provide data regarding MY2001-2006 motor 
vehicles. The DOE testing is scheduled to be completed by November 
2010. The data will be made available to the public.

[[Page 68125]]

EPA will then consider these data and other data and information 
available to make a further determination on the use of E15 in those MY 
motor vehicles.

C. MY2000 and Older Light-Duty Motor Vehicles

    Due to differences in vehicle standards and technology over time 
and in light of the data and information available, the Agency has 
chosen to split consideration of the E15 waiver request into model year 
groupings. This section concerns MY2000 and older light-duty motor 
vehicles.

                    Table IV.C-1--Tier 0 and Tier 1 Emission Standards Phase-in by Model Year
----------------------------------------------------------------------------------------------------------------
                                                                                 Tier 1 Phase-in percentage
                                                        Tier 0            --------------------------------------
                                                                              MY1994       MY1995       MY1996
----------------------------------------------------------------------------------------------------------------
Passenger car.............................  MY1981 and newer*............           40           80          100
Light duty truck 6000 GVW................  MY1990 and newer.............  ...........           50          100
----------------------------------------------------------------------------------------------------------------
* Final diesel particulate standard required came in 1987.

    MY2000 and older light-duty motor vehicles have much less 
sophisticated emissions control systems compared to today's vehicles 
and, as described below, may experience conditions that lead to 
immediate emission increases and may exceed their emission standards if 
operated on E15. Vehicles produced prior to the mid-1980s were equipped 
primarily with carbureted engines. The A/F ratio of the carburetor is 
preset at the factory based on the expected operating conditions of the 
engine such as ambient temperature, atmospheric pressure, speed, and 
load. As a result, carburetors have ``open loop'' fuel control which 
means that the air and fuel are provided at a specified, predetermined 
ratio that is not automatically adjusted during vehicle operation. As 
fuel composition can vary, an engine with a carburetor and open loop 
fuel control would never know if it achieved the desired A/F ratio or 
not. Since the vehicles at this time operated ``open loop'' all of the 
time with no ability to react to changes in the A/F ratio, the addition 
of ethanol to the fuel tended to make the A/F ratio leaner, typically 
resulting in an immediate emission impact of reducing HC and CO 
emissions, but increasing NOX emissions. However, some of 
these older open loop systems already operate at the lean edge of 
combustion on current commercial fuels so an increase in ethanol may 
cause them to begin to misfire resulting in HC and CO increases.
    As a result of the Clean Air Act of 1970, EPA established standards 
and measurement procedures for exhaust, evaporative, and refueling 
emissions of criteria pollutants. From 1975 into the 1980s, vehicles 
became equipped with catalytic converters, first with catalysts capable 
of oxidizing HC and CO, and then, in response to EPA's `Tier 0' 
standards, with three-way catalysts that also reduced NOX. 
With the `Tier 0' standards, closed loop fuel control was required to 
maintain proper fuel air ratio control necessary to achieve high 
conversion efficiency in the three way catalyst. In most vehicles this 
was accomplished through the use of feedback carburetors. Vehicles 
produced from the late 1980s and even more so into the 1990s, as a 
result of more stringent California and Federal standards, evolved to 
incorporate more sophisticated and durable emission control systems. 
These systems generally included an onboard computer, oxygen sensor, 
and early electronic fuel injection with more precise closed loop fuel 
compensation and therefore A/F ratio control during more of the 
engine's operating range. However, even with the use of closed loop 
systems through the late 1990s, the emission control system and 
controls remained fairly simple with a limited range of authority and 
were primarily designed to adjust for component variability (i.e., fuel 
pressure, injectors, etc.) and not for changes in the fuel composition. 
During this period, ethanol was only available in very limited areas of 
the U.S. so the manufacturers' designs of the emission controls and the 
durability of emission control hardware generally did not account for 
the increased oxygen content of ethanol. As a result, this generation 
of vehicles certified to Tier 0 and early Tier 1 emission standards 
experienced immediate emission impacts of ethanol and likely also 
deteriorated at different rates when exposed to ethanol. These designs 
continued to evolve during the early period of the Tier 1 emission 
standards as manufacturers and component suppliers gained experience 
with vehicles in-use. However, the largest improvements to emission 
controls and hardware durability came after 2000 with the introduction 
of several new emission standards and durability requirements forcing 
manufacturers to better account for the implications of in-use fuels on 
the evaporative and exhaust emission control systems.
    The NLEV program for exhaust emissions began Federally with MY2001 
(MY1999 in the northeast trading region within the NLEV program) for 
all cars and light trucks up to 6000 lbs. GVW. This program essentially 
adopted the existing California LEV certified vehicles as a national 
vehicle program. These NLEV vehicles met more stringent emission 
standards for all criteria emissions requiring substantial changes to 
emission control hardware and strategies compared with Tier 1 vehicles. 
The LEV and NLEV programs largely were the start of a migration to 
emission control hardware and strategies resembling future Tier 2 
program approaches (e.g. independent catalyst per bank on V engines). 
Many of the improvements (i.e. catalyst designs, washcoat formulation) 
may have been leveraged by the remaining new Tier 1 vehicles, mainly 
the over 6000 lbs. GVW trucks not required to comply with the NLEV 
standards, but to what degree is unknown.
    The CAP2000 program was implemented for MY2001 and later vehicles. 
The CAP2000 program was designed to place more emphasis on in-use 
performance of vehicle emission controls with vehicles operating 
nationwide on the different available fuels. The IUVP introduced under 
CAP2000 requires manufactures to perform exhaust and evaporative 
emissions tests on customer vehicles. These tests must be performed at 
low and high mileage intervals and include at least one vehicle per 
test group \94\ at 75% of full useful life. This emphasis on real world 
vehicle testing prompted manufacturers to consider different available 
fuels when developing and testing their emissions systems.
---------------------------------------------------------------------------

    \94\ EPA certifies light-duty motor vehicles on a test group 
basis. A test group is a group of vehicles having similar design and 
emission characteristics.

---------------------------------------------------------------------------

[[Page 68126]]

    Under the CAP2000 program, manufacturers are allowed to design 
durability processes that predict in-use deterioration. Prior to 
CAP2000, manufacturers would run traditional durability programs to 
calculate emissions deterioration which generally required that 
vehicles accumulated mileage out to their full useful life under highly 
controlled conditions and fuels. Under the new program with increased 
emphasis on in-use emission levels, manufacturers must confidently 
ensure that their in-use emission deterioration is as predicted.
    The Enhanced Evaporative Emissions requirements were fully phased 
in for light-duty vehicles by 1999. These new requirements included 
both new standards and new test procedures: The 2-day and 3-day diurnal 
tests with new canister loading procedures. In addition, the durability 
demonstration procedures that took effect with the Tier 2 program 
beginning in 2004 required the use of at least the maximum ethanol 
concentration permitted by Federal law that is commercially available 
for the entire service accumulation period.
    Along with the Enhanced Evaporative Emissions requirements, OBD 
requirements for evaporative leak detection monitors were introduced. 
This required vehicles to detect a leak equivalent to .040 inch in the 
fuel or evaporative emissions system. Beginning in 2001, EPA allowed 
manufactures to comply with California OBD regulations, which required 
vehicles to detect a leak equivalent to a .020 inch. While not required 
Federally, many manufacturers developed one leak detection system for 
sale in all 50 States, which complied with the more stringent 
California requirement.
    By MY2004, the SFTP was fully phased in. Additional test procedures 
were developed to better represent the driving habits and conditions 
experienced in actual customer driving. These procedures expanded the 
vehicle testing to include the US06 test, a high speed and high 
acceleration cycle, the SCO3 test, an air conditioning test cycle run 
in an environmental test chamber at 95 [deg]F, and a 20 [deg]F cold 
test run on the FTP cycle. These additional test cycles coupled with 
the in-use testing required under CAP2000 have pushed manufactures to 
develop robust emissions control systems capable of withstanding the 
higher temperatures experienced on these more severe cycles.
    The tightening evaporative emission standards, the durability 
requirement to include prolonged exposure to ethanol in the fuel, the 
CAP2000 requirement to test high mileage in-use vehicles, and the OBD 
leak detection requirement have all combined to compel manufacturers to 
develop more durable evaporative emission systems and focus on testing 
with fuels that would be encountered in customer vehicles, including 
fuels containing ethanol. Thus, MY2000 and older vehicles have not 
benefitted from many of the design changes that MY2007 and newer light-
duty motor vehicles have. Therefore, we do not have the same confidence 
with MY2000 and older light-duty motor vehicles as we do with MY2007 
and newer light-duty motor vehicles with respect to operation on E15.
1. Growth Energy's Submission
    Growth Energy's waiver application covered all model years of motor 
vehicles--they made no specific claims specific to MY2000 and older 
motor vehicles. A summary of Growth Energy's submission with respect to 
the potential impacts of E15 on (1) exhaust emissions, both long-term 
durability and immediate impacts, (2) evaporative emissions, both long-
term durability and immediate impacts, (3) materials compatibility, and 
(4) driveability and operability for MY2007 and newer light-duty motor 
vehicles is discussed in the respective subsections within Section 
IV.A. Since Growth Energy's waiver application was for all model years 
of motor vehicles, the summary of their submission contained in Section 
IV.A is also applicable here for MY2000 and older light-duty motor 
vehicles.
2. Public Comment Summary
    Similar to the broad applicability of Growth Energy's submission, 
the public comments received tended to cover all model years of light-
duty motor vehicles, and the summary of comments received contained in 
section IV.A. is also applicable here. However, the Alliance 
specifically commented that historically, it has taken about 20 years 
for an entire vehicle fleet to turn over, but with current depressed 
sales due to poor economic conditions, the turn-over rate could be 
slower in the near future and that a well-executed study should have a 
test fleet that is proportionally similar to the model years that 
comprise the national fleet. The Alliance argued that the bulk of the 
emissions data cited in Growth Energy's waiver request focus on newer 
(i.e., Tier 2) vehicles and do not adequately represent the national 
vehicle fleet and that these older vehicles may be more sensitive to 
the effects of higher ethanol blends and constitute a greater portion 
of the number of vehicles currently in use. Specifically the Alliance 
commented that the DOE Pilot Study presents data from R. L. Polk 
describing the U.S. fleet but did not select the vehicles to 
statistically represent that fleet. The study included no Tier 0 
vehicles, for example, and the selected test vehicles did not 
proportionally represent the vehicles in the Polk table. The test 
program generally ignored pre-1999 motor vehicles, even though they 
will continue to be a large portion of the legacy fleet for many years. 
These older motor vehicles are most likely to have operational and 
emissions issues with E15 and E20.
    The Alliance also commented that many years of automaker experience 
with developing and producing vehicles capable of using E22, E85 and 
E100 fuels have shown that engines need to be hardened for resistance 
to ethanol. Use of ethanol blends in unhardened engines can result in 
bore, ring, piston and valve seat wear. Deterioration of these 
components can lead to compression and power loss, misfire and catalyst 
damage
    Finally, EPA recently received a report by Ricardo \95\ 
commissioned by the Renewable Fuels Association specifically discussing 
the potential impacts of E15 on MY2000 and older light-duty motor 
vehicles. This report's conclusions stated that:
---------------------------------------------------------------------------

    \95\ Ricardo Inc., Technical Assessment of the Feasibility of 
introducing E15 Blended Fuel in U.S. Vehicle Fleet, 1994 to 2000 
Model Years, 10 September, 2010. EPA Docket EPA-HQ-OAR-
2009-0211-14007.1.

    ``While performing an engineering assessment on a fleet of such 
magnitude as the current U.S. motor vehicle fleet, it was necessary 
to make certain assumptions and approximations to allow an overall 
assessment to be made. Due to this unavoidable circumstance, there 
are certain exceptions to the overall findings of this study which 
may occur in the field due to unpredictable conditions outside the 
scope of normal operation. Without investigating each and every 
vehicle in the fleet individually for its reaction to an E15 fuel 
blend, there cannot be 100% certainty that some vehicles will not 
observe adverse effects from the use of E15. However, using 
statistical analysis, the fleet was reduced to a more manageable and 
representative collection of platforms and manufacturers. The 
vehicles arising from this methodology were evaluated and served as 
representative vehicles for the time period.
    The effect of E15 on various vehicle systems were assessed for 
vehicles in the 1994 to 2000 MY time period. Overall, moving from 
the use of E10 to E15 in the current U.S. light vehicle fleet is 
seen as a low risk from an engineering analysis perspective. While 
certain risks do remain, they are manageable and exist in vehicles 
that are outside the normal bounds of ``standard'' vehicles in the 
1994 to 2000 MY timeframe.''

[[Page 68127]]

3. EPA Analysis and Conclusion
a. Scope of MY2000 and Older Data to Support a Waiver Decision
    As highlighted by the Alliance in their comments, Growth Energy did 
not provide information to broadly assess the emission performance of 
E15 in all motor vehicles in the in-use fleet, and this is particularly 
true of MY2000 and older motor vehicles. Furthermore, there are 
important differences in design between the MY2000 and older and MY2007 
and newer (Tier 2) vehicles that makes it impossible to simply rely on 
data collected on more recent model year vehicles.
    Growth Energy did make reference to the RIT and MCAR studies which 
included some vehicles from MY2000 and older. However, as discussed in 
section IV.A, these studies have the following limitations: The 
vehicles tested in these studies do not fully represent the MY2000 and 
older fleet. The RIT study only performed emissions testing on 2 
vehicles from MY2000 and older and the mileage accumulated on E20 for 
each vehicle was far less than the 120,000 mile FUL. Since the MCAR 
study did not use Federal test procedures it would be difficult to 
determine compliance to Federal emissions standards. Therefore, it is 
not possible to draw adequate conclusions concerning the potential 
impacts of E15 on the emission performance of MY2000 and older vehicles 
from these studies.
    The Agency is not aware of any other information that would allow 
us to fully assess the potential impacts of E15 on the emission 
performance of MY2000 and older vehicles. The recently released Ricardo 
study, despite its focus on MY1994-2000 motor vehicles, does little to 
change this understanding. EPA believes that the Ricardo study offers 
little additional data and information with which to assess the 
emissions effect of E15 on MY2000 and older motor vehicles. First and 
most importantly, Ricardo did not perform any emissions or durability 
testing of E15 on MY2000 and older light-duty motor vehicles. Rather, 
they conducted a literature search of existing data and information 
already cited by Growth Energy, commenters, or otherwise available to 
the Agency, and simply focused their discussion on MY1994-2000 vehicles 
instead of all MY2000 and earlier vehicles. Second, the only new data 
and information provided in the Ricardo study was their visible 
inspection of fuel system components from 11 MY1994-2000 motor vehicles 
that were evaluated for any visible signs of material compatibility or 
durability issues. The fuel systems were collected from a reclamation 
service in Southeast Michigan (Southeast Michigan has had varying 
levels of E10 market penetration over the years). However, as the 
authors acknowledge, since no vehicle history records were available to 
indicate to what extent the fuel systems may have been exposed to E10, 
if at all, during their lifetimes, it is impossible to draw any 
definitive conclusions regarding the effects of ethanol on these 
components. Finally, the authors did not draw any conclusions as to the 
potential impacts of E15 relative to E0. The authors only concluded 
that ``The analysis concluded that the adoption and use of E15 would 
not adversely affect fuel system components in properly engineered 
vehicles, nor would it cause then to perform in a sub-optimal manner, 
when compared to the use of E10.''
    In addition to the paucity of data on MY2000 and older motor 
vehicles, as discussed below, there are reasons for concern with the 
use of E15 in these motor vehicles, particularly with respect to long-
term exhaust and evaporative emissions durability. This makes it 
difficult to rely on an engineering assessment and makes the need for 
actual emissions data critical.
b. Exhaust Emissions--Long-Term Durability
i. General Tailpipe Emissions Durability Concerns
    Ethanol enleans the A/F ratio, which leads to increased exhaust gas 
temperatures and therefore potentially incremental deterioration of 
emission control hardware and performance. Over time, the enleanment 
caused by ethanol has the potential to cause catalyst failure. This 
effect of E15 and the use of closed loop fuel trim to mitigate the 
effect are discussed in more detail in section IV.A.1.c.i above.
    The A/F ratio of the carburetor is preset at the factory based on 
the expected operating conditions of the engine such as ambient 
temperature, atmospheric pressure, speed, and load. As a result, 
carburetors have ``open loop'' fuel control, which means that the air 
and fuel are provided at a specified, predetermined ratio that is not 
automatically adjusted during vehicle operation. As fuel composition 
can vary, an engine with a carburetor and open loop fuel control would 
never know if it achieved the desired A/F ratio or not. Since the 
vehicles at this time operated ``open loop'' all of the time with no 
ability to react to changes in the A/F ratio, the addition of ethanol 
to the fuel tended to make the A/F ratio leaner. This leaner operation 
could increase catalyst temperature and therefore increase the 
emissions deterioration rate.
    For MY2000 and older light-duty motor vehicles, which are capable 
of operating with closed loop fuel control, the fuel trim range is 
generally more limited than the range for newer vehicles, and these 
vehicles may use their full range of fuel trim adjustment to account 
for normal component deterioration. Injectors, sensors and changes to 
fuel pressure may shift with time and aging to use all of the fuel 
trim's range of adjustment. The additional oxygenate in E15 may 
actually shift the A/F ratio more than the earlier introduction of E10 
if the engine's A/F feedback cannot compensate because it has reached 
its adjustment limit. In short, MY2000 and older motor vehicles and 
earlier are at risk of having insufficient thermal margins to 
accommodate ethanol blends up to E15 due to the limits of their fuel 
trim authority.
    There is very little test data on the use of E15 in older vehicles 
but the concern is more than just theoretical. Three studies--the CRC 
Screening Study, DOE Pilot Study, and the Orbital Study--discussed in 
section IV.A. highlight in particular the concern with MY2000 and older 
motor vehicles. The CRC Screening Study (E-87-1) was a test program 
developed to look at the effects of mid-level ethanol blends on U.S. 
vehicles. This screening study was the first phase of a two-phase study 
evaluating the effects of mid-level ethanol blends on emission control 
systems. The purpose of this first phase of the study was to identify 
vehicles which used learned fuel trims to correct open loop air-fuel 
rations. Under the test program a fleet of 25 test vehicles was 
identified and acquired with six of those vehicles being MY2000 and 
older. The study collected vehicle speed, oxygen sensor air-fuel-ratio, 
and catalyst temperature data for four fuels (E0, E10, E15, and E20). 
The results of the three ethanol blended fuels compared to E0 showed 
that four of the six MY2000 and older vehicles tested failed to apply 
long-term fuel trim to open loop operation in order to compensate for 
increasing ethanol levels. And that these same four vehicles exhibited 
increased catalyst temperatures when operated on E20 as compared to E0. 
While the subsequent DOE Catalyst Study concluded that this learned 
fuel trim was not important for MY2007 and newer motor vehicles because 
they are durable (and therefore can handle E15) as discussed in section 
IV.A, there was no such follow on program for MY2000 and older motor 
vehicles so the

[[Page 68128]]

durability of these vehicles on E15 is unknown.
    Another study suggests that many MY2000 and older motor vehicles 
may also have emission exceedances if operated on E15. In 2003, the 
Orbital Engine Company issued a report on the findings of vehicle 
testing it completed to assess the impact of E20 on the Australian 
passenger vehicle fleet. While the Australian vehicles in this study 
were not representative of U.S. vehicles of the same model years, they 
are similar to MY2000 and older U.S. motor vehicles with respect to 
technology and emission standards. The testing program covered vehicle 
performance and operability testing, vehicle durability testing, and 
component material compatibility testing, on nine different vehicle 
makes or models, five vehicles from MY2001 and four vehicles from 
MY1985 to MY1993. Testing results showed increases in exhaust gas 
temperature in five of the nine vehicles tested with three showing 
increases in catalyst temperature. Enleanment was found to occur in six 
of the nine vehicles tested, with three having closed loop control--the 
old vehicles without closed loop control all displayed enleanment. In 
general, the increase in exhaust gas temperature was found to follow 
those vehicles with enleanment. Furthermore, one vehicle in the study 
experienced catalyst degradation sufficient to make the tested vehicle 
no longer meet its applicable Australian emission standards.
    Hence, based on this very limited test data and our engineering 
judgment, we can conclude that MY2000 and older motor vehicles have the 
potential to experience conditions when operated on E15 which may 
ultimately lead to an increase in exhaust emissions. Specifically, 
enleanment followed by higher exhaust temperatures could cause 
accelerated catalyst deterioration. Furthermore, there are potential 
concerns other than just catalyst durability for these older vehicles, 
as highlighted by the Alliance in their comments. Absent actual 
emissions durability testing, it is not possible to know the validity 
of these emissions concerns with E15 in MY2000 and older motor 
vehicles. Unlike for MY2007 and newer motor vehicles we are not aware 
of any existing test program which can address the lack of data 
concerning MY2000 and older motor vehicles.
ii. Immediate Exhaust Emission Impacts
    Growth Energy claims that the ACE Study, the RIT Study, the MCAR 
Study, and the DOE Pilot Study show that E15 results in decreased 
emissions of NOX, NMHC, and CO on average, and no increase 
in NMOG emissions when compared to E0. Growth Energy argues that these 
studies demonstrate E15 will not cause or contribute to the failure of 
vehicles to meet their emissions standards. While much of the data 
cited by Growth Energy was on E20, they argued that because the studies 
they submitted with their application show favorable emissions 
performance on blends that contained higher than 15% ethanol (i.e. 
E20), those results should be applicable to E15 by interpolation.
    As discussed in IV.A.1, the ACE study, RIT Study, and MCAR Studies 
offer little value in assessing the impact of E15 on immediate exhaust 
emissions. Since the DOE Pilot Study focused only on motor vehicles 
newer than MY2000, Growth Energy provided very little information of 
value in assessing the immediate exhaust emission impacts of E15. 
Furthermore, very little data has been collected on E15 on MY2000 and 
older vehicles. However, also as discussed in section IV.A.1.b., the 
Agency believes that there is sufficient data on older vehicles to 
quantify the immediate emission impacts of E10 on older vehicles and 
furthermore sufficient data from testing E15 primarily on newer 
vehicles to have a reasonable projection of what the immediate emission 
impacts of E15 are likely to be on MY2000 and older vehicles. 
Specifically, as discussed in section IV.A.1.b., EPA would anticipate, 
that the immediate emission impact of E15 will be similar for both 
older vehicles and MY2007 and newer vehicles--to decrease NMOG (as well 
as NMHC and total HC) and CO emissions and to increase NOX 
emissions, with increases in NOX in the range of 5-10%. The 
importance of this NOX increase is a function of what the 
durability impacts might be, since they must be taken into 
consideration together when evaluating potential impacts on compliance 
with emissions standards.
c. Evaporative Emissions
    Much of the discussion in section IV.A.2 applies to MY2000 and 
older motor vehicles. However it is important to note that this group 
of vehicles has several key differences.
    First, the majority of these vehicles were designed and built prior 
to the enhanced evaporative emissions requirements. These vehicles were 
tested using the 1-hour diurnal plus hot soak procedure only. The CRC 
E-77 test programs showed that permeation emissions are considerably 
higher on pre-Tier 2 motor vehicles than on Tier 2 motor vehicles. 
Therefore it is expected that permeation emissions with E15 on MY2000 
and older motor vehicles will be much higher than that discussed in 
section IV.A.3. for MY2007 and newer motor vehicles. However, given 
that the evaporative emission standards that applied to MY1998 and 
older motor vehicles (pre-enhanced evaporative emission control 
standards), used only a 1-hour diurnal test, the increased permeation 
emissions would not show up appreciably in the certification testing 
and could not cause motor vehicles to exceed the emission standard.
    Second, the MY2000 and older motor vehicles were not required to 
demonstrate evaporative emissions durability with fuels containing 
ethanol. Furthermore, E10 had a limited market share during the time 
when many of these motor vehicles were designed and built. This raises 
the concern that the fuel and evaporative emissions system components 
may not have been designed for constant exposure to E10, and especially 
not E15. These older motor vehicles could experience significant 
material compatibility issues (as discussed below) that could lead to 
elevated evaporative emissions over time or both fuel and vapor leaks. 
Thus, while the immediate evaporative emission impacts of E15 may not 
be a waiver concern, evaporative emission durability would be a primary 
concern for MY2000 and older motor vehicles. Finally, these motor 
vehicles were not subject to OBD leak detection, so if problems did 
occur there would be no OBD warning for the vehicle owner.
d. Materials Compatibility
    The Agency has reviewed the studies that have shown generally 
acceptable materials compatibility in newer motor vehicles (i.e. Tier 2 
motor vehicles) with ethanol up to 10% by volume, but degradation of 
certain metals, elastomers, plastics, and vehicle finishes with higher 
dosages.\96\ However, most of these studies, including the Minnesota 
Compatibility Study, were on component parts using laboratory bench 
tests rather than durability studies of whole vehicle fuel systems 
simulating ``real world'' vehicle use. In addition, there is no way to 
correlate the results of the study with MY2000 and older motor 
vehicles. Many different materials were used over the years and we do 
not have data that shows which manufacturers used which specific 
materials at various points in time. We can conclude, however, that 
some portion of the fleet may experience changes that could result in

[[Page 68129]]

accelerated component failures beyond what would be expected on E0 or 
E10. We are especially concerned that older motor vehicles may not have 
been designed to accommodate ethanol blends.
---------------------------------------------------------------------------

    \96\ SAE J1297, revised July, 2007, Surface Vehicle Information 
Report, Alternative Fuels.
---------------------------------------------------------------------------

    The Agency believes, based on its review of the literature and 
automotive industry comments, that a number of pre-Tier 2 motor 
vehicles, including Tier 0 motor vehicles (from the 1980s to 1995) and 
Tier 1 motor vehicles (from 1996 to 2001), may have been designed for 
only limited exposure to E10 and consequently may have the potential 
for increased material degradation with the use of E15 even though they 
are beyond their useful life requirements. This potential for material 
degradation may make the emissions control and fuel systems more 
susceptible to corrosion and chemical reactions from E15 when compared 
to the certification fuels for these motor vehicles which did not 
contain any ethanol, and therefore may increase vehicle emissions. For 
MY2000 and older motor vehicles, especially, E15 use may result in 
degradation of metallic and non-metallic components in the fuel and 
evaporative emissions control systems that can lead to highly elevated 
hydrocarbon emissions from both vapor and liquid leaks. Potential 
problems such as fuel pump corrosion or fuel hose swelling will likely 
be worse with E15 than historically with E10, especially if motor 
vehicles operate exclusively on it. Since ethanol historically 
comprised a much smaller portion of the fuel supply, in-use experience 
with E10 was often discontinuous or temporary, while material effects 
are time and exposure dependent. Thus, issues may surface with E15 that 
have not surfaced historically in-use.
    The authors of the Ricardo study acknowledge that ``Many materials 
have been used in the fuel systems of light duty motor vehicles, small 
engines, and off-road equipment. Limiting the scope to light duty motor 
vehicles, including passenger cars and light trucks, from the target 
range of model years (1994 to 2000) it is impractical to complete a 
comprehensive survey of the materials that might be exposed to liquid 
fuels.'' This highlights the concern that older motor vehicles could 
experience significant material compatibility issues.
e. Driveability and Operability for MY2000 and Older Light-Duty Motor 
Vehicles
    Very little test data was submitted regarding driveability and 
general operability of MY2000 and older light-duty motor vehicles 
operating on E15. However as discussed in the MY2007 and newer light-
duty motor vehicle analysis, past issues with driveability and 
operability of older technology fuel controls have been observed with 
fuels containing ethanol. Hence, absent data to prove otherwise, there 
is uncertainty regarding the ability of MY2000 and older motor vehicles 
to handle E15. We have concerns that these motor vehicles could 
experience driveability and operability issues that may also lead to an 
emissions increase.
f. Conclusions
    It is the burden of the applicant to demonstrate that any new fuel 
or fuel additive that requires a waiver under CAA section 211(f)(4) of 
the substantially similar prohibition in CAA section 211(f)(1) will not 
cause or contribute to the failure of motor vehicles to meet their 
emissions standards over the vehicles' full useful life. Growth Energy 
has not made this demonstration for MY2000 and older light-duty motor 
vehicles as Growth Energy has not provided sufficient data and 
information to broadly assess the performance of these motor vehicles 
while using E15. Additionally, based on our own engineering judgment 
after review of all available data and information for MY2000 and older 
light-duty motor vehicles, we find that there are concerns about 
potential emissions increases with the use of E15 in these vehicles, 
particularly regarding long-term exhaust and evaporative emissions 
(durability) impacts and materials compatibility. Therefore, the Agency 
has concluded that it cannot grant a waiver for the use of E15 in 
MY2000 and older light-duty motor vehicles based on existing data.

V. Nonroad Engines and Equipment (Nonroad Products)

A. Introduction

    Past waiver decisions were made solely on the basis of the emission 
impacts of the fuel or fuel additive on motor vehicles. However, with 
the passage of the Energy Independence and Security Act of 2007, CAA 
section 211(f)(4) was expanded to require that the emissions impacts on 
nonroad engines and nonroad vehicles (collectively referred to as 
nonroad products in this section) also be taken into consideration when 
reviewing a waiver application. Nonroad products for the following 
discussion is defined as those nonroad products that contain spark-
ignition engines and are used to power such nonroad vehicles and 
equipment as boats, snowmobiles, generators, lawnmowers, forklifts, 
ATVs, and many other similar products. These nonroad products are 
typically used only seasonally and occasionally during the season which 
is very different from the daily use of automobiles. Due to the 
seasonal and occasional use, consumers can hold onto and use their 
nonroad products over decades with some being 30 or 40 years old. 
Nonroad engines are typically more basic in their engine design and 
control than engines and emissions control systems used in light-duty 
motor vehicles, and commonly have carbureted fuel systems (open loop) 
and air cooling (extra fuel is used in combustion to help control 
combustion and exhaust temperatures).
    EPA received authority to regulate emissions from nonroad products 
with the Clean Air Act Amendments of 1990. Through a series of 
subsequent rulemakings, EPA has promulgated exhaust emission standards 
for the categories of new nonroad engines that use motor vehicle 
gasoline: (1) Small spark-ignition engines, (2) large spark-ignition 
engines, (3) marine spark ignition engines, and (4) recreational 
engines. Evaporative emission standards (tank permeation, hose 
permeation, diurnal and running loss) have been promulgated on a 
portion of the nonroad products in these categories. Thus, like for 
motor vehicles, EPA's emissions impact analysis for nonroad products 
concentrates on the following four major areas: (1) Exhaust emissions, 
both immediate and longer-term durability, (2) evaporative emissions, 
both immediate and long-term; (3) materials compatibility, and (4) 
driveability.
    The following table summarizes the various nonroad products and 
their applicable emissions standards. The current standards are to be 
met after a period of engine aging which is done on either a 
dynamometer or chassis per regulation requirements per nonroad sector.

[[Page 68130]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.007

[[Page 68131]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.008

    Typical emission control strategies for nonroad products include 
enleanment and engine redesign with some limited number of nonroad 
products adding catalysts. A limited number of nonroad products have 
also incorporated electronic fuel injection; however the vast majority 
of all nonroad products still use open loop fuel systems (either 
carbureted or fuel injected) and hence do not adjust automatically for 
oxygenated fuel. The result of all this is that there is a broad range 
of nonroad engine and equipment designs across the nonroad sector, 
making it difficult to apply data or conclusions from one nonroad 
product broadly. For example, the following list shows the various 
trends in design changes in nonroad engines due to emission 
regulations.
---------------------------------------------------------------------------

    \97\ On-highway motorcycles have separate emissions standards 
and minimum useful life requirements, which may be found in 40 CFR 
Part 86 Subpart E.
---------------------------------------------------------------------------

     Small spark-ignition Class I and Class II (nonhandheld) 
engines are typically open loop carbureted 4-stroke, side valve or 
overhead valve design, air and fuel cooled engines. Engine 
manufacturers have incorporated changes to the engine designs 
(improving combustion chamber design, adding valve guides, improving 
cooling, etc.), incorporated catalysts on some models and enleaned 
engine operating A/F ratios from past richer operation approaches.

[[Page 68132]]

     Small spark-ignition Class III-Class V (handheld) engines 
are typically open loop carbureted 2-stroke,air and fuel cooled 
engines. Engine manufacturers have incorporated changes to the 2 stroke 
engine designs including reduced scavenging, lean out the A/F ratio, 
from past richer operation approaches, and catalysts (on some models). 
Some manufacturers have switched to 4-stroke design or mixed (2- and 4-
stroke) design where the application allows.
     Large Spark Ignition Engines are typically retrofitted 
automobile engines and a number of them do run on motor vehicle 
gasoline. These engines are water cooled and run feedback electronic 
controls much like their automotive equivalent.
     Marine outboard and personal watercraft engines were 
typically open loop carbureted 2 stroke engines. Today these engines 
are typically open loop 4-stroke engines or direct injected 2-stroke 
engines. Engines are water cooled.
     Marine sterndrive/inboard engines are typically open loop 
4-stroke carbureted or electronic fuel injection and emission 
regulations in 2010 are expected to result in catalysts on sterndrive/
inboard engines and possibly closed loop electronic fuel injection. 
Engines are water cooled.
     Off-highway motorcycles and ATVs have typically been open 
loop carbureted 2-stroke and 4-stroke engines but are becoming more 4-
stroke design with some fuel injection. These engines are typically air 
and fuel cooled.
     Snowmobile engines have typically been open loop 
carbureted 2-stroke engines but have recently started to migrate 
towards fuel injection and even some 4-stroke engines.

B. Growth Energy Submission

    Growth Energy provided only limited information in support of their 
waiver request application regarding the potential emission impacts of 
E15 on nonroad products. For addressing the potential long-term exhaust 
emission (durability) impacts, Growth Energy refers to a single study 
of ethanol blend use in nonroad engines: the DOE Pilot Study. Growth 
Energy states in its application that the DOE Pilot Study compared 
regulated emission levels from a comprehensive and nationally 
representative fleet of 28 small nonroad engines (SNREs), and that the 
DOE Pilot Study showed that regulated emissions were no worse for E15 
and E20 when compared with E0. Growth Energy argues that the DOE Pilot 
Study demonstrates that E15 will not cause or contribute to nonroad 
engines failing to meet emissions standards.
    For addressing immediate exhaust emission impacts, Growth Energy 
referenced a 1999 SAE report, ``The Effect of High Ethanol Blends on 
Emissions from Small Utility Engines.'' \98\ The study conducted 
emissions testing on three MY1994 small (12.5 hp) engines using SAE and 
EPA procedures. Ethanol was splash blended with a commercial RBOB to 
produce E0, E10, E25, and E50. The small engine set included two 12.5-
hp (9.3 kW gross rating) Briggs & Stratton side-valve engines, and one 
12.5-hp Kohler overhead-valve engine. The engines started out running 
rich on E0, but became leaner with increasing ethanol content. As the 
ethanol concentration increased, HC and CO emissions decreased, and 
NOX emissions increased. The emissions results were fully 
consistent with the observed stoichiometries. Because NOX is 
regulated by standards for HC+NOX, from a regulatory 
perspective, the overall emission performance was relatively unaffected 
by the changes in ethanol content. Growth Energy claims this study 
demonstrates that E15 should not have any impact on HC+NOX 
emissions.
---------------------------------------------------------------------------

    \98\ Bresenham, D. and Reisel, J. ``The Effect of High Ethanol 
Blends on Emissions from Small Utility Engines,'' SAE 1999-01-3345, 
JSAE 9938100, 1999.
---------------------------------------------------------------------------

    Growth Energy did not submit any test data that evaluated how the 
use of E15 would impact evaporative emissions and evaporative emissions 
controls for nonroad products, either for immediate emission impacts or 
long-term evaporative emission impacts (durability).
    They did, however, cite the Minnesota Compatibility Study to 
address potential materials compatibility concerns with E15; materials 
compatibility issues could also lead to evaporative (short-term 
permeation or long-term durability) as well as long-term exhaust 
emission impacts. Growth Energy suggests that the Minnesota 
Compatibility Study tested commonly used materials in the construction 
of nonroad engines and that the DOE Pilot Study concluded that ``no 
obvious materials compatibility issues were observed during [the] 
testing'' of SNREs.\99\ Growth Energy argues that the Minnesota 
Compatibility Study demonstrates that SNREs should experience no 
significant materials compatibility problems with E15.
---------------------------------------------------------------------------

    \99\ EPA Docket Number: EPA-HQ-OAR-2009-0211-0002.6: Growth 
Energy Application, 34.
---------------------------------------------------------------------------

    Growth Energy did not provide any data or information quantifying 
the potential impacts of E15 on the operability or driveability of 
nonroad products. Instead, they pointed to the DOE Pilot Study 
discussed above which evaluated long-term emission performance of 
SNREs. Growth Energy claims that the DOE Pilot Study demonstrates that 
the use of E15 will not have a discernable impact on the performance 
and operability of SNREs. They stated that since the DOE Pilot Study 
shows that the engine performance of SNREs varies considerably 
regardless of fuel type used that it is not possible to isolate the 
effects of ethanol on the operability of SNREs.\100\
---------------------------------------------------------------------------

    \100\ EPA Docket Number: EPA-HQ-OAR-2009-0211-0002.6:. Growth 
Energy Application, 34.
---------------------------------------------------------------------------

    In their comments, Growth Energy wrote that there ``is no 
scientific basis'' for excluding SNREs in a waiver for E15, and further 
states that the DOE Pilot Study ``found no statistically significant 
impact on operations from higher-blend ethanol, including E-15.'' 
Growth Energy also argues that there are no studies that show that E15 
will create problems for nonroad engines (marine engines specifically).

C. Public Comment Summary

    AllSAFE and several other commenters argued that the DOE Pilot 
Study's test program is too small and unrepresentative of the national 
SNRE population. The commenters pointed out that the DOE Pilot Study 
only looked at 10 different small spark ignited engines X 
emissions. Exhaust emission testing results on the engine showed a 
decrease of approximately 32% in HC emissions and an 133% increase in 
NOX emissions using E20 when compared to E0, which resulted 
in 10.5% increase in HC+NOX emissions. \103\
---------------------------------------------------------------------------

    \103\ HC reduction estimated from graph while NoX and 
HC+NOX changes were stated in the report.
---------------------------------------------------------------------------

    Many commenters contend that use of E15 in nonroad products causes 
material compatibility concerns and necessitates further investigation 
into the impacts of the use of E15 in nonroad engines. Commenters point 
to two additional studies not cited in Growth Energy's waiver 
application: (1) An Orbital Study; and, (2) the Briggs and Stratton 
Study. The Orbital Study is a separate nonroad product study (i.e.: 
separate from the Orbital Study on Australian motor vehicles), that 
conducted 2,000-hour bench testing with E20 on materials from the fuel 
systems of a Mercury 15hp Marine Outboard engine and a Stihl F45R Line 
Trimmer (``Orbital Nonroad Products Study''). The Orbital Nonroad 
Product Study found that E20 caused severe corrosion, rusting and 
pitting of metallic and brass components, such as the carburetor body 
and throttle, piston rings, crankshaft seal housing, crankshaft 
bearings and surfaces, connecting rod, cylinder liner, throttle blades. 
The study also found that E20 caused swelling, distortion and 
degradation of the fuel delivery hose, fuel primer bulbs, fuel line 
connector, and crankshaft seal. The Orbital Nonroad Products Study 
concluded that these problems would likely cause: (1) Oxides that may 
dislodge and damage the engine; (2) the loss of intended fuel-air 
metering and control, and (3) fuel leakage.
    The Briggs and Stratton Study submitted in Exhibit C of the AllSAFE 
comments contains evaluations of the impacts of E20 on EPA-certified 
engines through soaking fuel components \104\ and this report was cited 
by other commenters. After six months of soaking, the study showed 5-
10% greater swelling and mass gained by gaskets and rubber parts for 
parts soaked in E20 compared to E0. The epoxy for the Welsch plug, a 
plug placed over the progression holes in the carburetor body, 
dissolved in E20 and coated the plug. In a running engine, that could 
result in the plug falling out and fuel leaking from the carburetor, 
resulting in a potential increase in evaporative emissions. The inlet 
needle seats and the fuel cap gaskets swelled, which could also lead to 
increases in evaporative emissions. Garden tractor fuel tank caps and 
seals ``exhibited extreme swelling'' in E20 versus E0.\105\ AllSAFE 
argues that these conclusions corroborate the Orbital Nonroad Products 
Study's findings and highlight the need for additional research into 
E15's effects on the materials used in SNREs and other nonroad 
products.
---------------------------------------------------------------------------

    \104\ The Briggs and Stratton Study stated ``A fuel soak test 
was performed on all parts that come into direct contact with the 
fuel. These parts include carburetor bodies of zinc and aluminum, 
brass fuel metering jets, rubber and fiber gaskets, rubber primer 
bulbs, floats, and fuel bowls.'' No engine was specifically 
mentioned.
    \105\ It was not clear exactly what parts were used for the fuel 
soaking tests. It was stated in the study that a 6.0 HP Quantum 
engine was used, specifically ``engine 123K02 0239E1 04061458 was 
used for all testing except exhaust emissions.'' However, it was 
stated that ``parts'' were soaked, not an engine.
---------------------------------------------------------------------------

    AllSAFE and others note that the DOE Pilot Study found many issues 
with SNREs that were not discussed in Growth Energy's waiver 
application. For example, commenters noted the following problems from 
the DOE Pilot Study: (1) Three Weed Eater blower engines failed, one on 
E0 and two on E15; (2) one Weed Eater blower would not idle on E20 and 
(3) another Weed Eater blower would not make full power on E20; (4) a 
Stihl line trimmer had high idle with E15 and E20 that caused clutch 
engagement at idle; and (5) a Briggs and Stratton 3500 kW generator 
stalled and experienced loss of power and abrupt stopping of the engine 
on E20.
    Commenters also point to the operability problems that arose in the 
Briggs and Stratton Study. In the study, a 6.0 HP Quantum engine was 
used for temperature, durability and performance, and evaporative 
testing. AllSAFE and others note that higher operating temperatures 
were observed with increasing ethanol content. The authors say that the 
higher temperatures caused material compatibility issues, citing a head 
gasket failure after 25 hours of ``very light duty testing.'' \106\ The 
RPM stability was observed to decrease for both E10 and E20 over E0, 
with the decrease for E20 close to three times larger than for E10. The 
stability decrease can lead to harsh audible speed oscillations which 
may be deemed unacceptable for many applications which require stable 
engine speeds (e.g., generator, lawn equipment, etc.).\107\ Tests on 
starting showed a decrease in acceleration using E20 in comparison to 
E10 and E0.
---------------------------------------------------------------------------

    \106\ EPA Docket Number: EPA-HQ-OAR-2009-0211-2559.
    \107\ Generator sets need constant speed in order to provide 
reliable power for tasks. Lawnmowers require consistent engine speed 
in order to maintain constant blade tip speed whose top speed is 
governed by a safety standard.
---------------------------------------------------------------------------

    Several commenters argue that Growth Energy does not provide data 
concerning the performance of many categories, classes, and families of 
nonroad engines on E15, and the test data from the DOE Pilot Study is 
not adequate to cover all nonroad applications. Notable data gaps 
include information regarding marine engines, snowmobiles, recreational 
vehicles, motorcycles, and several classes of small nonroad engines 
that were not tested in the DOE Pilot Study. In addition, several 
commenters noted, some of the operability issues may pose a significant 
safety hazard to operators of small nonroad engines due to higher idle 
speeds and inadvertent clutch engagement.

D. EPA Analysis

1. Scope of Nonroad Data to Support a Waiver Decision
    Prior to assessing the technical merits of the information 
submitted by Growth Energy to support their waiver application with 
respect to nonroad products, it is necessary to first assess the 
completeness of the application. Listed above are four major categories 
of nonroad engines, and these categories are further broken down into 
various classes based on the fundamental differences in engine and 
vehicle design within these classes. EPA has promulgated exhaust and 
evaporative emission standards for these different categories at 
various times and these regulations have resulted in various approaches 
to engine calibration and design.\108\ Therefore, to assess the 
potential impacts of E15 on nonroad products requires data representing 
the cross section of different nonroad engine categories. EPA 
highlighted this necessity in discussions with Growth Energy, RFA, DOE, 
and other

[[Page 68134]]

stakeholders even prior to the receipt of the E15 waiver 
application.\109\
---------------------------------------------------------------------------

    \108\ See Tables in 73 FR 59034, 59036 (10/8/08).
    \109\ EPA Docket EPA-HQ-OAR-2009-0211-2559.2, API 
Technology Committee Meeting, Chicago, 6/4/08.
---------------------------------------------------------------------------

    The following table summarizes the many potential breakouts of 
nonroad engine technologies currently in the in-use fleet. Growth 
Energy gave us data in four areas shown below. Even in areas in which 
Growth Energy provided data, those data were very limited. Since Growth 
Energy has not provided information to broadly assess the nonroad 
engine and vehicle sector, since there are important differences in 
design between the various classes and categories, and since the Agency 
is not aware of other information that would allow us to do so, it is 
not possible for the Agency to fully assess the potential impacts of 
E15 on the emission performance of nonroad products. In addition, as 
discussed below, there are reasons for concern with the use of E15 in 
nonroad products, particularly with respect to long-term exhaust and 
evaporative emissions durability, and materials compatibility, so the 
need for data is all the more important.

                                                           Table V.D-1--Nonroad Engines and Engine Technologies Over the Past 14 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Pre-reg: 2-       Pre-reg: 4-       Phase 1: 4-       Phase 1: 2-                         Phase 2: 2-       Phase 2: 4-
            SMALL SI                   stroke       stroke  (ohv/sv)  stroke  (ohv/sv)    stroke w/cat        Phase 2:        stroke w/cat         stroke           Phase 3:      Phase 3: w/cat
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Class I.........................  X...............  X ohv...........  X sv............  -...............  -...............  -...............  X sv **.........  X sv...........  X sv
                                  ................  X SV............  Xohv............  ................  ................  ................  X ohv **........  X ohv..........  ...............
Class II........................  -...............  X sv **.........  X sv............  -...............  -...............  -...............  X ohv...........  X ohv..........  -
                                  ................  X ohv **........  X ohv...........  ................  ................  ................  ................  ...............  ...............
Class III.......................  X...............  -...............  X...............  X...............  -...............  X...............  -...............  -..............  -
Class IV........................  X...............  -...............  X...............  X...............  -...............  X **............  X **............  -..............  -
Class V.........................  X...............  -...............  X...............  X...............  -...............  X...............  -...............  -..............  -
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                                                                          Phase 2: 4-str
             MARINE                  Pre-reg: 2-      Pre-reg: 2-      Phase 1: 4-     Phase 1: 2 DI     Phase 1: 4-     Phase 1: 4-EFI    closed loop
                                       stroke          stroke IDI         stroke                         stroke Carb                         catalyst
--------------------------------------------------------------------------------------------------------------------------------------------------------
Outboard........................  X...............  X..............  X (few)........  X..............  X..............  X..............  -
PWC.............................  X...............  X..............  -..............  X..............  -..............  X..............  -
SD/I............................  -...............  -..............  X..............  -..............  X..............  X..............  X
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                         Phase 1: 4-
          RECREATIONAL               Pre-reg: 2-       Pre-reg: 4-      stroke closed      Phase 1: 4-       Phase 1: 2-       Phase 2: 2-       Phase 3: 2-      Phase 3: 4-
                                       stroke            stroke           crankcase          stroke            stroke            stroke            stroke            stroke
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NRMC............................  X...............  X...............  X...............  X...............  X*..............  N/A.............  N/A.............  N/A............  ...............
Snow Mobiles....................  X...............  X...............  X...............  X...............  X...............  X...............  X...............  X..............  ...............
ATV.............................  X...............  X...............  X...............  X...............  -...............  N/A.............  N/A.............  N/A............  ...............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*NRMC: allows 2-stroke competition bikes.
** Data Provided by Growth Energy on one/two engine families per group.

2. Long-Term Exhaust Emissions (Durability)
    Ethanol contains oxygenates which result in a leaner operating A/F 
ratio. Unlike light-duty vehicles, the overwhelming majority of nonroad 
engines are ``open loop'' and do not automatically adjust for 
oxygenated content of the fuel. Hence they are subject to direct and 
continuous effects to changes in combustion characteristics (i.e., 
leaner mixture) of increased ethanol in the fuel which typically result 
in hotter combustion and exhaust temperatures during operation. These 
changes in combustion result in general increases in NOX 
emissions and decreases in HC emissions. This increase in temperature 
will vary between engines and engine operating conditions. In addition 
to the NOX emission increases that are observed almost 
immediately with increased ethanol levels, there is a concern that an 
increase in temperature can compromise long-term durability of the 
engines resulting in a significant deterioration of all emissions over 
time.
    The potential for an increase in operating temperatures to cause 
long-term durability issues for engines is shown in the accelerated 
full life aging emission results in the DOE Pilot Study\110\. Four new 
Class I B&S consumer and four new Class I Honda commercial engines were 
aged on non-ethanol and ethanol blends (one engine each on E0, E10, E15 
and E20). All engines were tested on non-ethanol fuels when new and at 
the end of aging on their respective fuel. The change in emissions on 
non-ethanol fuel gives a basis for comparison of the deterioration 
effects of aging on various ethanol blend fuels.\111\ For the B&S Class 
I engines, it was found that the non-ethanol aged engine leaned over 
time with CO decreasing and NOX increasing. For the ethanol 
aged engine, the increases in CO along with the increases in HC 
illustrate the possibility of valve warpage and valve seat distortion, 
or piston/piston ring/engine block distortion due to the increased 
combustion temperatures. In these cases the combustion becomes less 
efficient, and hence CO and HC emissions increase, due to the leak past

[[Page 68135]]

the valves or piston rings. The Honda Class I engine aged on non-
ethanol showed small increases in both HC and CO, however the trend was 
clear in the ethanol engines that the HC and CO emissions increased and 
NOX decreased in line with increasing amounts of ethanol. 
Some of the variability in emission results are due to the fact that 
these engines are mechanically governed, single cylinder (high 
vibration), carbureted, open loop, air and fuel cooled and hence engine 
aging is subject to a number of mechanical and quality factors.
---------------------------------------------------------------------------

    \110\ Effects of long term storage and seasonal use were not 
captured in the accelerated aging.
    \111\ DOE Pilot Study contained data from which the following 
changes in emissions were calculated. On the B&S consumer engines, 
the engine aged on non-ethanol fuel had no change in HC, +76% in 
NOX and -47% in CO. The engines aged on E10, E15 and E20 
showed changes in HC of +44%, +149%, +99% and NOX changes 
of -5%, 0% and 14%, and CO changes of +36%, +109% and +17%, 
respectively. The Honda commercial engine showed that the engine 
aged on non-ethanol fuel had emission changes of +25% HC, 
0%NOX and 14%CO. The engines aged on E10, E15 and E20: 
HC: 4%, 42% and 69%, NOX: 11%, -14%, -16% and CO: 
+5%,+16%,+24%, respectively.
---------------------------------------------------------------------------

    The DOE Pilot Study cited by Growth Energy assessed the potential 
long-term durability emission effects of several SNREs in the F mixture. Depending on the engine category, engine 
cooling may be critical to durability and therefore the ability to 
continue to operate on E15. Some engines that run too lean for an 
extended period of time may also result in engine seizure in which the 
metal of the piston, piston rings and engine cylinder expand into each 
other due to the increased temperatures and hence cannot function.
    While data on long-term durability on E15 of other nonroad 
categories does not currently exist, we believe that many of the 
concerns expressed regarding small SI engines may to varying degrees be 
indicative of other nonroad categories as well. These concerns include 
concerns of open loop carburetion or open loop fuel injection and 
enleaned 4-stroke engine running on a fuel with oxygenates where there 
used to be richer running 2-stroke or 4-stroke engines.
3. Immediate Exhaust Emission Effects
    In evaluating the emission impacts of a new fuel or fuel additive, 
the Agency not only considers potential long-term durability impacts, 
as discussed above, but also the existence and magnitude of any 
immediate exhaust emission impacts that are evident immediately upon 
switching to the new fuel or fuel additive. Growth Energy referred to 
two studies for immediate tailpipe emission effects and they include 
the DOE Pilot Study and a 1999 study on ``The Effect of High Ethanol 
Blends on Emissions from Small Utility Engines''.
    The DOE Pilot Study contained emissions at new engine condition for 
two sets of Phase 2 SNRE's. One set was used for the pilot study and 
the second set was used for the useful life durability study. The 
results showed that emission changes from the use of E15 resulted in 
increased NOx emissions and decreased HC and CO emissions. For both 
Class I engines the HC and CO emissions decreased and NOx emissions 
increased in comparison to E0. The overall change of HC+NOx (the form 
of the emissions standard for nonroad engines) for a particular engine 
was dependent on whether the NOx increased more than the HC decreased, 
but in general it appears that the two changes tended to balance each 
other out for the engines and fuels tested.
    Class II engines were examined in a second study \112\ referred to 
by Growth Energy. The study conducted emission testing on three MY1994 
SNREs (12.5 hp) engines using SAE and EPA procedures and showed that 
pre-regulation Class II engines experienced a similar trend with 
respect to immediate exhaust emission impacts as Class I engines in the 
DOE Pilot Study. In their comments, AllSAFE also pointed to recent 
testing described in a Briggs and Stratton Study of exhaust emission 
testing on a Quantum engine using E20. It showed a decrease in HC 
emissions and a 133% increase in NOx emissions using E20 when compared 
to E0, which resulted in 10.5% increase in HC + NOx emissions. While it 
was on E20 instead of E15, this data is still helpful in showing that 
despite a very large percentage impact on NOx emissions, the overall 
immediate emission impact of E15 on the combined HC+NOx emission 
standard is likely to be a relatively small one. Nevertheless, since 
the available studies do not provide data for other nonroad engine 
categories it is unclear how broadly these results can be extrapolated 
across other nonroad products. Therefore the number of engines and 
applications tested needs to be widened before any conclusions can be 
made for all of nonroad products.
---------------------------------------------------------------------------

    \112\ Bresenham, D. and Reisel, J. ``The Effect of High Ethanol 
Blends on Emissions from Small Utility Engines,'' SAE 1999-01-3345, 
JSAE 9938100, 1999.
---------------------------------------------------------------------------

4. Evaporative Emissions
    Different evaporative emission standards have been established for 
the different nonroad engine categories. As shown in Tables V.D.4-1 and 
V.D.4-2 below, evaporative emissions standards for nonroad products are 
focused on three aspects: (1) Fuel line and fuel tank permeation; (2) 
vapor loss through diurnal or running loss conditions where the 
volatility of the fuel will be important for compliance; and, (3) the 
durability of the nonroad product in achieving these standards over its 
full useful life. The test fuel for fuel tank permeation is E10 and the 
test fuel for hose permeation is CE10. The test fuel for the diurnal 
standards is certification fuel (E0) with a volatility of 9.0 RVP. 
These standards came into effect in 2007 for Large SI engines, 2008 for 
recreational vehicles and are being phased in from 2009-2015 for Small 
SI engines and Marine SI engines. For each of these standards, 
permeation requirements are based on the use of a test fuel containing 
10 vol% ethanol.

[[Page 68136]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.009

[GRAPHIC] [TIFF OMITTED] TN04NO10.010

    Growth Energy did not submit any data that evaluated how the use of 
E15 would impact evaporative emissions and evaporative emissions 
controls for nonroad products, and instead relied on light-duty motor 
vehicle information. The Agency is not aware of any test data to 
evaluate these impacts of E15 on nonroad products. However, from an 
engineering standpoint, it would appear that the main concern with the 
use of E15 in nonroad products for evaporative emissions would be 
durability, and these concerns stem from materials compatibility 
concerns in the fuel system, as discussed in the next section. For 
diurnal emissions compliance, as for light-duty motor vehicles, our 
belief is that as long as E15 meets the same volatility as E0 
certification fuel (9.0 psi RVP), then its emissions performance should 
be comparable. Testing on vehicles discussed in section IV.A.3. has 
shown that diurnal emissions are primarily a function of the volatility 
of the fuel, not the ethanol content, and there is no reason to suggest 
otherwise for nonroad products. However, due to the rudimentary 
evaporative emissions controls on most nonroad products, any higher 
volatility would lead to higher evaporative emissions, potentially 
causing the nonroad products to exceed their standards. In the case of 
the permeation related evaporative emissions standards, it is likewise 
possible that the designs certified for E10 use may also qualify with 
E15. As discussed in section IV.A.3., permeation testing on light-duty 
fuel tanks (CRC E77 studies) seems to suggest permeation with E15 may 
be comparable to that with E10, assuming the RVP will not increase 
between the two fuels. Since nonroad permeation standards already use 
E10 as the test fuel, this would suggest that nonroad products would 
continue to meet their permeation standards with E15. The only question 
is whether the test results on light-duty motor vehicle fuel systems 
would be applicable to tanks and hoses used in nonroad products.
---------------------------------------------------------------------------

    \113\ The complete table is available at http://www.epa.gov/otaq/standards/nonroad/nonroadsi-evap.htm.
---------------------------------------------------------------------------

5. Materials Compatibility
    Materials compatibility is one of the key issues that the Agency 
reviews due to the potential for very large exhaust or evaporative 
emission impacts of a fuel or fuel additive, not only in the short

[[Page 68137]]

term, but especially over the life of the motor vehicle or nonroad 
product. Growth Energy argues that the Minnesota Compatibility Study 
demonstrates that SNREs should experience no significant problems with 
E15. However, as highlighted by commenters, the focus of the Minnesota 
Compatibility Study was on the materials used in motor vehicles' fuel 
systems and that nonroad engine manufacturers use different elastomers, 
polymers, and plastics not investigated in the Minnesota Compatibility 
Study. Furthermore, a wide range of materials have been used over the 
years by the many different nonroad products manufacturers for the many 
different nonroad products currently in use. The study does not claim 
to have tested all materials nor provide any means of quantifying the 
degree to which the materials tested reflect those in the current 
fleet. Growth Energy contends that the DOE Pilot Study showed no 
material compatibility issues. However, several commenters note that 
the DOE Pilot Study's authors point out that materials compatibility 
issues ``were not specifically characterized as part of this study.'' 
\114\ The Agency's review of the DOE Pilot Study is that the main focus 
was to measure emissions changes from the use of various fuels in SNREs 
over a test procedure that lasted 125-500 hours (or 10-40 days at 12.5 
hours/day). Materials compatibility issues are mostly seen over a 
length of time of unused fuel sitting in the fuel tank and in the fuel 
system, and this was not a focus of the study. For the Minnesota 
Compatibility Study, there was minimal if any applicable information 
for the vast range of nonroad products and no information to correlate 
the materials tested with those in the in-use fleet of nonroad 
products.
---------------------------------------------------------------------------

    \114\ EPA Docket EPA-HQ-OAR-2009-0211-0335: ``Effects 
of Intermediate Ethanol blends on Legacy Vehicles and Small Non-Road 
Engines, Report 1,'' October 2008, page 3-12, NREL/TP-540-43543 and 
ORNL/TM-2008/117.
---------------------------------------------------------------------------

    Due to the unique chemical and physical characteristics of ethanol, 
in comparison to gasoline, one must be careful in selecting materials 
for use in motor vehicles and nonroad products to ensure long-term 
materials compatibility. Otherwise, materials incompatibility can lead 
to long-term exhaust and evaporative emission increases that may or may 
not be detected in certification and compliance testing, as well as 
product operability problems that could lead to product tampering and 
premature engine failure.
    Two studies cited by commenters serve to highlight the importance 
of materials compatibility with gasoline-ethanol blends: (1) The 
Orbital Nonroad Products Study; and (2) the Briggs and Stratton Study. 
The Orbital Nonroad Products Study conducted 2,000-hour bench testing 
with E20 on materials from the fuel systems of a Mercury 15hp Marine 
Outboard engine and a Stihl F45R Line Trimmer. The Orbital Nonroad 
Products Study found that E20 caused severe corrosion, rusting and 
pitting of metallic and brass components, such as the carburetor body 
and throttle, piston rings, crankshaft seal housing, crankshaft 
bearings and surfaces, connecting rod, cylinder liner, and throttle 
blades. The study also found that E20 caused swelling, distortion and 
degradation of the fuel delivery hose, fuel primer bulbs, fuel line 
connector, and crankshaft seal. The Orbital Nonroad Products Study 
concluded that these problems would likely cause: (1) Oxides that may 
dislodge and damage the engine; (2) the loss of intended fuel-air 
metering and control; and (3) fuel leakage.
    The Briggs and Stratton Study presented results of a completed 
evaluation of the impacts of E20 on EPA-certified engines through 
soaking fuel components. After six months of soaking, the study showed 
5-10% greater swelling and mass gained by gaskets and rubber parts for 
parts soaked in E20 compared to E0. The epoxy for the Welsch plug, a 
plug placed over the progression holes in the carburetor body, 
dissolved in E20 and coated the plug. In a running engine, that could 
result in the plug falling out and fuel leaking from the carburetor, 
resulting in a potential increase in evaporative emissions. The inlet 
needle seats and the fuel cap gaskets swelled, which could also lead to 
increases in evaporative emissions. Garden tractor fuel tank caps and 
seals ``exhibited extreme swelling'' in E20 versus E0.\115\
---------------------------------------------------------------------------

    \115\ It was not clear exactly what parts were used for the fuel 
soaking tests. It was stated in the study that a 6.0 HP Quantum 
engine was used, specifically ``engine 123K02 0239E1 04061458 was 
used for all testing except exhaust emissions.'' However, it was 
stated that ``parts'' were soaked, not an engine.
---------------------------------------------------------------------------

    Given the available information to suggest a cause for materials 
compatibility concerns that could lead to elevated exhaust and 
evaporative emissions, we do not believe the information provided by 
Growth Energy adequate addresses materials compatibility for E15 use in 
nonroad products.
6. Driveability and Operability
    E15 will introduce a leaner A/F ratio to the engine compared to 
motor vehicle gasoline in use today. The open-loop fuel systems on the 
nonroad engines will not adjust for this and the engines will be 
subject to potential immediate and long-term operability and 
drivability issues, such as those described in the DOE Pilot 
Study.\116\ The concern regarding operability and driveability is that 
if the use of E15 resulted in poor operation of nonroad products, 
causing such things as misfires, backfires or carburetor malfunctions, 
then this would cause short-term and long-term emission increases. In 
addition, it would encourage consumers to adjust and/or tamper with 
their nonroad products to improve performance. Most nonroad products 
that have been designed to our emission standards have been required to 
be tamper resistant to protect the emissions performance of the 
product. However, this also means that if the nonroad product operates 
poorly on E15, it will continue to do so, which may increase emissions 
and shorten its life.
---------------------------------------------------------------------------

    \116\ The DOE Study of February 2009 on Small SI engines 
includes information in Table 3.5: A Class I consumer engine was 
described to lose power at full load on E20 however did run well if 
more fuel was put into the engine. A Class IV engine was found to 
have 25% higher idle speed due to the fact that the extra oxygen in 
the fuel improves combustion and hence speed increases (they do not 
have speed governors). A Class IV 2-stroke handheld engine seized on 
E20. A Class I commercial engine showed erratic operation at light 
loads due to unstable governor.
---------------------------------------------------------------------------

E. Conclusion

    It is the burden of the applicant to demonstrate that any new fuel 
or fuel additive that requires a waiver under CAA section 211(f)(4) of 
the substantially similar prohibition in CAA section 211(f)(1) will not 
cause or contribute to the failure of nonroad engines and nonroad 
vehicles to meet their emissions standards over the engines' or 
vehicles' full useful life. Growth Energy has not made this 
demonstration as Growth Energy has not provided sufficient data and 
information to broadly assess the performance of all nonroad products 
while using E15. Additionally, based on our own engineering judgment 
after review of all available data for nonroad products, we find that 
there are emissions-related concerns with the use of E15 in nonroad 
products, particularly regarding long-term exhaust and evaporative 
emissions (durability) impacts and materials compatibility issues. 
Therefore, the Agency has concluded that it cannot grant a waiver for 
the use of E15 in nonroad products based on existing data.

[[Page 68138]]

VI. Heavy-Duty Gasoline Engines and Vehicles

    Given its limited market, heavy-duty gasoline engines and vehicles 
have not been the focus of test programs and efforts to assess the 
potential impacts of E15 on such engines and vehicles. From a 
historical perspective, the introduction of heavy-duty gasoline engine 
and vehicle technology has lagged behind the implementation of similar 
technology for light-duty motor vehicles. Similarly, emissions 
standards for this sector have lagged behind those of light-duty motor 
vehicles, such that current heavy-duty gasoline engine standards remain 
comparable, from a technology standpoint, to older light-duty motor 
vehicle standards (for example Tier 1 emissions standards). 
Consequently, we believe the concerns raised for MY2000 and older motor 
vehicles are also applicable to the majority of the in-use fleet of 
heavy-duty gasoline engines and vehicles. Additionally, Growth Energy 
did not provide any data specifically addressing how heavy-duty 
gasoline engines and vehicles' emissions and emissions control systems 
would be affected by the use of E15 over the full useful life of these 
vehicles and engines. Thus, a waiver is not being granted for these 
engines and vehicles.

VII. Highway and Off-Highway Motorcycles

    Growth Energy did not provide any data addressing how motorcycle 
emissions and emissions control systems would specifically be affected 
by the use of E15 over their full useful life. Like heavy-duty gasoline 
engines and vehicles, highway and off-highway motorcycles have not been 
the focus of test programs to evaluate the effects on these motorcycles 
while using E15. While some newer highway and off-highway motorcycles 
incorporate some of the advanced fuel system and emissions control 
technologies that are found in passenger cars and light-duty trucks, 
such as electronic fuel injection and catalysts, many do not have the 
advanced fuel trim control of today's motor vehicles that would allow 
them to adjust to the higher oxygen content of E15. More importantly, 
older highway and off-highway motorcycles do not have any of these 
technologies (i.e., their engines are carbureted and/or they do not 
have catalysts) and are therefore more on par with MY2000 and older 
motor vehicles and light-duty trucks. Consequently, we believe the 
discussion for MY2000 and older motor vehicles applies to highway and 
off-highway motorcycles.

VIII. E12 Midlevel Gasoline-Ethanol Blends

    On June 7, 2010, EPA received a letter from Archer Daniels Midland 
Company (ADM) to consider, within the context of Growth Energy's E15 
waiver application, allowing 12 vol% ethanol in gasoline (E12) for the 
introduction into commerce for all motor vehicles.\117\ ADM also 
requested that EPA modify its ``substantially similar'' interpretive 
rule under CAA section 211(f)(1) and allow higher oxygen content, thus 
allowing for introduction of E12 into the marketplace without need for 
a waiver. On July 20, 2010, ADM sent a Technical Support Document (TSD) 
in support of these requests (``ADM TSD'').\118\ On September 3, 2010 
API submitted its response to both ADM documents, arguing that ADM's 
analysis contained several critical flaws and suggested that EPA not 
approve E12 to be introduced into commerce for all motor vehicles.\119\ 
On September 17 and 24, 2010, the Alliance and AllSAFE submitted their 
own responses with similar arguments.\120\ We are treating all of these 
letters as late comments received on the Growth Energy waiver request 
application. The following sections address ADM's request and 
supporting rationale,\121\ the responses received, and our own analysis 
regarding ADM's request.
---------------------------------------------------------------------------

    \117\ Woertz, P.A. Letter to Lisa P. Jackson. 7 June 2010. See 
Docket ID EPA-HQ-OAR-2009-0211-13999.
    \118\ Technical Support Document For Archer Daniles Midland 
Company's Request for Approval of Ethanol-Gasoline Blends of Up To 
And Including 12 Percent Ethanol, July 20, 2010, EPA Docket 
EPA-HQ-OAR-2009-0211-13995.
    \119\ CRC Project No. CM-136-09-1B, EPA Docket EPA-HQ-
OAR-2009-0211-14008.
    \120\ See Docket EPA-HQ-OAR-2009-0211-14005.1, p.7 and 
Docket  EPA-HQ-OAR-2009-0211-14004.1, p.3.
    \121\ In the ADM TSD, ADM in many cases uses data and other 
information either submitted as part of the Growth Energy 
application or addressed by EPA above in Section IV for ADM's 
assertions regarding E12. For example, ADM uses data and information 
from the Growth Energy application to discuss materials 
compatibility issues for E12. This data and information has already 
been evaluated and addressed by EPA in the appropriate sections 
above. This Section VIII will only address new data and information 
submitted regarding E12 in the ADM, API, AllSAFE and Alliance 
submissions that were not previously submitted elsewhere as part of 
Growth Energy's waiver request application.
---------------------------------------------------------------------------

    In the ADM TSD, ADM made several arguments for its requests that 
EPA grant a CAA section 211(f)(4) waiver for E12 and that EPA amend its 
CAA section 211(f)(1) ``substantially similar'' interpretive rule and 
consider E12 ``substantially similar'' to its certification fuels. For 
example, in making its argument for granting an E12 waiver, ADM 
presented some new data, such as evaluations of fuel survey data 
regarding levels of ethanol in gasoline in the national market today. 
ADM used their survey results to attempt to evaluate expected emissions 
impacts and other related issues from using E12 and to conclude that 
the E12 supposedly now in use in the national gasoline market was not 
resulting in any motor vehicle problems that adversely affect 
emissions. ADM also argued that EPA already effectively allows E12 in 
the marketplace through previously issued letters and its models. In 
making all of these arguments, it appears that ADM was essentially 
attempting to address the four factors discussed in Section III that 
EPA analyzes when reviewing a waiver request. In other words, ADM was 
apparently making these arguments in an attempt to assert that E12 
satisfies these four factors so EPA should grant a waiver for E12. EPA 
generally disagrees with ADM's conclusions and addresses each of these 
arguments, as well as the comments received on the ADM submission, 
below.

A. First Argument: E12 Is Already Used in the Marketplace With No 
Reported Problems

1. ADM Argument
    In its request, ADM argued that based on surveys and studies, E12 
is already in significant use and there have not been any problems 
reported in-use or in the studies. To support their argument, ADM 
relied on fuel sample survey data from ``selected years and seasons'' 
from the seasonal Northrop Grumman motor gasoline surveys.\122\ ADM 
suggested that these data provide ``significant and substantial 
compelling data demonstrating that ethanol blends approaching E12 are 
currently available and are being used in the United States without 
incident''.\123\ Additionally, ADM argues that around 30% of samples 
reported in select years and seasons from 1990 through 2009 have 
denatured ethanol contents greater than 10.5 vol%. ADM specifically 
cites the summer 2008 Northrop Grumman motor gasoline survey data as 
showing that over 70% of samples had denatured ethanol contents of 
higher than 10 vol% ethanol and approximately 30% of samples had 11 
vol% or greater denatured ethanol contents.\124\
---------------------------------------------------------------------------

    \122\ See ADM TSD, 5-8.
    \123\ See ADM TSD, 5.
    \124\ See ADM TSD, 5-8.
---------------------------------------------------------------------------

2. API, AllSAFE, and Alliance Comments
    Commenters pointed out that ADM's data is based upon measurements 
of

[[Page 68139]]

``denatured'' ethanol \125\ and that the Northrop Grumman data is 
actually based upon tests which measure actual ethanol content. 
Commenters also pointed out that one possible reason for the higher 
ethanol contents in ADM's analysis may have been an attempt to take the 
volume of the denaturant into account for each fuel sample. API stated 
that this may mislead the reader since the pertinent data is actual 
ethanol or neat ethanol content and inclusion of an assumed denaturant 
was inappropriate in making the case that higher ethanol contents were 
routinely in the marketplace.
---------------------------------------------------------------------------

    \125\ By regulation denaturant is required to be added to fuel-
grade ethanol in order that it not be sold for non-fuel purposes 
such as the production of beverages.
---------------------------------------------------------------------------

    Commenters also argued that ADM failed to provide any peer-reviewed 
test program or published test data that shows that the possible 
prevalence of E12 in some areas did not result in substantial 
mechanical failures. API and the Alliance also analyzed the Northrop 
Grumman data and other datasets and concluded that ADM's conclusions 
about the prevalence of E12 in the marketplace were not accurate. In 
its submission, AllSAFE aligned itself with these comments.
3. EPA Analysis
    The Agency evaluated the Northrop Grumman data and found that the 
actual number of samples that had measured ethanol contents greater 
than 10 vol% ethanol and 11 vol% ethanol were very low. For example, 
Figure VIII.A.3-1 below shows the distribution of all fuel samples 
included in the summer 2008 Northrop Grumman motor gasoline survey that 
had greater than 5 vol% ethanol.\126\
---------------------------------------------------------------------------

    \126\ We chose to look at only samples that contained greater 
than 5 vol% ethanol because those appear to be the samples included 
in ADM's analysis. See ADM TSD, page 8.
[GRAPHIC] [TIFF OMITTED] TN04NO10.011

    Figure VIII.A.3-1 shows that less than 0.5% of samples in the 
summer of 2008 had measured ethanol concentrations greater than 11 vol% 
and only approximately 2% of samples had measured ethanol 
concentrations greater than 10.5 vol%. Due to inherent variability of 
the ASTM test procedure used to measure the concentration of ethanol in 
gasoline (both within the same testing laboratories and between 
different laboratories), the observed distribution in measurements of 
ethanol content is precisely what one would expect to see for fuel 
samples that actually contained no more than 10 vol% ethanol. Since the 
blending equipment used at terminals to blend ethanol and other 
additives into gasoline is extremely precise, and our understanding and 
experience is that the industry practice is to be as close to 10% as 
possible, there is no reason to believe that ethanol levels greater 
than 10 vol% have been experienced in-use except in the infrequent 
circumstances of blending equipment failure. Recognizing the 
variability in the ASTM test method results, the Northrop Grumman data 
actually confirms this to be the case. Had ethanol concentrations 
actually been at 11 vol% or even 12 vol% in practice, then the 
variability associated with test measurements would have resulted in 
some samples measuring as high as 13 vol% or 14 vol%. Such levels have 
not been seen.
    These results are also similar to results using other data sources. 
Figure VIII.A.3.-2 shows the distribution of ethanol content 
measurements for the fuel samples containing greater than 5 vol% 
ethanol collected by the Alliance from 2007 through 2009. Again, these 
data show the expected distribution of measurements around 10 vol% that 
one would expect for fuels actually containing 10 vol% ethanol using a 
test method with significant variability.

[[Page 68140]]

[GRAPHIC] [TIFF OMITTED] TN04NO10.012

    Figure VIII.A.3-3 shows data for summer 2008 from the RFG Survey 
Program. Although these data do not represent the nation as a whole, 
they are obtained from a robust survey program designed to estimate RFG 
fuel parameters. As can be seen, this data shows the same consistent 
distribution around 10 vol% as the Northrop Grumman and Alliance data.
[GRAPHIC] [TIFF OMITTED] TN04NO10.013

[[Page 68141]]

    As highlighted by API, we believe one possible reason for the 
slightly lower results from our analysis and ADM's analysis is that an 
attempt may have been made to take the volume of the denaturant into 
account for each fuel sample. Northrop Grumman reports ethanol content 
as vol% measured with ASTM 5599; however, ADM describes their analysis 
in terms of denatured ethanol. Adjusting the ethanol content of samples 
to include denaturant would shift the distribution and show a higher 
percentage of fuels containing greater than 10 vol% ethanol.\127\ 
However, the original waiver for E10 allowed for 10 vol% anhydrous 
ethanol and testing of fuel samples as mentioned above indicate that 
the full 10 vol% ethanol is actually utilized in making E10. We 
therefore believe this would be an inappropriate adjustment of ethanol 
content that may be misleading since denaturant is typically unleaded 
gasoline and therefore would not be expected to have an adverse effect 
on motor vehicles and nonroad products.
---------------------------------------------------------------------------

    \127\ Since most ethanol is denatured with hydrocarbon mixtures, 
typically gasoline itself, EPA is unaware how the denaturant content 
could have been determined if the samples tested were samples of 
gasoline-ethanol blends.
---------------------------------------------------------------------------

    Additionally, ADM's analysis of the historical data was not 
complete. The data selected from the Northrop Grumman surveys are 
limited; for example, the 2005 survey uses only 173 fuel samples and 
appeared to ignore other fuel samples in the same survey for the same 
year and also used only selected seasons and years for their arguments. 
When we look at all the data available, including all the Northrop 
Grumman data, the Alliance data, and the RFG survey data, in the 
context of the ASTM test method variability, we conclude that it 
supports a conclusion that in-use ethanol levels have not exceeded 10 
vol%. Otherwise measurements would have been considerably higher.
    Furthermore, even if one were to accept ADM's argument that there 
have been isolated geographically or temporally oriented situations 
where gasoline-ethanol blends up to and including E12 were in common 
use for a period of time, ADM has not provided a method of determining 
or measuring whether problems occurred.

B. Second Argument: EPA Effectively Allows Gasoline-Ethanol Blends 
Greater Than E10

1. ADM Argument
    ADM also argued that EPA guidance at various times in the late 
1980s and 1993 indicated EPA's allowance for gasoline-ethanol blends 
containing greater than 10 vol% ethanol. ADM sites three letters from 
EPA in support of their argument.\128\ For the first two letters, ADM's 
argument was based on EPA-stated oxygen contents for average E10 
gasoline-ethanol blends or maximum oxygen contents for E10 blends. With 
respect to the third letter, ADM argued that by allowing contaminant 
levels of MTBE in gasoline for ethanol blending, EPA was endorsing the 
intentional ``stacking'' of 10 vol% ethanol on top of gasoline with up 
to 2 vol% MTBE, thus allowing for higher oxygen levels equivalent or 
nearly equivalent to E12. ADM then argues that the letters essentially 
were an EPA allowance to utilize up to 11.7 vol% ethanol.
---------------------------------------------------------------------------

    \128\ See ADM TSD, 9.
---------------------------------------------------------------------------

2. EPA Analysis
    ADM inappropriately concludes that EPA was approving ethanol 
content above 10 vol% in the first two letters. These two letters 
merely stated various oxygen weight contents as estimates of the weight 
percent of oxygen in a 10 vol% gasoline-ethanol blend, depending upon 
the density of the gasoline into which the ethanol was added.\129\ 
Neither EPA letter states, nor was there any intention conveyed, that 
it was legal to blend ethanol above 10 vol% into unleaded gasoline.
---------------------------------------------------------------------------

    \129\ Gasoline densities typically vary seasonally and 
geographically to account for varying performance requirements such 
as variations in requirements for cold and hot weather or high-
altitude regions. The oxygen content of 10 vol% ethanol in gasoline 
varies as the density of the gasoline into which it is blended 
varies. For example, when 10 vol% ethanol is added to a relatively 
low-density winter gasoline, the oxygen content from the ethanol 
will be relatively heavier than when the same ethanol is added to a 
heavier or higher density summertime fuel.
---------------------------------------------------------------------------

    In the third letter, EPA had recognized how ubiquitous MTBE had 
become in the fungible gasoline distribution system, including in 
pipelines and terminals. The allowance for very small amounts of MTBE 
in gasoline to be blended with ethanol (so-called ``stacking'') was 
allowed to address the ubiquitous presence of MTBE in some fungible 
systems at that time, making it a low-level contaminant for gasoline 
used in E10. Typically the MTBE was in trace amounts in gasoline and 
was not close to 2 vol%. The letter recognized this as a contaminant so 
that it would not be unlawful to add up to 10 vol% ethanol into the 
base gasoline. Refiners were not permitted to intentionally produce a 
gasoline using 2 vol% MTBE and 10 vol% ethanol. EPA has not stated that 
it is permissible to utilize over 10 vol% ethanol under the original 
ethanol waiver and the data discussed above shows that, in practice, it 
is only rarely (and impermissibly) used above 10 vol%.\130\
---------------------------------------------------------------------------

    \130\ Although very small amounts of oxygen were added when 
trace contaminant amounts of MTBE were allowed when such gasoline 
had been inadvertently added to 10 vol% ethanol, MTBE would, in any 
event, have different effects on vehicles/engines in that it is a 
less polar molecule resulting in different impacts regarding 
materials compatibility.
---------------------------------------------------------------------------

C. Third Argument: EPA's Models Allow Greater Than 10 Vol% Ethanol

1. ADM Argument
    ADM further argued that E12 is implicitly allowed by virtue of the 
oxygen limits allowed in the Complex Model. ADM argued that since the 
Complex Model \131\ provides valid emissions results for a fuel with up 
to 4% oxygen by weight (wt%), and E12 is ``close'' to this weight 
percent limit since it represents 4.2 wt% to 4.4 wt% in gasoline, EPA, 
through this model, has effectively already allowed use of E12.
---------------------------------------------------------------------------

    \131\ The ``Complex Model'' is a regulatory model used to 
predict the emissions effects of various gasoline properties, 
including oxygen content.
---------------------------------------------------------------------------

2. API and Alliance Comments
    API pointed out that the 4 wt% oxygen limit was meant as a range 
limit, taking into account the variability of densities that exist in 
gasoline across the nation. API states that ``ADM * * * twists the 
logic stated by EPA in 1994 for increasing the high end of the valid 
range for fuel oxygen content to 4.0 wt% in the RFG Complex Model. ADM 
asserts that this action by EPA meant that it had `already authorized' 
the use of E11.7 vol% gasoline-ethanol blends. This interpretation 
confuses the issue of weight percent oxygen in the final gasoline-
ethanol blend versus the volume percentage of ethanol added to the 
fuel. ADM acknowledges that the density of the base hydrocarbon blend 
stock (BOB) is critically important in the weight percent calculation, 
but then totally ignores it. To translate from 4.0 wt% oxygen to 11.7 
vol%, ADM had to have made an assumption regarding the BOB density, but 
it fails to provide any information as to the nature and/or basis for 
it.'' \132\
---------------------------------------------------------------------------

    \132\ See API Comment, Docket EPA-HQ-OAR-2009-0211-
14000.1, 2.
---------------------------------------------------------------------------

    API goes on to state that ``EPA's 1994 ruling did not `authorize' 
the use of E11.7, it simply recognized the range of BOB densities that 
exist in commerce and allowed for the resulting wt% oxygen that might 
be observed with E10. In fact, a careful reading of the 1994 regulatory 
text reveals that there is not one shred of evidence that even hints at 
the possible consideration (in 1994) of

[[Page 68142]]

gasoline-ethanol blends containing greater than 10 vol%.'' The Alliance 
specifically aligned itself with the comments on this issue from API.
3. EPA Analysis
    We do not agree with ADM's argument. The 4 wt% oxygen limit in the 
Complex Model was meant as a range limit on the weight of oxygen in the 
gasoline-ethanol blend, taking into account the variability of 
densities that exist in gasoline across the nation. It did not change 
the 10 vol% limit for ethanol use in gasoline. It recognized that the 
same volume percent of ethanol may lead to different weight percents of 
oxygen in the gasoline-ethanol blend, based on the density of the 
gasoline. The Complex Model is designed to allow a valid emissions 
projection for purposes of the Reformulated Gasoline program for the 
full range of ethanol and other blends of fuels that lawfully could be 
produced. It did not change any of the requirements that fuels 
otherwise had to meet to be a lawful fuel. Specifically, it did not 
change the requirement that gasoline-ethanol blends could only be 
lawfully produced at no higher than 10 vol% ethanol. The range of the 
Complex Model would then potentially cover the range of wt% oxygen that 
could occur for a finished gasoline-ethanol blend that had no more than 
10 vol% ethanol.

D. Fourth Argument: ADM's Argument for an E12 Waiver

1. ADM Argument
    ADM reiterated its support of the Growth Energy request and argued 
that E12 should be considered under the Growth Energy waiver 
application and that a waiver should be granted for E12. The primary 
basis of ADM's argument relied on studies and materials that had 
already been submitted under the Growth Energy waiver request 
application.
    ADM provided reference to a number of engineering papers which 
noted the similarity in effects on elastomers and plastics for E12 when 
compared to E10. ADM also made many arguments which were essentially 
the same as the arguments made for the Growth Energy application 
regarding exhaust and evaporative emissions effects, materials 
compatibility and driveability/operability on motor vehicles and small 
engines. These studies, and the arguments, essentially mirrored 
arguments already considered in the context of the Growth Energy 
application discussed above.
    ADM also utilized the survey data it had presented to attempt to 
make conclusions regarding the emissions effects of E12. For example, 
ADM tried using the Complex Model to predict emissions for E12 based 
upon changes in properties if 12 vol% ethanol was added to gasoline.
2. API, AllSAFE and Alliance Comments
    API rejected the ADM arguments. API stated that ADM's arguments 
were erroneous because the studies cited were misinterpreted, already 
presented in the Growth Energy application, or based upon flawed survey 
data. API also pointed out that the Complex Model, used for predicting 
emissions, is based only upon 1990 technology motor vehicles and that 
ADM's emissions predictions made assumptions about fuel composition 
after the addition of 12 vol% ethanol that were not supported by any 
analysis. AllSAFE also pointed out that the ADM TSD attempted to 
extrapolate the effects of E12 based on the effects of lower levels of 
ethanol content found in gasoline-ethanol blends, and argued that this 
is not an adequate substitute for the actual testing of E12.
3. EPA response
    To address ADM's arguments, we refer to our discussion of immediate 
and long-term (durability) exhaust and evaporative emissions impacts, 
materials compatibility and driveability found in Section IV regarding 
the Growth Energy waiver application. EPA's analysis above regarding 
the Growth Energy waiver request application covers the range of 
gasoline-ethanol blends that include blends above 10 vol% and no more 
than 15 vol% ethanol. Additionally, we note that ADM's analysis of 
survey data is flawed in that EPA's analysis indicates that there is no 
evidence of E12 in the marketplace today. ADM also does not present any 
process by which any effects of E12 in the marketplace could be 
evaluated. EPA agrees with API's comments regarding the use of the 
Complex Model to evaluate projected emissions changes; such use is 
inappropriate for a waiver decision. ADM's arguments are based upon 
flawed use of the survey data, inappropriately used models, issues and 
data already discussed within the context of the Growth Energy 
application, interpolation of data and effects from studies that did 
not specifically investigate the effects of E12, or studies that 
included insufficient data to make the conclusions ADM stated. 
Furthermore, many of ADM's arguments involving interpolation or 
comparison of data compared E12 to E10 where the appropriate comparison 
for meeting the criteria of a waiver would be appropriately made 
between E12 and E0. Most importantly, the data presented by ADM did not 
present any data on which a conclusion regarding the long-term 
emissions effects of E12 could be based. ADM provides no additional 
information on E12 that would change our evaluation regarding a waiver 
for gasoline-ethanol blends over 10 vol%.
    Thus, EPA concludes, after review of the information provided by 
ADM, and based on the data received regarding the E15 waiver request, 
that there is insufficient basis to support the introduction into 
commerce of E12 for use in all motor vehicles and nonroad products. 
Specifically, our analysis for gasoline-ethanol blends up to 15 vol% 
ethanol has concluded that there is insufficient data or evidence to 
grant a waiver beyond MY2007 and newer light-duty motor vehicles. ADM 
did not provide any data regarding motor vehicle exhaust or evaporative 
emissions using a 12 vol% gasoline-ethanol blended fuel. Also, EPA is 
not aware of any test data using 12 vol% gasoline-ethanol blends that 
would support this request beyond MY2007 and newer light-duty motor 
vehicles. EPA has determined that there is an inadequate demonstration 
for an E12 waiver application for MY2000 and older motor vehicles, 
heavy-duty gasoline engines and vehicles, highway and off-highway 
motorcycles and for all nonroad products. EPA is deferring a decision 
for MY2001-2006 motor vehicles.

E. Fifth Argument: E12 is ``Substantially Similar'' to Certification 
Fuel

1. ADM Argument
    ADM's final argument is that since E10 is used as an aging fuel for 
evaporative emissions service accumulation purposes in EPA's emissions 
certification regulations, E10 is a ``certification fuel'' for purposes 
of the CAA section 211(f)(1) ``substantially similar'' determination. 
ADM further asserts that E12 is ``substantially similar'' to E10 based 
on its chemical and physical properties, so EPA should revise its 
``substantially similar'' interpretive rule and increase the 
``substantially similar'' oxygen limit from 2.7% by weight to 4.25% by 
weight.
2. API, AllSAFE and Alliance Comments
    The Alliance commented that E10 is only used for certification 
purposes

[[Page 68143]]

regarding the aging of motor vehicles for evaporative emissions 
certification; E10 is not used in any of the actual emissions 
certification tests. The Alliance points out that ``ADM bases this 
argument on the fact that EPA requires manufacturers to use the highest 
gasoline-ethanol blend for evaporative system durability aging in the 
certification process. Unfortunately, ADM either misunderstands or has 
misrepresented the vehicle certification process. Importantly, this 
particular requirement applies only to evaporative emissions system 
aging; it has no connection to exhaust emission testing.'' The Alliance 
concludes that ``ADM's assertion that this fuel qualifies as a 
certification fuel for the entire fleet is simply untrue.'' \133\ 
AllSAFE's comments essentially agree with this interpretation, noting 
that ``consistent with the focus of [section] 211(f)(4) on emissions 
control devices, Congress must necessarily have intended certification 
fuels to refer to emissions certification fuels, not mileage 
accumulation fuels.'' API also agreed that the ADM submission did not 
support a conclusion that E12 is substantially similar to certification 
fuel and pointed out that ADM presents no emissions data on E12.
---------------------------------------------------------------------------

    \133\ See Alliance Comments Docket EPA-HQ-OAR-2009-
0211-14004.1, 9-10.
---------------------------------------------------------------------------

3. EPA Response
    In evaluating ADM's request to revise the definition of 
``substantially similar,'' EPA considered all certification fuels used 
for the broad range of motor vehicle model years, not just the current 
model years, and considered both the exhaust and the evaporative 
emissions certification procedures. This is because the ``substantially 
similar'' definition affects roughly 300 million motor vehicles which 
represent thousands of different designs by a wide range of 
manufacturers from around the world. These motor vehicles are in a 
transportation system and marketplace that affects the entire country. 
Based on these considerations, EPA does not believe that E10 qualifies 
as a ``certification fuel'' in the manner asserted by ADM such that it 
would be appropriate to compare E12 to E10 in determining whether E12 
is ``substantially similar'' for a CAA section 211(f)(1) determination. 
E10 is only used in one part of the certification process for certain 
newer motor vehicles. Specifically, E10 is only used in the mileage-
accumulation or aging portion of certification for evaporative 
emissions for Tier 2 vehicles. However, all exhaust and evaporative 
emissions testing for certification purposes is conducted using an E0 
fuel. Thus, E10 plays a limited role in the certification process for a 
limited subset of motor vehicles. In contrast, E0 has been and remains 
the primary fuel used in certification since it is the actual test fuel 
for all of the actual emissions standards testing required for 
certification. Thus, it would be inappropriate to consider E10 a 
``certification fuel'' for comparison with E12 in making a 
``substantially similar'' determination as requested by ADM. The proper 
comparison is between E12 and E0.
    In making a ``substantially similar'' determination, EPA generally 
evaluates the physical and chemical composition of the new fuel or fuel 
additive against our certification fuels to determine the emissions 
effects of that new fuel or fuel additive. Here, we find that E12 is 
not ``substantially similar'' physically or chemically to E0. As is 
noted in today's Decision, E12 has a substantially higher oxygen 
content than E0, and the polarity of the ethanol molecule results in 
various properties different from those of E0, such as differences in 
polarity and volatility. Such differences may affect emissions and the 
durability of motor vehicle components. Consistent with our prior 
revisions to the ``substantially similar'' definition, and prior 
``substantially similar'' determinations, we would also consider test 
data on the emissions effects of E12, as with a waiver request, in 
making this determination.\134\ For E12, we would evaluate whether the 
higher oxygen content would produce similar emission results as E0 
under the certification process. ADM provided no such data and we are 
not aware of any test data using 12 vol% ethanol blends. Based on the 
physical and chemical differences between E12 and E0, and the absence 
of a showing of the emissions impacts when using E12 versus using E0, 
EPA finds no basis for revising the ``substantially similar'' 
definition to include E12.
---------------------------------------------------------------------------

    \134\ For example, when EPA revised its substantially similar 
definition in 1991 under which the allowable oxygen content was 
raised to 2.7% by weight for certain alcohol and ether oxygenates 
(56 FR 5352, February 11, 1991), there was a long history of use and 
a large database to draw from regarding the use of oxygenates at 
these levels. As discussed above, EPA does not believe the data 
shows that E12 has, in fact, been routinely used in the marketplace 
and independent testing on E12 is not available.
---------------------------------------------------------------------------

F. EPA Conclusion

    For MY2007 and newer light-duty motor vehicles, EPA has concluded 
that there is an adequate demonstration for an E12 partial and 
conditional waiver, within the context of the Growth Energy E15 waiver 
request application, as discussed above in Section IV. For MY2000 and 
older motor vehicles, heavy-duty gasoline engines and vehicles, highway 
and off-highway motorcycles, and all nonroad products, EPA has 
concluded that there is insufficient evidence to grant a waiver. EPA is 
deferring a decision for MY2001-2006 light-duty motor vehicles.
    EPA has also concluded that ADM has not made a demonstration that 
E12 is ``substantially similar'' to certification fuels, and EPA 
declines to amend its ``substantially similar'' interpretive rule to 
include E12.

IX. Legal Issues Arising in This Partial Waiver Decision

A. Partial Waiver and Conditions of E15 Use

    As stated in EPA's notice for comment on the E15 waiver request, a 
possible outcome after the Agency reviewed the record of scientific and 
technical information may be an indication that a fuel up to E15 could 
meet the criteria for a waiver for some vehicles and engines but not 
for others. In this context, the Agency noted that one interpretation 
of section 211(f)(4) is that the waiver request could only be approved 
for that subset of vehicles or engines for which testing supports its 
use. We also stated that such a partial waiver for use of E15 may be 
appropriate if adequate measures or conditions could be implemented to 
ensure its proper use. EPA invited comment on the legal aspects 
regarding a waiver that restricted the use of E15 to a subset of 
vehicles or engines, and the potential ability to impose conditions on 
such a waiver.
    We received a number of comments expressing opposition to a partial 
waiver based on a lack of legal authority under section 211(f)(4). Some 
of those same commenters, as well as others, also stated that EPA 
should first conduct and finalize a rulemaking under section 211(c) to 
mitigate the potential for misfueling and limit the types of mobile 
sources for which E15 may be used.
    Many commenters pointed to the language in section 211(f)(4) and 
argued that the use of the word ``any'' in the phrase ``will not cause 
or contribute to a failure of any emission control device or system 
(over the useful life of the motor vehicle, motor vehicle engine, 
nonroad engine or nonroad vehicle in which such device or system is 
used) to achieve compliance by the vehicle or engine,'' means that if 
the waiver applicant has not established that the

[[Page 68144]]

use of E15 meets the waiver criteria for any type of motor vehicle or 
nonroad product, then the waiver must be denied. Noting the statutory 
provision's use of the word ``any,'' commenters asserted that should 
E15 cause or contribute to a failure of any emission control device to 
achieve compliance under any single circumstance, then the waiver 
applicant has not met the waiver criteria and the waiver must be denied 
in its entirety. Another commenter suggested that the word ``any'' 
modifies ``emission control device'' and that if an emission control 
device for any of the types of vehicles in the parenthetical language 
in section 211(f)(4) is implicated, then the waiver must be denied. 
Still another commenter suggested that ``In amending section 211(f)(4) 
in 2007 with enactment of the Energy Independence and Security Act, 
Congress expanded the types of devices for which an applicant must 
establish that a fuel or fuel additive will not cause or contribute to 
a failure while retaining the prohibition of causing or contributing to 
the failure of `any' device. With the expansion of section 211(f)(4), 
EPA is directed to only approve a waiver if all nonroad and on-road 
vehicles and engines would not be adversely affected.'' Commenters 
asserted that the provision effectively required that there should be a 
``general purpose'' fuel. The commenters noted that EPA would 
contradict this direction if it failed to address impacts on any 
portion of the vehicles or engines. Essentially, the implication of all 
of these assertions is that EPA can only grant a waiver if all emission 
control devices in all types of mobile sources listed in the statute 
will not be adversely impacted by E15.
    We also received several comments suggesting that if EPA desires to 
grant a partial waiver, it must first proceed under section 211(c) with 
a separate and full rulemaking to analyze the costs, benefits, 
necessary lead time, and the technological feasibility of a partial 
waiver. The commenters stated that this rulemaking should also include 
an analysis of the partial prohibition and controls on the use of E15 
and include detailed regulatory requirements to ensure adequate control 
measures and to mitigate misfueling with E15. Commenters stated that 
the inclusion in section 211(f)(4) of 270 days by which EPA must act 
does not allow enough time to address all the necessary marketing and 
other issues and thus Congress could not have envisioned a partial 
waiver.
    Growth Energy and ACE stated that the Agency has the authority to 
grant a partial waiver or that EPA's authority for a partial waiver is 
a permissible interpretation of CAA authority, but that the evidence 
suggests a waiver for all vehicles and engines on the road today is 
appropriate.
    We also received comment noting that the prohibition in section 
211(f)(1) only applies to the use of any fuel or fuel additive in 
light-duty motor vehicles, indicating that the grant of the waiver of 
this prohibition under section 211(f)(4) is not dependent on findings 
with respect to nonroad products. The commenter further noted that 
although EPA has the authority and discretion to look at the effect of 
a fuel or fuel additive on nonroad products (in the context of 
examining impacts on motor vehicles), nothing in the statute or 
legislative history indicates that the amendment to section 211(f)(4) 
sought to limit EPA's discretion for issuing a waiver for motor 
vehicles. In light of Congress' decision in the Energy Independence and 
Security Act of 2007 to substantially increase the Renewable Fuel 
Standard Program's volume mandates, this commenter suggests that 
reading the word ``any'' in section 211(f)(4) as amended by the 2007 
Energy Act to apply to anything more than any emission control systems 
on the subset of motor vehicles would be at odds with congressional 
intent.
    Regarding EPA's authority to impose conditions on a waiver, we 
received comment stating that EPA has the authority to grant waivers 
subject to a broad range of conditions that ensure that the fuel or 
fuel additive will not cause or contribute to the failure of any 
emission control device or system. One commenter pointed to four of the 
eleven waivers EPA has issued since 1977 that have placed conditions on 
a waiver.\135\ In EPA's first waiver decision in 1978, the Agency 
discussed its authority to grant conditional waivers, noting that it 
may grant a waiver ``conditioned on time or other limitations,'' so 
long as ``the requirements of section 211(f)(4) are met.'' \136\ This 
commenter also points to the legislative history of section 211(f)(4) 
which makes clear that EPA has authority to grant conditional waivers. 
The 1977 Senate Report regarding section 211(f)(4) states: ``The 
Administrator's waiver may be under such conditions, or in regard to 
such concentrations, as he deems appropriate consistent with the intent 
of this section.'' Senate Report No. 95-125, 95th Congress, 1st Session 
91 (1977), pg 91.
---------------------------------------------------------------------------

    \135\ See Sun Petroleum Products Co.; Conditional Grant of 
Application for Fuel Waiver for 0-5.5% methanol/TBA, 44 FR 37,074 
(June 25, 1979); E.I.DuPont de Nemours & Co.; Conditional Grant of 
Application for Fuel Waiver for 5% methanol/2% cosolvent alcohols, 
specified corrosion inhibitor, Decision Document, 51 FR 39,800 (Oct. 
31, 1986); Texas Methanol Corp.; Conditional Grant of Application 
for Fuel Waiver for Octamix (5% methanol, 2.5% cosolvent alcohols, 
specified corrosion inhibitor), Decision Document, 53 FR 33,846 
(Sept. 1, 1988); Sun Refining and Marketing Co.; Conditional Grant 
of Application for Fuel Waiver for 15% MTBE, Decision Document, 53 
FR 33,846 (Sept. 1, 1988). These conditions have taken various 
forms, from restrictions on the chemical composition and additive 
concentration of the waiver fuel and requirements to meet ASTM and 
seasonal volatility standards, to specific testing protocols and 
mandates that a fuel manufacturer take ``all reasonable 
precautions'' to guard against unauthorized uses of the waiver fuel.
    \136\ See Ethyl Corp., Denial of Application for Fuel Waiver for 
MMT (1/16 and 1/32 gpg Mn), 43 FR 41,424 (Sept. 18, 1978).
---------------------------------------------------------------------------

    The issue before EPA is whether it is reasonable to interpret 
section 211(f)(4) as authorizing EPA to grant a partial waiver under 
appropriate conditions, as in today's decision. If Congress spoke 
directly to the issue and clearly intended to not allow such a partial 
waiver, then EPA could not do so. However, if Congress did not indicate 
a precise intention on this issue, and we believe that section 
211(f)(4) is ambiguous in this regard, then a partial waiver with 
appropriate conditions would be authorized if it is a reasonable 
interpretation. EPA has considered the text and structure of this 
provision, as well as the companion prohibition in section 211(f)(1), 
and believes it is a reasonable to interpret section 211(f)(4) as 
providing EPA with discretion to issue this partial waiver with 
appropriate conditions.
    It is important to put section 211(f)(4) in its statutory context. 
The prohibition in section 211(f)(1) and the waiver provision in 
section 211(f)(4) should be seen as parallel and complementary 
provisions. Together they provide two alternative paths for entry into 
commerce of fuels and fuels additives. The section 211(f)(1) 
prohibition allows fuels or fuel additives to be introduced into 
commerce as long as they are substantially similar to fuel used to 
certify compliance with emissions standards, and the section 211(f)(4) 
waiver provision allows fuels or additives to be introduced into 
commerce if they will not cause or contribute to motor vehicles and 
nonroad products to fail to meet their applicable emissions standards. 
EPA's authority to issue a waiver is coextensive with the scope of the 
prohibition--whatever is prohibited can also be the subject of a waiver 
if the criteria for granting a waiver are met. In addition, the 
criteria for each provision have similar goals. They are aimed at 
providing flexibility to the fuel and fuel additive industry by 
allowing a variety

[[Page 68145]]

of fuels and fuel additives into commerce, without limiting fuels and 
additives to those products that are identical to those used in the 
emissions certification process. This flexibility is balanced by the 
goal of limiting the potential reduction in emissions benefits from the 
emissions standards, even if some may occur because a fuel or fuel 
additive is not identical to certification fuel or it leads to some 
emissions increase but not a violation of the standards. Together, 
these are indications that these provisions are intended to be parallel 
and complementary provisions.
    The section 211(f)(1) prohibition has evolved over time. Initially 
it was adopted in the 1977 amendments of the Act, and was much more 
limited in nature. It applied only to fuels or fuel additives for 
general use, and was also limited to fuels or fuel additives for use in 
light-duty motor vehicles. EPA interpreted this as applying to bulk 
fuels or fuel additives for use in unleaded gasoline. The prohibition 
did not apply to other gasoline, or to diesel fuels or alternative 
fuels, or to fuel additives that were not for bulk use. It was thus 
relevant only to the subset of motor vehicles designed to be operated 
on unleaded gasoline.
    In 1990 Congress amended the prohibition and broadened it. It now 
applies to ``any fuel or fuel additive for use by any person in motor 
vehicles manufactured after model year 1974 which is not substantially 
similar to any fuel or fuel additive utilized in the certification of 
any model year 1975, or subsequent model year, vehicle or engine.'' 
This extended the scope of the prohibition to apply to all gasoline, to 
diesel fuel, and to other fuels such as E85. However, the concept of 
applying this prohibition based on the relevant subset of vehicles 
continues. For example, a diesel fuel that is introduced into commerce 
for diesel vehicles does not need to be substantially similar to 
gasoline fuel or other fuels intended for non-diesel vehicles. This is 
so even though Congress used the phrase ``substantially similar to any 
fuel or fuel additive utilized in the certification of any * * * 
vehicles or engine'' (emphasis supplied). Clearly Congress did not 
intend the use of the term ``any'' in the prohibition to always mean 
all motor vehicles or 100% of the motor vehicle fleet. Diesel fuel does 
not need to be substantially similar to the fuel used in the 
certification of gasoline vehicles, and E85 does not need to be 
substantially similar to fuel used in the certification of diesel 
vehicles. For example, manufacturers who want to introduce E85 fuel or 
fuel additives for E85 look to the certification fuel that was used for 
the subset of vehicles that were certified for use on E85.
    In some limited cases, EPA has approved a fuel additive as 
substantially similar even when it is introduced into commerce for use 
in just one part of a single vehicle manufacturer's product line. For 
example, where a fuel additive is considered part of the emissions 
control system for a vehicle model, and is certified that way by the 
vehicle manufacturer, then it is not a violation of the substantially 
similar prohibition for manufacturers of the fuel additive to introduce 
it into commerce for use in just that very small subset of vehicles as 
long as it is substantially similar to the fuel additive used in the 
certification of that vehicle model.\137\ In all of these cases, broad 
to narrow subsets of motor vehicles can be considered when deciding 
whether the introduction of a fuel or fuel additive for use by that 
subset of motor vehicles is in compliance with the prohibition.
---------------------------------------------------------------------------

    \137\ See 54 FR 4834 (November 22, 1989).
---------------------------------------------------------------------------

    EPA has in fact applied this construct of this provision in all of 
its past waiver decisions. EPA has previously said that it is virtually 
impossible for an applicant to demonstrate that a new fuel or fuel 
additive does not cause or contribute to any vehicle or engine failing 
to meet its emissions standards. Instead, EPA and the courts allow 
applicants to satisfy this statutory provision through technical 
conclusions based on appropriately designed test programs and properly 
reasoned engineering judgment.\138\ For example, the sample size in 
these test programs does not include all motor vehicles in the current 
fleet; the sample size is comprised of a statistically significant 
sample of motor vehicles that, once tested, will enable the applicant 
to extrapolate its findings and make its demonstration. EPA believes 
that this practice of focusing on a relatively small but representative 
subset of motor vehicles does not violate the statutory use of the word 
``any'' in this provision.
---------------------------------------------------------------------------

    \138\ See 44 FR 10530 (February 21, 1979); Motor Vehicle Mfrs. 
Ass'n. et. al. v. EPA, 768 F.2d 385 (DC Cir. 1985).
---------------------------------------------------------------------------

    Since the waiver and the substantially similar provisions are 
parallel and complementary provisions, this clearly raises the question 
of whether a waiver can also be based on a subset of motor vehicles 
meeting the criteria for a waiver. EPA believes the text and 
construction of section 211(f)(4) supports this interpretation.
    First, the term ``waive'' as used in section 211(f)(4) is not 
modified in any way. Normally one would read this provision as a 
general grant of waiver authority, encompassing both partial and total 
waivers, as long as the waiver criteria are met. Second, the waiver 
criteria, like section 211(f)(1), have evolved over time. In 1977, the 
criteria were phrased as providing for a waiver when the fuel or fuel 
additive ``will not cause or contribute to a failure of any emission 
control device or system (over the useful life of any vehicle in which 
such device or system is used) to achieve compliance by the vehicle 
with the emission standards to which it has been certified.'' This was 
not modified in the 1990 amendments. In EISA 2007, Congress amended the 
waiver criteria, providing for a waiver when the fuel or fuel additive 
will not ``cause or contribute to a failure of any emission control 
device or system (over the useful life of the motor vehicle, motor 
vehicle engine, nonroad engine or nonroad vehicle in which such device 
or system is used) to achieve compliance by the vehicle or engine with 
the emission standards to which it has been certified.'' Congress uses 
the term ``any'' in section 211(f)(4), as it does in several places in 
section 211(f)(1). One use of the term ``any'' was deleted in the 2007 
amendments, when the parenthetical was broadened to include 
consideration of nonroad engines and nonroad vehicles as well as motor 
vehicles. The term ``any,'' however, has always been paired with the 
consistent use of the singular when referring to vehicles and emissions 
control systems--``the vehicle'' and the emissions standards to which 
``it'' is certified, and the ``vehicle in which such device or system 
is used.'' Certainly Congress did not state that the applicant has to 
demonstrate that the fuel or fuel additive would not cause any devices 
or control systems, over the useful lives of the motor vehicles or 
nonroad products in which they are used, to fail to achieve the 
emissions standards to which they are certified. If Congress had stated 
that, then it would be clear, as one commenter suggests, that EPA 
should only grant a waiver if all emission control devices in all the 
types of mobile sources listed would not be impacted by the fuel. But 
Congress did not state that.\139\
---------------------------------------------------------------------------

    \139\ New York v. EPA, 443 F.3d 880, (DC Cir. 2006) concerned 
the use of the word ``any'' in a different provision in the Clean 
Air Act and does not lead to any different conclusion here. The 
Court found that the statutory language, context, and legislative 
intent of that provision required an expansive meaning of the phrase 
``any physical change'' in the definition of ``modification'' in CAA 
section 111(a)(4). EPA is also applying the term ``any'' in an 
expansive manner, but in the context of a subset of motor vehicles. 
This takes into account the context, text, and purposes of both 
section 211(f)(1) and (f)(4), which, as discussed above, envisions 
use of such subsets of vehicles.

---------------------------------------------------------------------------

[[Page 68146]]

    Several aspects of section 211(f) thus support the reasonableness 
of EPA's interpretation. The prohibition and the waiver provisions are 
properly seen as parallel and complementary, and the prohibition 
properly can be evaluated in terms of appropriate subsets of motor 
vehicles, notwithstanding the use of the term ``any'' to modify several 
parts of the prohibition. This clearly raises the concept of also 
applying the waiver criteria to appropriate subsets of motor vehicles. 
``Waive'' is reasonably seen as a broad term that generally encompasses 
a total and a partial waiver, as well as the discretion to impose 
appropriate conditions. The criteria for a waiver also refer to ``any'' 
but the entire provision does not provide a clear indication that 
Congress intended to preclude consideration of subsets of motor 
vehicles when considering an application for a waiver. Finally, a 
partial waiver gives full meaning to all of the provisions at issue.
    For example, in this case, granting a partial waiver means that E15 
can be introduced into commerce for use in a subset of motor vehicles, 
MY2007 and newer light-duty motor vehicles, and only for use in those 
motor vehicles. For those motor vehicles, EPA is not making a finding 
of it being substantially similar, but E15 has been demonstrated to not 
cause or contribute to these motor vehicles exceeding their applicable 
emissions standards. It will also not cause any other motor vehicles or 
any other on or off-road vehicles or engines to exceed their emissions 
standards since it may not be introduced into commerce for use in any 
other motor vehicles or any other vehicles or engines. Thus, under a 
partial waiver, as the commenter suggested, all emission control 
devices in all the types of mobile sources listed will not be adversely 
impacted by the fuel. It can only be introduced into commerce for those 
vehicles and engines where it has been shown not to cause emissions 
problems; for other types of mobile sources, it cannot be introduced 
into commerce for use in such vehicles and engines. In concept, 
therefore, the combination of this partial waiver, with appropriate 
conditions, and partial retention of the substantially similar 
prohibition, has the same effect as when the criteria for a total 
waiver has been met--the fuel or fuel additive will only be introduced 
into commerce for use in a manner that will not cause violations across 
the fleet of motor vehicles and nonroad products. It can only be 
introduced into commerce for use in vehicles and engines where it has 
been shown not to cause violations of the emissions standards, and may 
not be introduced into commerce for use in other vehicles or engines.
    EPA recognizes that a partial waiver raises implementation issues 
regarding how to ensure that a fuel or fuel additive is only introduced 
into commerce for use in the specified subset of motor vehicles. The 
discretion to grant a partial waiver includes the authority and 
responsibility for determining and imposing reasonable conditions that 
will allow for effective implementation of a partial waiver. In this 
case, EPA has conditioned the waiver on various actions that the fuel 
or fuel additive manufacturer must take. The actions are all designed 
to help ensure that E15 is only used by the MY2007 and later motor 
vehicles specified by the waiver. If a fuel or fuel additive 
manufacturer does not comply with the conditions, then EPA will 
consider their fuel or fuel additive as having been introduced into 
commerce for use by a broader group of vehicles and engines than is 
allowed under the waiver, constituting a violation of the section 
211(f)(1) prohibition.
    EPA recognizes, as several commenters have suggested, that EPA can 
impose waiver conditions only on those parties who are subject to the 
section 211(f)(1) prohibition and the waiver of that prohibition. These 
parties are the fuel and fuel additive manufacturers. Waiver conditions 
can apply to them, but cannot apply directly to various downstream 
parties, such as a retailer who is not also a fuel or fuel additive 
manufacturer. This is one reason EPA is also proposing specific 
misfueling mitigation measures in a separate rulemaking under section 
211(c), to minimize any risk of misfueling. This will also facilitate 
compliance with certain of the waiver conditions.
    Many commenters suggested that before EPA can grant a waiver of any 
type under section 211(f)(4), the Agency must first issue a rule under 
section 211(c) that addresses the proper prohibition and control of a 
new fuel or fuel additive to the extent necessary before such fuel or 
fuel additive is permitted under section 211(f)(4). However, there is 
no mention of timing in these two statutory provisions and EPA believes 
it appropriate to consider the merits of a section 211(f)(4) waiver 
request on its face.

B. Notice and Comment Procedures

    Section 211(f)(4) requires that EPA grant or deny an application 
for a waiver ``after public notice and comment.'' As discussed in 
detail in Section II.B., EPA published notice of receipt of the waiver 
application on April 21, 2009 and provided the public with an extended 
public comment period of 90 days to submit comments on the waiver 
application. EPA received approximately 78,000 comments during the 
public comment period.
    Commenters have asked the Agency for a second public comment period 
so that they may review and comment on the testing data generated by 
the DOE Catalyst Study. An additional comment period is neither 
necessary nor required by law. EPA has continued to accept comments on 
the waiver application even after closure of the formal comment period, 
and has considered comments received even as late as early October. All 
of these comments have been included in the public docket and thus made 
available to all members of the public for review and comment. Many 
commenters have taken the opportunity to submit additional comments in 
light of other comments and information included in the docket.
    Data from ongoing vehicle testing programs, including DOE's data, 
have been included in the public docket shortly after EPA has received 
the information, making it available for the public's review and 
comment as soon as practicable. Many commenters providing substantive 
feedback on the waiver application have been involved in one or more of 
the various testing programs, including DOE's, and consequently have 
had immediate access to the data. Comments submitted to the docket 
reflect that commenters have had access to and an opportunity to 
consider the various testing information cited by EPA in the waiver 
decision.
    EPA has also held numerous meetings with stakeholders in which 
stakeholders have shared their comments, concerns and additional data 
regarding the waiver request. Information received at these meetings 
has been made available in the public docket.
    In view of the access that has been made available to the relevant 
information in the public docket, EPA believes no need exists for a 
second public comment period. Moreover, EPA has already satisfied its 
notice and comment requirements for this Decision and has no legal 
obligation to provide an additional notice and comment period. EPA 
satisfied its procedural requirements through the public notice and 
comment period EPA already provided (see Section II.B) and nothing

[[Page 68147]]

in section 211(f)(4) mandates a second comment period.\140\
---------------------------------------------------------------------------

    \140\ This Decision is distinguishable from the outcome in Air 
Transport Ass'n of America v. FAA, 169 F.3d 1 (DC Cir. 1999). In ATA 
v. FAA, the DC Circuit found that the FAA's reliance on ex parte 
information submitted after closure of the public comment period 
violated the applicable notice and comment period requirements. The 
Court's holding was primarily based on the private nature of the 
information. ATA, 169 F.3d at 8 (``The important point is that 
because the transmission of this information * * * was never public, 
petitioner did not have a fair opportunity to comment on it.''). In 
contrast, the data relied upon by the Agency in this waiver decision 
were included in the pubic docket for the decision prior to its 
issuance.
---------------------------------------------------------------------------

C. ``Useful Life'' Language in Section 211(f)(4)

    In making any waiver decision, section 211(f)(4) indicates that EPA 
should ensure that any new fuel or fuel additive will not cause or 
contribute to a vehicle or engine failing to meet its emissions 
standards over its useful life. The Clean Air Act authorizes EPA to 
define ``useful life'' for the vehicles and engines EPA regulates, see 
CAA sections 202(d) and 213(d), and EPA includes those definitions in 
the same regulations that contain the emission standards for those 
vehicles and engines.
    As discussed above, the construction of section 211(f) indicates 
that the meaning of section 211(f)(4) is best determined by reading it 
in context with the substantially similar prohibition in section 
211(f)(1). Section 211(f)(1) contains the general prohibition against 
introducing fuels and fuel additives that are not ``substantially 
similar'' to the certification fuels used for certifying 1975 and 
subsequent model year motor vehicles with EPA's emissions standards. 
The prohibition is expansive, effectively protecting MY1975 and newer 
motor vehicles from using fuels or fuel additives that could 
detrimentally impact their ability to meet their emissions standards. 
In enacting this provision, Congress stated that ``the intention of 
this new subsection [(f)] is to prevent the use of any new or recently 
introduced additive in those unleaded grades of gasoline required to be 
used in 1975 and subsequent model year automobiles which may impair 
emission performance of vehicles * * *.'' Senate Report (Environment 
and Public Works Committee) No. 95-127 (To accompany S. 252), May 10, 
1977, pg 90. This general prohibition equally protects all MY1975 and 
newer motor vehicles from the use of new fuels and fuel additives that 
the motor vehicles may not have been designed to use and could degrade 
their emissions control systems.
    The section 211(f)(1) prohibition is designed to protect the 
emissions control systems for the breadth of motor vehicles in the 
fleet, whether they are within or outside the regulatory useful life of 
an applicable emissions standard. This broad scope recognizes that the 
emissions control system of a motor vehicle continues to operate and 
provide important emissions benefits throughout the actual life of the 
motor vehicle, including the many miles or years that it may be 
operated past its regulatory useful life. Thus, it is important that 
the motor vehicle continue to use fuels that do not interfere with the 
continued normal operation of the emissions control system after its 
regulatory useful life. That normal operation may not ensure that the 
motor vehicle stills meets the applicable emissions standards, but it 
is typically such that it provides significant emissions control 
benefits for the country. Congress recognized this and prohibited entry 
into commence of fuels or fuel additives that could interfere with this 
result, no matter how old the motor vehicle. Congress also recognized 
this goal by prohibiting tampering anytime during the actual life of 
the motor vehicle, not just during its regulatory useful life. See CAA 
section 203(a)(3).\141\
---------------------------------------------------------------------------

    \141\ Additionally, Congress authorized EPA to set separate in-
use standards (section 202(g)) and to order recall of motor vehicles 
not meeting those standards (section 207(c)(1)), further 
illustrating its intent that emissions reductions continue at all 
times during the actual life of motor vehicles. Also see General 
Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (DC Cir. 1984) (finding 
that section 207(c)(1) enables EPA to order a recall of all motor 
vehicles in a class--even those beyond their statutory useful life--
as long as EPA can demonstrate that those motor vehicles were not 
meeting their emissions standards while within their useful life.)
---------------------------------------------------------------------------

    In promulgating CAA section 211(f)(4), Congress provided EPA with 
the authority to waive the prohibition for particular fuels or fuel 
additives, but only when the fuel or fuel additive manufacturer 
demonstrated that motor vehicles could still meet their emissions 
standards while using the particular fuel or fuel additive. See Senate 
Report (Environment and Public Works Committee) No. 95-127, May 10, 
1977, pg 91 (``The waiver process * * * was established * * * so that 
the prohibition could be waived, or conditionally waived, rapidly if 
the manufacturer of the additive or the fuel establishes to the 
satisfaction of the Administrator that the additive, whether in certain 
amounts or under certain conditions, will not be harmful to the 
performance of emission control devices or systems.''). While section 
211(f)(4) refers to the ``useful life'' of the motor vehicle, that is 
part of the reference to causing or contributing to the noncompliance 
of the motor vehicle with its emission standards, as the emissions 
standards are defined in part by the useful life provision. See House 
Conference Report No. 95-564 (To accompany H.R. 6161), Aug. 3, 1977, pp 
160-162 (``The conferees also intend that the words 'cause or 
contribute to the failure of an emission control device or system to 
meet emission standards over its useful life to which it has been 
certified pursuant to section 206' mean the noncompliance of an engine 
or device with emission levels to which it was certified, taking into 
account the deterioration factors employed in certifying the engine.'') 
This indicates that Congress was not trying to limit the scope of the 
waiver provision, but instead was using language normally used when 
referring to the emission standards. Congress wanted to ensure that new 
fuels or fuel additives allowed into the marketplace through a waiver 
would be the kinds of fuels or fuel additives that are consistent with 
motor vehicles meeting their applicable emissions standards.
    In that context, EPA looks at whether the fuel or fuel additive 
would lead to an exceedance of the emissions standards if it was used 
during the motor vehicle's regulatory useful life. If that is the case, 
then the fuel should not be entered into commerce for use by that motor 
vehicle anytime during its actual life--just as the section 211(f)(1) 
prohibition ensures that motor vehicles will not use fuel or fuel 
additives anytime during their actual lives that are not substantially 
similar to the fuel or fuel additives used to certify their compliance 
with the emissions standards over their regulatory useful lives. This 
gives a reasonable meaning to the waiver provision and keeps it 
parallel and complementary to the section 211(f)(1) provision to which 
it is tied. EPA believes this reflects Congress' intention and avoids 
an unintended consequence that would be far at odds with the apparent 
purpose of sections 211(f)(1) and (4). If EPA were limited to only 
considering motor vehicles within their regulatory useful lives, this 
could require the Agency to approve waiver requests for new fuels and 
fuel additives even if they were clearly known to seriously degrade 
emission control devices or systems and cause large emissions increases 
in older motor vehicles, which comprise a significant percentage of the 
entire fleet. Allowing such a detrimental fuel or fuel additive into 
the marketplace is clearly contrary to the purposes of section 211(f) 
which is designed as a whole to protect the benefits of the emissions 
control

[[Page 68148]]

standards over the actual life of the motor vehicles.

X. Waiver Conditions

    The conditions placed upon the partial waiver EPA is granting today 
fall into two categories. The first category concerns properties of the 
ethanol used to manufacture E15 and the properties of the final E15 
blend. The second category of conditions concerns mitigation of 
potential misfueling with E15. Any party wishing to utilize this 
partial waiver for E15 must satisfy all of these conditions to be able 
to lawfully register and introduce E15, or ethanol used to make E15, 
into commerce.

A. Fuel Quality Conditions

    As requested by Growth Energy in their waiver request application, 
and as is industry practice, the partial waiver for E15 contains a 
condition that requires use of ethanol which meets industry 
specifications as outlined in ASTM International D4806.\142\ 
Additionally, as discussed above in our evaluation of the potential 
effect of E15 on evaporative emissions, the partial waiver for E15 
contains a condition that E15 must meet a maximum RVP of 9.0 psi during 
the summertime volatility season, May 1 through September 15.
---------------------------------------------------------------------------

    \142\ ASTM International D4806-10, Standard Specification for 
Denatured Fuel Ethanol for Blending with Gasolines for Use as 
Automotive Spark-Ignition Engine Fuel.
---------------------------------------------------------------------------

B. Misfueling Mitigation Conditions and Strategies

    EPA believes that minimizing the possibility of misfueling of E15 
into vehicles or engines for which it is not approved would best be 
achieved through implementation of misfueling mitigation requirements 
as proposed by EPA today in a separate action. Nevertheless, EPA is 
allowing the use of the partial waiver prior to the finalization of 
such requirements provided the fuel or fuel additive manufacturer using 
the partial waiver can implement the conditions described below prior 
to introducing E15 into commerce. Any fuel or fuel manufacturer wishing 
to utilize this partial waiver must submit a plan for EPA approval for 
implementing these misfueling mitigation conditions. EPA will determine 
if the plan is sufficient to address these conditions.
    We believe that there are four important components to an effective 
misfueling mitigation strategy for reducing the potential for 
misfueling with E15. First, effective labeling is a key factor. 
Labeling is needed to inform consumers of the potential impacts of 
using E15 in vehicles and engines not approved for its use, to mitigate 
the potential for intentional and unintentional misfueling of these 
vehicles and engines. Labeling is also done at the point of sale where 
the consumer most likely will be choosing which fuel to use. Second, 
retail stations and wholesale purchaser-consumers need assurance 
regarding the ethanol content of the fuel that they purchase so they 
can direct the fuel to the appropriate storage tank and properly label 
their fuel pumps. The use of proper documentation in the form of PTDs 
has proven to be an effective means of both ensuring that retail 
stations know what fuel they are purchasing and as a possible defense 
for retail stations in cases of liability in the event of a violation 
of EPA standards. Third, labeling and fuel sampling surveys are 
necessary to ensure that retail stations are complying with labeling 
requirements, ethanol blenders are not blending more than the stated 
amount of ethanol on PTDs, and assuring downstream compliance for fuel 
refiners. The Agency has used this general strategy to implement 
several fuel programs over the past thirty years, including the 
unleaded gasoline program, the RFG program, and the diesel sulfur 
program. These strategies are conditions of use associated with today's 
waiver decision and are described below.
    While not a condition of today's waiver decision, the fourth 
component of an effective misfueling mitigation strategy is effective 
public outreach and consumer education. Outreach to consumers and 
stakeholders is critical to mitigate misfueling incidents that can 
result in increased emissions and vehicle damage. Consumers need to be 
engaged through a variety of media to ensure that accurate information 
is conveyed to the owners and operators of vehicles and engines.
    EPA recognizes that it may be difficult to fully implement all of 
these misfueling mitigation strategies prior to finalization of today's 
proposed rule. However, any fuel or fuel additive manufacturer wishing 
to introduce E15 into commerce before EPA finalizes its misfueling 
mitigation measures rule will need to demonstrate to EPA its ability to 
meet the following misfueling mitigation conditions of the partial 
waiver:
1. Fuel Pump Dispenser Labeling
    Any fuel or fuel additive manufacturer using this partial waiver 
must ensure the labeling of any dispensers of this gasoline-ethanol 
blend. The label would have to indicate that the fuel contains up to 15 
vol% ethanol--that is, the fuel is gasoline containing greater than 10 
vol% ethanol and up to 15 vol% ethanol.
    Based on the Agency's experience with fuel pump labeling for Ultra-
Low Sulfur Diesel (ULSD) and Low Sulfur Diesel (LSD) (see 40 CFR 
80.570), there are four important elements to an effective label for 
misfueling. The language of the E15 label must contain four components: 
(1) An information component; (2) a legal approval component; (3) a 
technical warning component; and (4) a legal warning component. 
Together, these four components highlight the critical information 
necessary to inform consumers about the impacts of using E15.
    The labeling requirements EPA is proposing today in a separate 
proposed rule concurrent with today's partial waiver decision would 
place labeling requirements on retail stations that dispense E15. 
Compliance with these labeling requirements, when finalized, will 
satisfy this fuel pump dispenser labeling condition. If a fuel or fuel 
additive manufacturer chooses to utilize this partial waiver prior to 
finalization of today's proposed rule, a label designed to meet the 
components described in today's proposed rule and approved by EPA can 
satisfy this fuel pump dispenser labeling condition of this partial 
waiver decision.
2. Fuel Pump Labeling and Fuel Sample Survey
    Any fuel or fuel additive manufacturer using this partial waiver 
must participate in a survey, approved by EPA, of compliance at fuel 
retail facilities conducted by an independent surveyor. An EPA-approved 
survey plan is to be in place prior to introduction of E15 into the 
marketplace and the results of the survey must be provided to EPA for 
use in its enforcement and compliance assurance activities.
    One of two options may be utilized to meet this condition of this 
partial waiver decision:
    For Survey Option 1, a fuel or fuel additive manufacturer may 
individually survey labels and ethanol content at retail stations 
wherever its gasoline, ethanol, or ethanol blend may be distributed if 
it may be blended as E15. EPA must approve this survey plan before it 
is conducted by the fuel or fuel additive manufacturer.
    For Survey Option 2, a fuel or fuel additive manufacturer may 
choose to conduct the survey through a nationwide program of sampling 
and testing designed to provide oversight of all retail stations that 
sell gasoline. Details of the survey requirements are

[[Page 68149]]

similar to those included in the ULSD and RFG programs. A fuel or fuel 
additive manufacturer may conduct this survey as part of a consortium, 
as discussed in the proposed rule.
    EPA is proposing more formal requirements for a national E15 
labeling and ethanol content survey in today's notice of proposed 
rulemaking. If a fuel or fuel additive manufacturer chooses to utilize 
this partial waiver prior to finalization of today's proposed rule, a 
survey designed to satisfy the components described in today's proposed 
rule and approved by EPA will be deemed to be sufficient to satisfy 
this fuel pump labeling and fuel sample survey condition of this 
partial waiver decision.
3. Proper Documentation of Ethanol Content on Product Transfer 
Documents
    Today's proposed rule would require that parties that transfer 
blendstocks, base gasoline for oxygenate blending, and/or finished 
gasoline that contains ethanol content greater than 10 vol% and no more 
than 15 vol% include the ethanol concentration of the fuel in volume 
percent. Product transfer documents (PTDs) are customarily generated 
and used in the course of business and are familiar to parties who 
transfer or receive blendstocks or base gasoline for oxygenate blending 
and oxygenated gasoline. Since we are approving a partial waiver for 
the introduction into commerce of E15 for use in only MY2007 and newer 
motor vehicles, the PTDs that accompany the transfer of base gasoline/
gasoline blendstocks used for oxygenate blending and for oxygenated 
gasoline must include the ethanol content of the fuel to help avoid 
misfueling. Downstream of the terminal where ethanol blending takes 
place, information on the maximum ethanol concentration in the ethanol 
blend is needed to help ensure that fuel shipments are delivered into 
the appropriate storage tanks at retail and fleet gasoline dispensing 
facilities.\143\ A gasoline retail station and fleet dispensing 
facility must know the ethanol content of a fuel shipment so that fuel 
pumps may be correctly labeled.
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    \143\ Evaluations are underway which may facilitate the shipment 
of gasoline-ethanol blends by pipeline to terminals. Hence, parties 
upstream of the terminal may need to include information on maximum 
ethanol concentration on product PTDs in the future.
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    In the event that there is a period of time when this partial 
waiver is utilized prior to finalization of today's proposal, a PTD 
program designed to satisfy the elements of today's proposed rule will 
be sufficient to satisfy the PTD condition of this partial waiver 
decision.
4. Public Outreach
    While not a formal condition of this partial waiver, EPA recognizes 
the importance of outreach to consumers and stakeholders to misfueling 
mitigation. The potential for E15 misfueling incidents may exist for 
several reasons. For example, consumers may be inclined to misfuel when 
E15 costs less than E10 or E0. Additionally, in some situations, it may 
be more difficult to find fuels other than E15. EPA thus encourages 
fuel and fuel additive manufacturers to conduct a public outreach and 
education program prior to any introduction of E15 into commerce.
    A recent example of outreach to consumers and stakeholders that may 
be applicable is coordinated work done in support of the ULSD program. 
ULSD was a new fuel with the possibility of consumer misfueling that 
could result in engine damage. With ULSD, the fuel industry trade 
association API took the lead in working with stakeholders to establish 
the Clean Diesel Fuel Alliance (CDFA), a collaboration of public and 
private organizations designed to ensure a smooth program transition by 
providing comprehensive information and technical coordination. The 
organizations represented in the CDFA include engine manufacturers, 
fuel retailers, trucking fleets, DOE and EPA. CDFA efforts to educate 
ULSD users include developing technical guidance and educational 
information, including a Web site (http://www.clean-diesel.org), as 
well as serving as a central point of contact to address ULSD-related 
questions.
    The CDFA outreach model could prove beneficial in this case. EPA 
anticipates that all parties involved in bringing higher gasoline-
ethanol blends to market will participate in a coordinated industry-led 
consumer education and outreach effort. In the context of this program, 
potential key participants include ethanol producers, fuel and fuel 
additive manufacturers, automobile, engine and equipment manufacturers, 
States, non-governmental organizations, parties in the fuel 
distribution system, EPA, DOE, and USDA. Potential education and 
outreach activities a public/private group could undertake include 
serving as a central clearinghouse for technical questions about E15 
and its use, promoting best practices to educate consumers or mitigate 
misfueling instances, and developing education materials and making 
them available to the public.

XI. Reid Vapor Pressure

    Commenters questioned whether E15 would qualify for the 1.0 psi RVP 
waiver permitted for E10 under CAA section 211(h). As explained in the 
misfueling mitigation measures proposed rule, EPA interprets the 1.0 
psi waiver in CAA section 211(h) as being limited to gasoline-ethanol 
blends that contain 10 vol% ethanol. Please see the preamble of that 
proposed rule for more discussion of this issue and for an opportunity 
to submit comments on this issue.

XII. Partial Waiver Decision and Conditions

    Based on all the data and information described above, EPA has 
determined that, subject to compliance with all of the conditions 
below, a gasoline produced with greater than 10 vol% and no more than 
15 vol% ethanol (E15) will not cause or contribute to a failure of 
certain motor vehicles to achieve compliance with their emission 
standards to which they have been certified over their useful lives.
    Therefore, the waiver request application submitted by Growth 
Energy for its gasoline-ethanol blend with up to 15 vol% ethanol is 
partially and conditionally granted as follows:
    (1) The partial waiver applies only to fuels or fuel additives 
introduced into commerce for use in MY2007 and newer light-duty motor 
vehicles, light-duty trucks, and medium duty passenger vehicles 
(hereafter ``MY2007 and newer light-duty motor vehicles'') as certified 
under Section 206 of the Act. The waiver does not apply to fuels or 
fuel additives introduced into commerce for use in pre-MY2007 motor 
vehicles, heavy-duty gasoline engines or vehicles, or motorcycles 
certified under section 206 of the Act, or any nonroad engines, nonroad 
vehicles, or motorcycles certified under section 213(a) of the Act.
    (2) The waiver applies to the blending of greater than 10 vol% and 
no more than 15 vol% anhydrous ethanol into gasoline,\144\ and the 
ethanol must meet the specifications for fuel ethanol found in the ASTM 
International specification D4806-10.\145\
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    \144\ Gasoline in this case may be gasoline blendstocks that 
produce gasoline upon the addition of the specified amount of 
ethanol covered by the waiver.
    \145\ ASTM D4806-10, Standard Specification for Denatured Fuel 
Ethanol for Blending with Gasolines for Use as Automotive Spark-
Ignition Engine Fuel.
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    (3) The final fuel must have a Reid Vapor Pressure not in excess of 
9.0 psi during the time period from May 1 to September 15.

[[Page 68150]]

    (4) Fuel and fuel additive manufacturers subject to this partial 
waiver must submit to EPA a plan, for EPA's approval, and must fully 
implement that EPA-approved plan, prior to introduction of the fuel or 
fuel additive into commerce as appropriate. The plan must include 
provisions that will implement all reasonable precautions for ensuring 
that the fuel or fuel additive (i.e., gasoline intended for use in E15, 
ethanol intended for use in E15, or final E15 blend) is only introduced 
into commerce for use in MY2007 and newer motor vehicles. The plan must 
be sent to the following address: Director, Compliance and Innovative 
Strategies Division, U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW. Mail Code 6405J, Washington, DC 20460. 
Reasonable precautions in a plan must include, but are not limited to, 
the following conditions on this partial waiver:
    (a)(i) Reasonable measures for ensuring that any retail fuel pump 
dispensers that are dispensing a gasoline produced with greater than 10 
vol% ethanol and no more than 15 vol% ethanol are clearly labeled for 
ensuring that consumers do not misfuel the waivered gasoline-ethanol 
blend into vehicles or engines not covered by the waiver. The label 
shall convey the following information:
    (A) The fuel being dispensed contains 15% ethanol maximum;
    (B) The fuel is for use in only MY2007 and newer gasoline cars, 
MY2007 and newer light-duty trucks and all flex-fuel vehicles;
    (C) Federal law prohibits the use of the fuel in other vehicles and 
engines; and
    (D) Using E15 in vehicles and engines not approved for use might 
damage those vehicles and engines.
    (ii) The fuel or fuel additive manufacturer must submit the label 
it intends to use for EPA approval prior to its use on any fuel pump 
dispenser.
    (b) Reasonable measures for ensuring that product transfer 
documents accompanying the shipment of a gasoline produced with greater 
than 10 vol% ethanol and no more than 15 vol% ethanol properly document 
the volume of ethanol.
    (c)(i) Participation in a survey of compliance at fuel retail 
dispensing facilities. The fuel or fuel additive manufacturer must 
submit a statistically sound survey plan to EPA for its approval and 
begin implementing the survey plan prior to the introduction of E15 
into the marketplace. The results of the survey must be provided to 
EPA.\146\ The fuel or fuel additive manufacturer conducting a survey 
may choose from either of the following two options:
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    \146\ In a Notice of Proposed Rulemaking published in today's 
Federal Register, EPA is proposing a more detailed labeling, product 
transfer documents, and survey plan.
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    (ii) Individual survey option: Conduct a survey of labels and 
ethanol content at retail stations wherever your gasoline, ethanol, or 
ethanol blend may be distributed if it may be blended as E15. The 
survey plan must be approved by EPA prior to conducting the survey 
plan.
    (iii) Nationwide survey option: Contract with an individual survey 
organization to perform a nationwide survey program of sampling and 
testing designed to provide oversight of all retail stations that sell 
gasoline. The survey plan must be approved by EPA prior to conducting 
the survey plan.
    (d) Any other reasonable measures EPA determines are appropriate.
    (5) Failure to fully implement any condition of this partial waiver 
means the fuel or fuel additive introduced into commerce is not covered 
by this partial waiver.
    This partial waiver decision is final agency action of national 
applicability for purposes of section 307(b)(1) of the Act. Pursuant to 
CAA section 307(b)(1), judicial review of this final agency action may 
be sought only in the United States Court of Appeals for the District 
of Columbia Circuit. Petitions for review must be filed by January 3, 
2011. Judicial review of this final agency action may not be obtained 
in subsequent proceedings, pursuant to CAA section 307(b)(2). This 
action is not a rulemaking and is not subject to the various statutory 
and other provisions applicable to a rulemaking.

    Dated: October 13, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-27432 Filed 11-3-10; 8:45 am]
BILLING CODE 6560-50-P
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