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 LightDuty Motor Vehicle Issues

A. MY2007 and Newer Motor Vehicles

1. Exhaust EmissionsLongTerm Durability

a. Growth Energy's Submission

b. Public Comment Summary

c. EPA Response Regarding the Need for LongTerm Exhaust Emissions (Durability) Testing

i. General Longterm 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 EmissionsImmediate Effects for MY2007 and Newer LightDuty Motor Vehicles

a. Growth Energy's Submission

b. Public Comment Summary

c. EPA Analysis

d. Conclusion

3. Evaporative Emissions on MY2007 and Newer LightDuty 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 LightDuty 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 LightDuty Motor Vehicles

a. Introduction

b. Growth Energy's Submission

c. Public Comment Summary

d. EPA Analysis

e. Conclusions

6. Overall Immediate and LongTerm Emissions Conclusions

B. MY20012006 LightDuty Motor Vehicles

C. MY2000 and Older LightDuty 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 EmissionsLongTerm 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. LongTerm Exhaust Emissions (Durability)

3. Immediate Exhaust Emission Effects

4. Evaporative Emissions

5. Materials Compatibility

6. Driveability and Operability

E. Conclusion
VI. HeavyDuty 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
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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 lightduty motor vehicles, which includes passenger cars, lightduty 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 heavyduty gasoline highway engines and vehicles (e.g., delivery trucks). Highway and offhighway 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 MY20012006 lightduty 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.
\1\ For purposes of today's decision, ``MY2007 and newer light duty motor vehicles'' include MY2007 and newer lightduty motor vehicles (LDV), lightduty trucks (LDT), and mediumduty passenger vehicles (MDPV).

To help ensure that E15 is only used in MY2007 and newer lightduty 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 inuse 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 longterm durability emissions data necessary to ensure that all motor vehicles, heavyduty gasoline highway engines and vehicles, highway and offhighway 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 lightduty 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.
\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.

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 impactslongterm (known as durability) and immediate; (2) evaporative system impactsboth 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 LightDuty Motor Vehicles

For MY2007 and newer lightduty 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
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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.
\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 groundlevel ozone and diminish the effects of ozonerelated health problems. Gasoline needs a higher vapor pressure in the wintertime for cold start purposes.

Durability/LongTerm Exhaust Emissions

The DOE Catalyst Study involved 19 high sales volume car and light duty truck models (MY20052009 motor vehicles produced by the top U.S. salesbased 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 gasolineethanol 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 E15aged 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 lightduty 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 gasolinefueled cars and lightduty trucks were fully phased in to the Tier 2 standards by MY2007 even though the program did not require the phasein to be complete until MY2009. Consequently, EPA believes it appropriate to apply these test results to all MY2007 and newer lightduty motor vehicles.
\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).

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 gasolineethanol 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 inuse (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 gasolineethanol 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 longterm (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.
\7\ Permeation refers to the migration of fuel molecules through the walls of elastomers used for fuel system components.
\8\ Southwest Research Institute Project 0858845 Status Report, ``Powertrain Component Inspection from MidLevel Blends Vehicle Aging Study,'' September 6, 2010. See EPAHQOAR2009021114016. \9\ Environmental Testing Corporation NREL Subcontract JGC9 9914101 Presentation, ``Vehicle Aging and Comparative Emissions testing Using E0 and E15 Fuels: Evaporative Emissions Results,'' August 31, 2010. See EPAHQOAR2009021114015.

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 realworld 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 lightduty 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 inuse operation. MY2000 and Older LightDuty 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 emissionsboth immediate and durabilityrelatedwill 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 gasolineethanol 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 longterm durability, materials compatibility, or drivability with fuels containing ethanol. The limited exhaust emissions durability test data, evaporative emissions durability test data, and realworld 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 lightduty motor vehicles.

MY20012006 LightDuty Motor Vehicles

EPA is deferring a decision on MY20012006 lightduty motor vehicles. DOE is in the process of conducting additional catalyst durability testing that will provide data regarding MY20012006 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 allterrain 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 lightduty motor vehicles. The Agency has reasons for concern with the use of E15 in nonroad products, particularly with respect to longterm 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. HeavyDuty Gasoline Engines and Vehicles

Given their relatively small volume compared to lightduty motor vehicles, heavyduty 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 heavyduty 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 heavyduty gasoline engine and vehicle technology has lagged behind the implementation of similar technology for lightduty motor vehicles. Similarly, emission standards for this sector have lagged behind those of lightduty motor vehicles, such that current heavyduty gasoline engine standards remain comparable, from a technology standpoint to older lightduty motor vehicle standards. Consequently, we believe the concerns expressed above regarding MY2000 and older motor vehicles are also applicable to the majority of the inuse fleet of heavyduty gasoline engines and vehicles. As such, the Agency cannot grant a waiver for the introduction into commerce of E15 for use in heavyduty gasoline engines and motor vehicles.

Highway and OffHighway Motorcycles

Like heavyduty 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 lightduty 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 offhighway 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 EPAapproved 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 gasolineethanol 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
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ethers and alcohols.\10\ E10 (a gasolineethanol 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 (gasolineethanol 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 30day 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 longterm 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 69 months. DOE has completed the first phase of this testing which focused on lightduty 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 (gasolineethanol blended fuel that contains 12 vol% ethanol) for all gasolinepowered 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 offhighway 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 nonflex fueled lightduty motor vehicles, heavyduty 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 gasolineethanol 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 longterm (durability); (2) evaporative emissions, both immediate and longterm; (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 ``backtoback'' 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 longterm 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 inuse 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 LightDuty Motor Vehicle Issues

This section discusses Growth Energy's waiver submission, comments received on it, and EPA's waiver decision and analysis for lightduty motor vehicles. The discussion groups vehicles according to our decision: MY2007 and newer lightduty motor vehicles for which we are approving the waiver, MY20012006 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 impactboth immediate and long term (known as durability); (2) immediate exhaust emissions impact; (2) evaporative system impactsboth immediate and longterm; (3) the impact of materials compatibility on emissions; and, (4) the impact of drivability and operability on emissions.

A. MY2007 and Newer LightDuty Motor Vehicles

While this section discusses the rationale of our decision for MY2007 and newer lightduty 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 EmissionsLongTerm Durability

a. Growth Energy's Submission

For longterm 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 longterm 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 longstanding position that oxygenates like ethanol will not have longterm 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 longterm 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 (gasolineethanol 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 longterm 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 E20.'' \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 EPAHQOAR 20090211. (``The RIT Study'').
\24\ ``Application For A Waiver Pursuant to Section 211(f)(4) of the Clean Air Act For E15'' Submitted by Growth Energy on Behalf of 52 United States Ethanol Manufacturers; EPA Docket EPAHQ OAR200902110002.6.
\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 EPAHQOAR2009 02112721.1.

b. Public Comment Summary

Several commenters responded that the RIT Study has limitations and does not alleviate concerns about the longterm emissions impacts of using E15 in motor vehicles. The Manufacturers of Emissions Controls Association (MECA) argues that emission controlrelated concerns regarding the use of E15 include the potential for accelerated thermal deactivation of threeway catalysts equipped on existing lightduty motor vehicles or nonroad engines, due to higher exhaust temperatures that have been observed on engines fueled with midlevel ethanol blends in comparison to E0 and E10. MECA argues further that the thermal durability of threeway 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 EPAHQOAR200902112441.1.

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,
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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 E871 (``the CRC Screening Study'' or ``E871'') is the first phase of another test program developed to look at the effects of midlevel gasolineethanol blends on U.S. motor
vehicles.\27\ The purpose of the study was to identify motor vehicles which used learned fuel trims to correct openloop airtofuel (A/F) ratios since this may gauge the risk of the catalyst to thermal degradation.\28\ This study is the first phase of a twophase study evaluating the effects of midlevel gasolineethanol 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 gasolineethanol blends with E0. The study concluded that a large number of vehicles (12 of the 25 tested) failed to apply longterm fuel trim to correct for increasing ethanol levels when operating in openloop control.
\27\ Midlevel Ethanol Blends Catalyst Durability Study Screening (CRC Report: E871), June 2009 (``CRC Screening Study''), EPA Docket EPAHQOAR2009021113970. Available at:
http://www.crcao.com/reports/recentstudies2009/E871/E87 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 longterm 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 socalled ``legacy vehicles'' which constitute a bulk of the American motor vehicle fleet. The Alliance asserts that this uncertainty of the longterm 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 socalled '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 Nonroad 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 Nonroad Engines, Report 1Updated, National Renewable Energy Laboratory, February 2009, as the ``DOE Pilot Study''. EPA Docket EPAHQOAR200501612880.
\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 EPAHQOAR20090211

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 mid1980s 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 E15,'' submitted by Growth Energy, EPA Docket
EPAHQOAR200902112721.2.

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
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the extra oxygen from the increased e

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) 3439718; fax number: (202) 3432800; email address: Anderson.Robert@epa.gov.