NACS and NPRA, among other petroleum industry [image-nocss] and retailgroups, condemned the decision, which they say is fraught with equipment and liability issues.
"Thorough testing has now shown that E15 does not harm emissions control equipment in newer cars and light trucks," said Jackson. "Wherever sound science and the law support steps to allow more home-grown fuels in America's vehicles, this administration takes those steps."
A decision on the use of E15 in model year 2001 to 2006 vehicles will be made after EPA receives the results of additional DOE testing, expected to be completed in November; however, no waiver is being granted this year for E15 use in model year 2000 and older cars and light trucks--or in any motorcycles, heavy-duty vehicles or nonroad engines--because currently there is no testing data to support such a waiver. Since 1979, up to 10% ethanol or E10 has been used for all conventional cars and light trucks, and nonroad vehicles.
Additionally, EPA said it is taking several steps to help consumers identify the correct fuel for their vehicles and equipment. First, EPA is proposing E15 pump labeling requirements, including a requirement that the fuel industry specify the ethanol content of gasoline sold to retailers. There would also be a quarterly survey of retail stations to help ensure their gasoline dispensers are properly labeled.
The Energy Independence & Security Act of 2007 mandated an increase in the overall volume of renewable fuels into the marketplace reaching a 36 billion gallon total in 2022. Ethanol is considered a renewable fuel because it is produced from plant products or wastes and not from fossil fuels.
An E15 petition was submitted to EPA by Growth Energy, a coalition of U.S. ethanol supporters, and 54 ethanol manufacturers in March 2009. In April 2009, EPA sought public comment on the petition and received about 78,000 comments. The petition was submitted under a Clean Air Act provision that allows EPA to waive the act's prohibition against the sale of a significantly altered fuel if the petitioner shows that the new fuel will not cause or contribute to the failure of the engine parts that ensure compliance with the act's emissions limits.
Click here to read the full text of the EPA's Notice of Partial Waiver Decision.Retailers should exercise extreme caution when considering whether to sell E15, said the National Association of Convenience Stores (NACS). The convenience and petroleum retailing industry sells an estimated 80% of the motor fuels purchased in the United States.
"EPA's decision to allow the use of E15 in certain vehicles does nothing to remove retailers' obligations to ensure that all of their equipment is lawfully certified to store and sell this product," said NACS vice president of government relations John Eichberger. "Further, limiting E15 use to only vehicles manufactured since 2007 could expose retailers to significant liability risk if a consumer were to fuel a nonapproved engine with E15."
Currently, fuels retailers are only authorized to sell fuel that contains up to 10% ethanol. Further, most vehicle warranties authorize fuels that contain no more than 10% ethanol.
Federal law requires that motor fuels retailers must use only equipment that has been listed by a nationally recognized testing laboratory, such as Underwriters Laboratories (UL), as compatible with the fuel that they store and dispense. Failure to use such listed equipment technically violates regulations of the Occupational Safety & Health Administration (OSHA), many state and local regulations and fire codes, underground storage tank insurance policies and state tank fund programs and many bank loan covenants. In addition, the use of nonlisted equipment could expose retailers to claims of gross negligence, which immediately triggers exemplary damages.
In addition, under the Clean Air Act, motor fuels retailers might be considered liable for emissions increases that may occur if E15 is used in nonapproved engines.
Customers may also attempt to hold retailers liable for damages to engines that occur because of their misfueling. To help mitigate concerns about misfueling, EPA also today proposed a requirement that E15 dispensers be appropriately labeled according to specific EPA standards to ensure consumers are provided adequate notice regarding the fuel they are purchasing. NACS said it is concerned, however, that misfuelings could be both accidental and intentional and that labels may not provide the necessary protections for retailers to limit potential liability.
"When regulations phased out lead from gasoline in the early 1980s, consumers went to extraordinary measures to bypass the fillpipe-nozzle restrictions that were designed to prevent misfueling," said Eichberger. "EPA then punished retailers for not physically preventing self-service consumers from introducing leaded gasoline into unleaded-only vehicles."
Although EPA has indicated that it does not plan to pursue similar enforcement against retailers, the Clean Air Act includes a private right of action empowering citizens--including groups that are opposed to E15--to sue retailers for such misfuelings.
There are also concerns about E15's compliance with various federal, state and local air control regulations. For example, conventional gasoline blended with 10% ethanol is allowed to exceed volatility control standards (measured in terms of Reid Vapor Pressure and expressed in pounds per square inch) by one pound. Federal law does not extend that one-pound waiver to fuels containing more than 10% ethanol, and that means that retailers who choose to sell E15 are potentially liable for violating air quality control regulations.
"EPA has placed retailers in a very precarious position," Eichberger said. "By issuing this decision before all testing has been completed, EPA is bifurcating the engine market, creating a scenario in which misfueling could be rampant and retailers will be forced to pay the bill. Further, by restricting the engines that are authorized to use E15, EPA is implying that E15 may cause performance, emissions or safety issues in other engines, thereby increasing the potential liability to retailers of E15. Finally, by issuing this decision before other laws and regulations could be amended to allow for the lawful sale of E15, EPA has authorized a fuel that could trigger widespread violations and liability for retailers who decide to act on this decision."
NACS said it supports legislation (H.R. 5778) introduced this Congress that would reform equipment certification procedures to enable retailers to have existing equipment certified as compatible with E15 and would provide limited liability protection against misfueling if the retailer complies with EPA's labeling regulations. NACS further supports additional legislative efforts that would protect market participants from product liability suits if EPA's decision to authorize E15 results in engine performance or safety issues.
The National Petrochemical & Refiners Association (NPRA) issued a statement criticizing the EPA decision to approve the sale of E15. NPRA executive vice president and general counsel Gregory M. Scott said, "The [EPA] abdicated its responsibility to safeguard our nation's public health and environment and became the Ethanol Promotion Agency. EPA's unwise and premature decision to allow the sale of gasoline with higher levels of ethanol may be good politics in Corn Belt states on the eve of the midterm elections, but it is bad news for every American who owns a car, truck, motorcycle, boat, snowmobile, lawnmower, chainsaw or anything else powered by gasoline."
He added, "The ethanol industry has won a victory today by convincing the federal agency charged with protecting our nation's public health and environment to disregard public safety and environmental issues and instead base a major policy decision on inadequate engine test data that has not been made public or reviewed independently. The American people are the losers today because EPA has violated President Obama's 2009 commitment to them to put science ahead of politics.
"EPA is asking the American people to pump first and ask questions later, and to become guinea pigs in a giant science experiment that involves their vehicles, their gasoline-powered equipment and their safety. Instead of rushing to judgment to announce this decision today, EPA should have required the completion of thorough and objective scientific testing of increased ethanol in gasoline to protect millions of Americans."
And an email campaign--"Say NO to Untested E15"--was organized by FollowThe Science.org, a coalition of environmental, consumer, food, engine manufacturing and other industry organizations resulted in more than 22,000 Americans emailing President Obama, urging him to intercede with EPA to prevent the "hasty and premature" approval of E15.
Growth Energy said that it embraced the EPA's E15 decision as an "important first step"; however, it said much more must be done to reduce America's dependence on foreign oil, create jobs here in the United States and improve the environment.
"Today's approval of E15 for newer vehicles is the first crack in the blend wall in more than 30 years, and proves what was laid out in Growth Energy's Green Jobs Waiver--that E15 is a good fuel for American motorists. And while this is an important first step, there are many more steps we can take toward strengthening our national security by reducing our dependence on foreign oil, creating jobs here in the United States and improving our environment," Tom Buis, CEO of Growth Energy, said.
Click hereto view EPA's E15 page.
Andclick here to view "Identification and Review of State/Federal Legislative & Regulatory Changes Required for the Introduction of New Transportation Fuels," prepared for the American Petroleum Institute (API).And watch for details in thje November issue of CSP magazine.
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