EPA Proposes Delaying Year-Round E15 Approval In Eight States To 2024

Mar 03, 2023

EPA is proposing to grant requests from eight states to revise federal fuel regulations to allow sales of 15 percent ethanol fuel (E15) year-round, but plans to delay the effective date until 2024 as sought by the oil sector, meaning that E15 fuel will not be available this summer absent emergency action by the agency.

A proposal just signed by EPA Administrator Michael Regan but not yet published in the Federal Register would approve the removal of a 1 pound per square inch (psi) Reid vapor pressure (RVP) waiver for Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin, which would put E15 fuel on an equal footing with the more-common E10 blend in those states even in the summer when it would otherwise be banned.

But the document says that after weighing oil industry requests to delay the approval, “given current timing considerations, we propose a finding of insufficient supply of gasoline in 2023, and therefore also propose an effective date of April 28, 2024 for removal of the 1-psi waiver in all eight states,” EPA says.

The move is unlikely to please the eight states, most of which formally petitioned the agency to scrap their waivers in April 2022. Seven attorneys-from petitioning states then renewed their requests in a January letter pushing EPA and the White House to issue a swift approval. Kansas and North Dakota also initially requested that EPA remove their waivers, but subsequently withdrew their requests, the proposal says.

Indeed, it is already drawing measured criticism from biofuel groups, who welcomed the overall decision to scrap the waivers but criticized EPA for leaving them in place this year.

“Today’s proposal offers both good news and bad news for consumers, fuel retailers, ethanol producers, and farmers. While we’re glad to see EPA is finally taking action to approve the Governors’ petition, we’re frustrated and disappointed that the agency is proposing to kick the can on implementation until 2024,” the Renewable Fuels Association (RFA) said in a March 1 statement on the proposal.

Removal of the 1 psi waiver in effect forces refiners to lower the RVP of gasoline blendstock that is then mixed with ethanol to produce finished E15 fuel or other blends, such as the national standard E10. The result is that finished fuel satisfies federal fuel volatility limits even in summer months when the threshold is lowered to protect air quality — placing E15 on a level footing with E10.

If EPA left the waivers in place, E15 sales would remain barred in the summer driving season, which runs from June 1 through Sept. 15 under a 2021 decision by the U.S. Court of Appeals for the District of Columbia Circuit where a three-judge panel held that an existing RVP waiver allowing for year-round sales of E10 does not also extend to E15.

EPA will take public comment on the proposal for 45 days following its publication in the Register.

‘Simply No Justification’

Although the proposal is a long-sought victory for biofuels groups seeking to boost E15 sales, EPA’s decision to delay its implementation until the 2024 summer driving season has frustrated the industry.

“There is simply no justification for further delaying this action, which is already months overdue. By law, EPA should have finalized approval of the Governors’ petition more than seven months ago, which would have given the marketplace more than enough time to adjust and prepare for implementation this summer,” RFA says. The AGs noted in their recent letter that the Clean Air Act requires responses to petitions within 90 days.

“But instead, under pressure from the oil industry, the White House ignored a statutory deadline, sat on the proposal for months on end, and slow-rolled Governors who acted in good faith to ensure consumers would have the ability to chooser lower-cost E15 all year long. And now, because of the administration’s unnecessary foot-dragging, consumers could lose access to the most affordable fuel at the pump three months from now.”

RFA’s statement calls on EPA to revise its proposal and finalize a rule authorizing E15 in the eight states before the summer, or “to use other regulatory authority” to allow continued sales in the summer.

Last year, the Biden administration allowed summer E15 sales in states that permit use of the fuel through an emergency waiver, citing supply disruptions resulting from the COVID-19 pandemic, but is unclear if EPA will repeat that move this year.

At a March 1 Senate Environment and Public Works Committee confirmation hearing for Joe Goffman, EPA’s current top air official who is nominated to formally head the Office of Air and Radiation, Sen. Pete Ricketts (R-NE) — a strong advocate for the ethanol industry — questioned whether the agency will issue such a waiver.

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