Urban Air Initiative Comments on E15 Proposed Regulations focus on Sub-Sim

(Urban Air Initiative, et al.) EPA’s proposed rule is inconsistent with the text of the sub-sim law, because ethanol is now a fuel additive used in vehicle certification. The proposed rule would codify a “no more than 15%” ethanol limit for the 1 psi RVP waiver. EPA’s 15% limit is based on EPA’s misinterpretation of another provision, the Clean Air Act’s sub-sim law.
EPA interprets the sub-sim law to limit the concentration of ethanol in gasoline to no more than 15% ethanol, the concentration permitted by EPA’s 2011 E15 waiver.

EPA’s interpretation of the sub-sim law is incorrect. As a result of changes to the gasoline certification fuel that EPA adopted in the 2014 Tier 3 Rule, ethanol is now a “fuel additive utilized in the certification of” motor vehicles. Under the plain meaning of the subsim law, the statute no longer prohibits manufacturers from “increas[ing] the concentration
in use of” ethanol in gasoline for use in motor vehicles. In the final rule, EPA should interpret the statute according to its plain meaning and recognize that the 2011 E15 sub-sim waiver no longer controls the concentration of ethanol in gasoline or the RVP of E15. EPA should also withdraw proposed regulatory language limiting the 1 psi RVP waiver to blends
containing no more than 15% ethanol.

In the alternative, E20 is “substantially similar” to the E10 certification fuel. The correct interpretation of the sub-sim law is that it no longer controls the concentration of ethanol in gasoline. But even if the sub-sim law could be interpreted to limit ethanol content (and for the reasons discussed above, it cannot), EPA’s definition of “substantially similar” is still under-inclusive. EPA asserts it only has “sufficient data and information to support” a definition of “substantially similar” limited to “gasoline that contains only ethanol content up to 15 percent.” Not so. At a minimum, the available data support a conclusion that E20 is “substantially similar” to E10 certification fuel. E20 meets all of EPA’s “substantially
similar” criteria: E20 and E10 certification fuel have similar physical and chemical characteristics; similar effects on vehicle exhaust and evaporative emissions; similar effects on the durability of vehicle emission controls; and similar effects on vehicle driveability. In the final rule, EPA should define “substantially similar” to include E20 or at least seek
additional comment on this question.

EPA may not require refiners and importers to comply with the 2011 E15 sub-sim waiver conditions. EPA’s “preferred approach” would be to continue requiring refiners and importers to comply with the 2011 sub-sim waiver conditions, including the E15 waiver’s 9 psi RVP limit. EPA may not enforce those conditions. Even under EPA’s misinterpretation
of the sub-sim law, E15 is “substantially similar” to the Tier 3 gasoline certification fuel. As a result, refiners and importers are no longer bound by the 2011 E15 waiver conditions, and EPA cannot enforce those conditions. READ MORE