Petition for Writ of Certiorari — Growth Energy, Petitioner v. American Fuel & Petrochemical Manufacturers, et al.

Supreme Court briefOct 4, 2021

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APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-1124

Consolidated with 19-1159, 19-1160, 19-1162

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

GROWTH ENERGY, ET AL.,

Intervenors.

On Petitions for Review of an Order

of the Environmental Protection Agency

Argued April 13, 2021

Decided July 2, 2021

Filed July 2, 2021

Before: ROGERS, PILLARD and WILKINS, Circuit

Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In October 2018, the President directed the Environmental Protection Agency

“to initiate a rulemaking to consider expanding Reid

Vapor Pressure waivers for fuel blends containing gasoline and up to 15 percent ethanol,” also known as E15,

and to “increase transparency in the Renewable Identification Number (RIN) market,” a feature of the Renewable Fuel Standard (“RFS”) program. White

House, Fact Sheet: President Donald J. Trump Is Expanding Waivers for E15 and Increasing Transparency

in the RIN Market (Oct. 11, 2018) (emphasis omitted).

EPA issued a final rule on June 10, 2019, after notice

and comment, revising its regulations on fuel volatility

and the RIN market. Modifications to Fuel Regulations To Provide Flexibility for E15; Modifications to

RFS RIN Market Regulations, 84 Fed. Reg. 26,980

(June 10, 2019) (the “E15 Rule”). In Section II, EPA

announced a new interpretation of when the limits on

fuel volatility under the Clean Air Act could be waived

pursuant to 42 U.S.C. § 7545(h)(4), and relatedly reinterpreted the term “substantially similar” in Subsection 7545(f)(1)(A). In these consolidated petitions for

review, the petroleum and ethanol industries as well as

the Small Retailers Coalition challenge EPA’s decision

to grant a fuel volatility waiver to E15. For the following reasons, we hold that Section II exceeds EPA’s authority under Section 7545 and therefore vacate that

portion of the E15 Rule.

The Clean Air Act establishes, among other things,

“a comprehensive scheme for regulating motor vehicle

emission and fuel standards for the prevention and control of air pollution.” Ethyl Corp. v. EPA, 51 F.3d 1053,

1054 (D.C. Cir. 1995). Section 211 of the Act, 42 U.S.C.

§ 7545, addresses the regulation of fuels.

To safeguard the efficacy of emission control devices in motor vehicles, Subsection 7545(f) restricts the

introduction into commerce of new fuels and fuel additives. See Am. Methyl Corp. v. EPA, 749 F.2d 826, 829

(D.C. Cir. 1984). It is

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 general use in light duty 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

7525 of this title.

42 U.S.C. § 7545(f)(1)(A) (emphasis added). This limitation is subject to waiver, upon application and after notice and opportunity for comment, if “the applicant has

established that such fuel or fuel additive ... will not

cause or contribute to a failure of any emission control

device or system.” Id. § 7545(f)(4).

Subsection 7545(h) limits fuel volatility. Measured

in terms of pounds per square inch (“psi”) of Reid Vapor Pressure (“RVP”), volatility reflects how readily

gasoline evaporates. Although fuel must be sufficiently

combustible to ignite under cold start conditions, gasoline vapors contain volatile organic compounds that are

a key ingredient of ground-level ozone. Nat’l Tank

Truck Carriers, Inc. v. EPA, 907 F.2d 177, 179 (D.C.

Cir. 1990). Thus, “the greater the RVP, the greater the

volatility of the gasoline and the larger the amount of

ozone formed.” Id. Because ozone is created when volatile organic compounds react with nitrogen oxides in

the presence of sunlight, see S. Coast Air Quality

Mgmt. Dist. v. EPA, 472 F.3d 882, 887 (D.C. Cir. 2006),

controlling fuel volatility is particularly important dur-

ing the sunnier months of the year when ozone levels

are highest, see Nat’l Tank Truck Carriers, 907 F.2d at

179.

Subsection 7545(h)(1) directed EPA, not later than

six months after enactment of the 1990 Clean Air Act

Amendments, to “promulgate regulations making it unlawful for any person during the high ozone season ... to

sell, offer for sale, dispense, supply, offer for supply,

transport, or introduce into commerce gasoline with a

[RVP] in excess of 9.0 [psi].” 42 U.S.C. § 7545(h)(1).

The regulations were to “also establish more stringent

[RVP] standards in a nonattainment area.” Id. EPA

regulations limit the RVP of gasoline to 9.0 psi in attainment areas and 7.8 psi in nonattainment areas “during the summer season,” which generally runs from

May 1 to September 15. 40 C.F.R. § 1090.215(a) (2020);

see id. § 1090.80 (defining “summer season”).

Congress was also aware of various benefits of ethanol as compared to gasoline, however. See S. Rep. No.

101-228, at 110 (1989). Because, up to a point, adding

ethanol to gasoline increases the fuel’s RVP, requiring

E10 (fuel with 10% ethanol) to satisfy the 9-psi limit

“would likely result in the termination of the availability of ethanol in the marketplace.” Id. Subsection

7545(h)(4) provides for a waiver:

For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol, the [RVP]

limitation under this subsection shall be one

pound per square inch (psi) greater than the

applicable [RVP] limitations established under

paragraph (1) ... .

42 U.S.C. § 7545(h)(4). This 1-psi waiver allows qualifying fuels to be sold during the summer months at 10.0

psi in attainment areas and 8.8 psi in nonattainment areas. See 40 C.F.R. § 1090.215(b).

Both kinds of waivers—pursuant to Subsections

7545(f)(4) and (h)(4)—underlie the instant dispute. In

1979, E10 was introduced into commerce through a

Subsection 7545(f)(4) waiver. See Fuels and Fuel Additives: Gasohol; Marketability, 44 Fed. Reg. 20,777

(Apr. 6, 1979). EPA extended the 1979 waiver in 1982

to fuel containing 0-to-10% ethanol upon finding that

the “emissions effect of blends containing up to 10 percent anhydrous ethanol in unleaded gasoline would be

the same or less than that for the full 10 percent ethanol blend.” Fuels; Blends of Ethanol in Unleaded Gasoline, 47 Fed. Reg. 14,596, 14,596 (Apr. 5, 1982). Over

the next thirty years, use of E10 increased. By 2013,

E10 accounted for nearly all gasoline sold in the United

States. E15 Rule, 84 Fed. Reg. at 26,986.

In 2010 and 2011, EPA determined that E15 would

not impair certain motor vehicles’ emission controls under Subsection 7545(f)(4) and by waivers approved the

use of E15 in light-duty motor vehicles made after 2000.

See Partial Grant of Clean Air Act Waiver Application

Submitted by Growth Energy To Increase the Allowable Ethanol Content of Gasoline to 15 Percent, 76 Fed.

Reg. 4,662 (Jan. 26, 2011); 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, 75 Fed. Reg. 68,094

(Nov. 4, 2010); see also Grocery Mfrs. Ass’n v. EPA, 693

F.3d 169, 173 (D.C. Cir. 2012). These waivers did not

include the 1-psi waiver that enabled the summer sale

of E10, but instead required E15 to meet the generally

applicable 9-psi limit. EPA rejected requests to apply

the 1-psi waiver to E15, interpreting Subsection

7545(h)(4) as “limit[ed] ... to fuel blends containing gaso-

line and 9–10 vol% ethanol.” Regulation To Mitigate

the Misfueling of Vehicles and Engines With Gasoline

Containing Greater Than Ten Volume Percent Ethanol

and Modifications to the Reformulated and Conventional Gasoline Programs, 76 Fed. Reg. 44,406, 44,433

(July 25, 2011) (“Misfueling Rule”). Because it is costprohibitive to produce ethanol blends with volatility not

exceeding 9.0 psi, EPA’s waiver condition prevented

the sale of E15 during the summer. See E15 Rule, 84

Fed. Reg. at 26,990, 26,993.

In October 2018, the President directed EPA to initiate a rulemaking to consider modifying the volatility

limits for E15 so it could “be sold year round rather

than just eight months of the year.” White House, Fact

Sheet: President Donald J. Trump Is Expanding Waivers for E15 and Increasing Transparency in the RIN

Market (Oct. 11, 2018). Section II of the E15 Rule,

which EPA issued in June 2019, extended the 1-psi

waiver to fuel blends with an ethanol concentration of

“at least 9% and no more than 15% (by volume) of the

gasoline.” E15 Rule, 84 Fed. Reg. at 27,021 (codified at

40 C.F.R. § 80.27(d)(2), now codified in § 1090.215(b)).

This change rested on two subsidiary determinations.

First, EPA “adopt[ed] a new interpretation” of Subsection 7545(h)(4), id. at 26,991, as simply “establishing a

lower limit, or floor, on the minimum ethanol content

for a 1-psi waiver,” id. at 26,992. Under its revised interpretation, the “lack[] [of] modifiers for the term ‘containing’” in Subsection 7545(h)(4), “in contrast to the

other statutory provisions” in Section 7545, renders the

term “ambiguous and provides room for … interpretive

and policy choices.” Id. EPA concluded it was “permissible … to interpret ‘containing’ to mean ‘containing

at least’” such that “all fuels which contain at least 10

percent ethanol may receive the 1-psi waiver, including

blends that contain more than 10 percent ethanol.” Id.

This new interpretation, EPA noted, advanced the

statutory purpose of promoting the use of ethanol fuel.

Id. at 26,993. Second, EPA determined that E15 is

“substantially similar” to E10, a fuel used to certify vehicle emissions control systems, when used in lightduty motor vehicles made after 2000. Because E15

thereby satisfied the requirements of Subsection

7545(f)(1)(A), as well as Subsection 7545(h)(4) as EPA

reinterpreted it, E15 could be sold at 10.0 psi notwithstanding the volatility conditions in the 2010–2011

waivers. Id.

Three sets of petitioners challenge Section II of the

E15 Rule. Petroleum Petitioners contend that Subsection 7545(h)(4)’s 1-psi waiver does not apply to blends

with more than 10% ethanol and that EPA’s reinterpretation contradicts the statutory text, context, and

history. They further contend that EPA lacks authority to make a partial substantial-similarity determination pursuant to Subsection 7545(f)(1)(A), and that its

finding that E15 is substantially similar to E10 is arbitrary and capricious. Ethanol Petitioners also challenge

EPA’s

reinterpretation

Subsection

7545(f)(1)(A), but they maintain that the E15 Rule does

not go far enough. They assert that fuel blends with

more than 15% ethanol are substantially similar to E10,

obligating EPA to extend the 1-psi waiver to those

higher-ethanol blends. The Small Retailers Coalition

challenge is directed to EPA’s certification that the

E15 Rule will not adversely affect small businesses.

The Coalition argues that certification was inconsistent

with the Regulatory Flexibility Act and irrational because small fuel retailers will be required to undertake

costly infrastructure upgrades to store and sell E15.

II.

As a threshold matter, the court addresses whether

at least one of the petitioners has standing under Article III of the Constitution to obtain review of the E15

Rule. Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 101–02 (1998); Carbon Sequestration Council v.

EPA, 787 F.3d 1129, 1137 (D.C. Cir. 2015). If one of the

Petroleum Petitioners has standing, and if their contention that the E15 Rule is contrary to the plain text, context, and history of the Clean Air Act is persuasive,

then, absent the severability of Section II, the court

must vacate the E15 Rule.

Article III standing requires that a petitioner show

an “injury in fact,” a “causal connection” between the

injury and the challenged conduct, and a likelihood

“that the injury will be redressed by a favorable decision.” Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560–61

(1992) (internal quotation marks omitted). The party

invoking the court’s jurisdiction bears the burden of

demonstrating a “substantial probability” of standing.

Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002)

(quoting Am. Petro. Inst. v. EPA, 216 F.3d 50, 63 (D.C.

Cir. 2000)). When standing is not self-evident—for example, as may be true if a petitioner is not directly regulated by the challenged rule—“the petitioner must

supplement the record to the extent necessary to explain and substantiate its entitlement to judicial review.” Id. at 900. An association may bring suit on behalf of its members “only if (1) at least one of its members would have standing to sue in [its] own right; (2)

the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief

requested requires the member to participate in the

lawsuit.” Chesapeake Climate Action Network v. EPA,

952 F.3d 310, 318 (D.C. Cir. 2020) (quoting Am. Truck-

ing Ass’ns v. Fed. Motor Carrier Safety Admin., 724

F.3d 243, 247 (D.C. Cir. 2013)).

One of the Petroleum Petitioners, American Fuel &

Petrochemical Manufacturers (“AFPM”), a trade association that “represents most refiners in the United

States,” Susan W. Grissom Decl. ¶ 2, has standing.

Two of its members, Motiva Enterprises LLC and Sinclair Oil Corporation, could each assert a justiciable

claim in its own right. Motiva and Sinclair assert injuries under the doctrine of competitor standing, which

recognizes that “economic actors ‘suffer constitutional

injury in fact when agencies lift regulatory restrictions

on their competitors or otherwise allow increased competition.’” Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010,

1015 (D.C. Cir. 2016) (quoting La. Energy & Power

Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)). To

demonstrate competitor injury, a petitioner must

“show an actual or imminent increase in competition.”

Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010).

With injury established, the rest of the standing inquiry ordinarily falls into place: the increased competition is caused by the agency’s action and redressed by

restoring the regulatory status quo ante. See Wash.

All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.,

892 F.3d 332, 341–42 (D.C. Cir. 2018); Nat’l Biodiesel

Bd., 843 F.3d at 1015.

Motiva and Sinclair produce petroleum products.

William Spurgeon Decl. ¶ 4; Adam G. Suess Decl. ¶ 1.

They compete with biofuel producers in the motor vehicle fuel market because ethanol is a substitute for the

traditional petroleum-based components of gasoline.

Spurgeon Decl. ¶ 25. By removing the otherwise applicable 9-psi volatility limit, the E15 Rule is substantially

likely to increase demand for E15. Suess Decl. ¶¶ 10–

11; see Nat’l Biodiesel Bd., 843 F.3d at 1015–16; Delta

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Const. Co. v. EPA, 783 F.3d 1291, 1299–1300 (D.C. Cir.

2015). EPA, upon extrapolating from monthly E15 retail sales data collected in Minnesota between 2015 and

2018, has estimated that “annual per-station sales of

E15 would have been about 16% higher had the 1psi

waiver been available for E15.” Resp. to Comments at

97. Increased production of E15 is, in turn, likely to

cause a significant rise in demand for ethanol and a significant reduction in demand for petroleum. Spurgeon

Decl. ¶ 25; Suess Decl. ¶¶ 12–13. Because vacatur of

the E15 Rule would redress these injuries, Motiva and

Sinclair have competitor standing. See Nat’l Biodiesel

Bd., 843 F.3d at 1015.

The other two elements of associational standing

are also satisfied. The interests that AFPM seeks to

protect are germane to its purpose; it has an “obvious

interest in challenging” a rule detrimental to the financial wellbeing of its members. Am. Trucking Ass’ns,

724 F.3d at 247. Neither the claims asserted regarding

EPA’s statutory violations, nor the relief sought by vacatur requires the participation of AFPM’s members.

See Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588,

597 (D.C. Cir. 2015). Because AFPM has shown a substantial probability of associational standing, the court

need not consider other bases offered by Petroleum Petitioners to establish Article III standing. Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 182 (D.C. Cir.

2017).

III.

Turning to the merits, Petroleum Petitioners contend that the E15 Rule is contrary to the plain meaning

of Subsection 7545(h)(4). They maintain that the statute is clear on its face: the phrase “fuel blends containing gasoline and 10 percent … ethanol” refers to E10

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and E10 only. It follows, they conclude, that Subsection 7545(h)(4) does not authorize EPA to alter the volatility limits for E15. EPA responds that the term

“containing” is sufficiently ambiguous to render its revised interpretation reasonable and deserving of deference by the court. Intervenors Growth Energy, National Corn Growers Association, and Renewable Fuels

Association (“Biofuel Intervenors”) agree with Petroleum Petitioners that the statute is unambiguous, but

they contend that Subsection 7545(h)(4) unambiguously

applies to all fuel blends with at least 10% ethanol.

The court’s review of EPA’s interpretation of the

Clean Air Act proceeds under the two-step framework

announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See

Michigan v. EPA, 576 U.S. 743, 751 (2015); Am. Fuel &

Petro. Mfrs. v. EPA, 937 F.3d 559, 574 (D.C. Cir. 2019).

The court first asks “whether Congress has directly

spoken to the precise question at issue.” Chevron, 467

U.S. at 842. In answering that question, the court exhausts the “traditional tools of statutory construction,”

considering the provision’s text, context, legislative

history, and purpose. Id. at 843 n.9; see U.S. Sugar

Corp. v. EPA, 830 F.3d 579, 605 (D.C. Cir. 2016). When

Congress has written clearly, “that is the end of the

matter,” because the court and EPA “must give effect

to the unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842–43. When “the statute is silent or ambiguous with respect to the specific issue,”

then the court will uphold EPA’s interpretation so long

as it “is based on a permissible construction of the statute.” Id. at 843.

Our interpretation of Subsection 7545(h)(4)

“begin[s] with the language employed by Congress and

the assumption that the ordinary meaning of that lan-

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guage accurately expresses the legislative purpose.”

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246, 252 (2004) (quoting Park ‘N Fly,

Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194

(1985)). The statutory directive is straightforward.

Subsection 7545(h)(4) authorizes EPA to grant a 1-psi

waiver to a particular type of fuel: “blends containing

gasoline and 10 percent denatured anhydrous ethanol.”

42 U.S.C. § 7545(h)(4). In other words, Subsection

7545(h)(4) refers to E10. This understanding accords

with the ordinary meaning of the word “contain” used

as a percentage. Consider a label that a bottle of wine

“contains 10% alcohol by volume.” No one would understand that number to be other than a literal statement of the actual amount of alcohol in a serving. By

contrast, the label would be misleading if the wine contained only 5% alcohol or 15% alcohol. Here the ordinary meaning of the phrase “containing gasoline and 10

percent … ethanol” specifies the relative amount of

ethanol in a unit of fuel, not the minimum or maximum

ends of an unspecified range. Confirming the ordinary

meaning of “containing,” the inclusion of the adjectives

“denatured” (ethyl alcohol, that is, undrinkable alcohol)

and “anhydrous” (alcohol that has had water removed

to a purity of 99% ethanol), Resp’t’s Br. 17 n.6, reads

like a scientific formula. A chemist or petroleum engineer would not read instructions directing the preparation of a solution containing “10 percent denatured anhydrous ethanol” to require the addition of anything

other than 10 percent denatured anhydrous ethanol,

and no more.

This understanding of “containing” comports with

contemporaneous dictionary definitions. When Subsection 7545(h)(4) was enacted in 1990, the word “contain”

was defined, as relevant, as “to have within,” “to hold,”

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or “to comprise” in a manner that “implies the actual

presence of a specific substance or quantity within

something.” WEBSTER’S NEW COLLEGIATE DICTIONARY 282 (9th ed. 1990); see also 3 THE OXFORD ENGLISH DICTIONARY 807 (2d ed. 1989). Applying those

definitions, Subsection 7545(h)(4) is best read to concern gasoline that “has within it” or “holds” a specific

quantity (10%) of a specific substance (ethanol). By its

plain terms, then, Subsection 7545(h)(4) applies to E10,

leaving no room for EPA to exempt E15 from the 9-psi

volatility limit prescribed in Subsection 7545(h)(1).

Statutory context reinforces the conclusion that

Congress intended Subsection 7545(h)(4) to regulate

E10. Numerous provisions of the Clean Air Act enacted contemporaneously with Subsection 7545(h) in the

1990 Amendments, Pub. L. No. 101-549, 104 Stat. 2399,

have percentages with modifiers. Sometimes the modifier establishes a minimum allowable amount. For example, EPA is directed to promulgate regulations requiring certain urban buses to use “low-polluting fuels,”

42 U.S.C. § 7554(c)(2)(A), including methanol, which is

defined as a blend containing “at least 85 percent methanol,” id. § 7554(f)(2) (emphasis added). The 1990

Amendments also require that gasoline “contain not

less than 2.7 percent oxygen” by weight during the

winter months in areas that do not meet the national

ambient air quality standards for carbon monoxide. Id.

§ 7545(m)(2) (emphasis added). Other times the modifier imposes an upper limit. Addressing misfueling,

Congress prohibited any person from knowingly introducing into commerce diesel fuel that “contains a concentration of sulfur in excess of 0.05 percent (by

weight).” Id. § 7545(g)(2) (emphasis added). And in

Subsection 7545(h)(1), Congress instructed EPA to

“promulgate regulations making it unlawful for any

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person during the high ozone season” to “introduce into

commerce gasoline with a Reid Vapor Pressure in excess of 9.0 pounds per square inch.” Id. § 7545(h)(1)

(emphasis added).

In contrast, Congress did not include any modifiers

in Subsection 7545(h)(4). Section 7545 itself illustrates

that Congress knew how to use modifiers to set upper

and lower limits. The absence of such a term in Subsection 7545(h)(4) may properly be understood as purposeful. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452

(2002); New York v. EPA, 413 F.3d 3, 39–40 (D.C. Cir.

2005). Had Congress intended to exempt a range of

ethanol fuels from the 9-psi limit, it could have referred

to fuel containing “at least” or “not more than” 10%

ethanol, much as appeared in the House version of the

1-psi waiver. See H.R. 3030, 101st Cong. § 214 (1989).

The reference to E10 without modifiers suggests that

Congress intended Subsection 7545(h)(4) to apply to

E10.

The statutory history points in the same direction.

EPA had regulated fuel volatility before Subsection

7545(h)(4) was enacted. In particular, the year before

the 1990 Amendments were enacted, EPA had imposed

seasonal, state-specific volatility limits on gasoline and

granted ethanol fuels a 1-psi waiver, provided the fuel

“contain at least 9% ethanol” and its “maximum ethanol

content … not exceed any applicable waiver conditions”

granted pursuant to Subsection 7545(f)(4). Volatility

Regulations for Gasoline and Alcohol Blends Sold in

Calendar Years 1989 and Beyond, 54 Fed. Reg. 11,868,

11,885 (Mar. 22, 1989). Because only E10 had received

a waiver at that time, EPA’s exemption effectively applied only to fuels containing between 9 and 10 percent

ethanol. See E15 Rule, 84 Fed. Reg. at 26,988. The following year, when Congress enacted Subsection

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7545(h), it retained EPA’s general framework for regulating fuel volatility, including granting ethanol fuels a

1-psi allowance. But Congress rejected EPA’s openended approach to the 1-psi waiver, declining to codify

the “at least” modifier and flexible upper limit in EPA’s

1989 Rule, instead limiting Subsection 7545(h)(4) to

E10.

Other legislative actions by Congress around the

same time that it enacted the 1990 Amendments are to

the same effect. Ten days before enacting the 1990

Amendments, Congress raised the tax imposed on motor vehicle fuels as part of the High Way Trust Fund.

Omnibus Budget Reconciliation Act of 1990, Pub. L.

No. 101-508, § 11211(a)(2), 104 Stat. 1388–423 (1990). A

lower tax was imposed on “any mixture at least 10 percent of which is alcohol … if any portion of such alcohol

is ethanol.” Id. § 11211(a)(5)(F), 104 Stat. 1388–424

(emphasis added). This legislation further underscores

that Congress’ omission of a modifier in Subsection

7545(h)(4) was deliberate.

Indeed, EPA itself has previously credited Subsection 7545(h)’s legislative history as evidence that it

lacked authority to extend the 1-psi waiver to fuels

other than E10. In 1991, when implementing Subsection 7545(h)(4), EPA stated that “the legislative history

indicates that Congress envisioned continuation of the 9

to 10 percent requirement” set forth in EPA’s 1989

Rule. Regulation of Fuels and Fuel Additives: Standards for Gasoline Volatility; and Control of Air Pollution from New Motor Vehicles and New Motor Vehicle

Engines: Standards for Particulate Emissions from

Urban Buses, 56 Fed. Reg. 24,242, 24,245 (May 29,

1991). And in adopting regulations in 2011 to prevent

misfueling, EPA pointed to Subsection 7545(h)(4)’s

“legislative history [as] support[ing] EPA’s interpreta-

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tion … that the 1 psi waiver only applies to gasoline

blends containing 9–10 vol% ethanol.” Misfueling Rule,

76 Fed. Reg. at 44,434.

The defenses of EPA’s new interpretation of Subsection 7545(h)(4) in the E15 Rule are unpersuasive.

EPA and Biofuel Intervenors maintain that the statute

is ambiguous inasmuch as no party challenges EPA’s

longstanding view that the phrase “containing … 10

percent,” in Subsection 7545(h)(4) “includes [blends

with] as little as 9 percent” ethanol. E15 Rule, 84 Fed.

Reg. at 26,992 n.90. But recognizing some compliance

margin associated with Subsection 7545(h)(4)’s “10 percent” does not support interpreting this provision as

though it applied to blends containing “at least 10 percent” ethanol. See City of Arlington v. FCC, 569 U.S.

290, 307 (2013). EPA and Biofuel Intervenors also

maintain that Subsection 7545(h)(4) can be read as

specifying the minimum ethanol content eligible for the

1-psi waiver because the word “containing” is frequently understood to implicitly mean “containing at least.”

Resp’t’s Br. 40; Biofuel Intervenors’ Br. 17–18. As an

example, EPA states that a physician’s diagnosis that a

“patient’s blood must ‘contain 10% white blood cells’” to

repel infections “clearly does not mean exactly 10.0%

white blood cells” but rather “at least 10% white blood

cells.” Resp’t’s Br. 40. Yet the problem with this argument is that “the sort of ambiguity giving rise to

Chevron deference is a creature not of definitional possibilities, but of statutory context.” New York v. EPA,

443 F.3d 880, 884 (D.C. Cir. 2006) (internal quotation

marks omitted) (quoting Am. Bar Ass’n v. FTC, 430

F.3d 457, 469 (D.C. Cir. 2005)). Examples from other

settings are unlikely to undermine contextual evidence

of textual meaning in a complex regulatory regime de-

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signed to reduce air pollution where the unmodified

term “containing” is used with a percentage.

As to legislative history, EPA and Biofuel Intervenors point out that Congress considered but ultimately

rejected the House version of Subsection 7545(h)(4),

which provided that “the Administrator may permit

gasoline containing at least 9 but not more than 10 per

centum ethanol (by volume) to exceed the applicable

Reid vapor pressure requirements by up to 1.0 psi.”

H.R. 3030, 101st Cong. § 214 (as introduced, July 27,

1989) (emphasis added). They maintain that Congress’

decision not to adopt the House’s modifier of “not more

than” demonstrates there was no intention to limit the

1-psi waiver to E10. See Resp’t’s Br. 35–37; Biofuel Intervenors’ Br. 22–23. This account of the legislative

history is meaningfully incomplete. Congress was

faced with at least three competing versions of the fuel

volatility waiver. The bill introduced in the House limited the 1-psi waiver to fuel containing “not more than”

10% ethanol. H.R. 3030, § 214. The House bill reported

out of Committee used different phrasing, stating that

“the Administrator shall permit a 1.0 pound per square

inch (psi) tolerance level for gasoline containing at least

10 percent ethanol.” H.R. 3030, 101st Cong. § 216 (as

reported by H. Comm. on Public Works and Transp.,

May 21, 1990) (emphasis added). Congress adopted neither of those versions, instead adopting the Senate’s

phrasing nearly exactly as introduced, which provided

that only “fuel blends containing gasoline and 10 per

centum denatured anhydrous ethanol” would receive

the 1-psi waiver. S. 1360, 101st Cong. § 214 (as introduced, Sept. 14, 1989); see also Pub. L. No. 101-549,

§ 216, 104 Stat. 2399, 2490. The legislative history is

silent on why Congress rejected each House formulation and instead adopted the Senate version. This am-

18a

biguous history hardly suffices to overcome the plain

text, for courts “do not resort to legislative history to

cloud a statutory text that is clear.” Ratzlaf v. United

States, 510 U.S. 135, 147–48 (1994).

Lastly, EPA and Biofuel Intervenors maintain that

confining Subsection 7545(h)(4) to E10 is contrary to its

“ethanol-promoting purpose.” Biofuel Intervenors’ Br.

22; see Resp’t’s Br. 41. Perhaps so, in one respect. Yet

Subsection 7545(h) need not be understood to serve one

purpose at all costs. See Freeman v. Quicken Loans,

Inc., 566 U.S. 624, 637 (2012); cf. Ams. for Clean Energy v. EPA, 864 F.3d 691, 714 (D.C. Cir. 2017). A Senate

Committee Report on the 1990 Amendments highlights

that Congress was balancing multiple interests. As

EPA and Biofuel Intervenors maintain, scientific evidence available to Congress at the time of Subsection

7545(h)’s enactment shows that increasing the ethanol

content in a fuel blend beyond 10% reduces the blend’s

volatility. See, e.g., Robert L. Furey, Volatility Characteristics of Gasoline-Alcohol and Gasoline-Ether

Fuel Blends 23 (1985). But the record also reflects

congressional attention to wide-ranging economic, energy-security, and geopolitical implications of authorizing such blends. See S. Rep. No. 101-228, at 110 (1989).

In limiting the 1-psi allowance to blends “containing 10

percent ethanol,” Congress balanced those interests.

Subsection 7545(h)(4) thus reflects a compromise, not

simply a desire to maximize ethanol production at all

costs.

Because the text, structure, and legislative history

of Subsection 7545(h)(4) foreclose EPA’s application of

the 1-psi waiver to E15, the court must determine

whether that aspect of the E15 Rule is severable. Severability “depends on the issuing agency’s intent,”

North Carolina v. FERC, 730 F.2d 790, 796 (D.C. Cir.

19a

1984), and severance “is improper if there is substantial

doubt that the agency would have adopted the severed

portion on its own,” New Jersey v. EPA, 517 F.3d 574,

584 (D.C. Cir. 2008) (internal quotation marks omitted)

(quoting Davis Cty. Solid Waste Mgmt. v. EPA, 108

F.3d 1454, 1459 (D.C. Cir. 1997)). The court need not

reach the petitioners’ challenges to the E15 Rule’s interpretation of Subsection 7545(f)(1). EPA stated in

the preamble that its “substantial-similarity” finding

and interpretation of Subsection 7545(h)(4) in Section II

“establish a single, unified program that allows the introduction into commerce of E15 at 10.0 psi RVP during the summer driving season,” and that it “d[id] not

intend for any of these individual actions to be severable.” E15 Rule, 84 Fed. Reg. at 26,983. In contrast,

EPA stated that Section II was “severable from” Section III, addressing the RIN market, “as these are two

separate actions, each of which operates independently

from the other.” Id.

Accordingly, the court will sever and vacate Section II of the E15 Rule and dismiss the remaining petitions as moot.

21a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-1124

September Term, 2021

Consolidated with 19-1159, 19-1160, 19-1162

EPA-84FR26980

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

GROWTH ENERGY, ET AL.,

Intervenors.

Filed On: September 9, 2021

BEFORE: Rogers, Pillard, and Wilkins, Circuit Judges

ORDER

Upon consideration of the petition of intervenors

Growth Energy, National Corn Growers Association,

and Renewable Fuels Association for panel rehearing

filed on August 16, 2021, it is

ORDERED that the petition be denied.

22a

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Anya Karaman

Deputy Clerk

23a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-1124

September Term, 2021

Consolidated with 19-1159, 19-1160, 19-1162

EPA-84FR26980

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

GROWTH ENERGY, ET AL.,

Intervenors.

Filed On: September 9, 2021

BEFORE: Srinivasan, Chief Judge, and Henderson,

Rogers, Tatel, Millett, Pillard, Wilkins, Katsas, Rao*,

Walker, and Jackson, Circuit Judges

ORDER

Upon consideration of the petition of intervenors

Growth Energy, National Corn Growers Association,

and Renewable Fuels Association for rehearing en

Circuit Judge Rao did not participate in this matter.

24a

banc, and the absence of a request by any member of

the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Anya Karaman

Deputy Clerk

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APPENDIX D

RELEVANT STATUTORY AND

REGULATORY PROVISIONS

42 U.S.C. § 7545

§ 7545. Regulation of fuels

prohibition

(1) The Administrator may, from time to time on

the basis of information obtained under subsection (b)

of this section or other information available to him, by

regulation, control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any

fuel or fuel additive for use in a motor vehicle, motor

vehicle engine, or nonroad engine or nonroad vehicle if,

in the judgment of the Administrator, any fuel or fuel

additive or any emission product of such fuel or fuel additive causes, or contributes, to air pollution or water

pollution (including any degradation in the quality of

groundwater) that may reasonably be anticipated to

endanger the public health or welfare, or (B)2 if emission products of such fuel or fuel additive will impair to

a significant degree the performance of any emission

control device or system which is in general use, or

which the Administrator finds has been developed to a

point where in a reasonable time it would be in general

use were such regulation to be promulgated.

So in original. See Codifications and 2007 Amendments

notes set out under this section.

26a

(2)(A) No fuel, class of fuels, or fuel additive may be

controlled or prohibited by the Administrator pursuant

to clause (A) of paragraph (1)2 except after consideration of all relevant medical and scientific evidence

available to him, including consideration of other technologically or economically feasible means of achieving

emission standards under section 7521 of this title.

(B) No fuel or fuel additive may be controlled or

prohibited by the Administrator pursuant to clause (B)

of paragraph (1) except after consideration of available

scientific and economic data, including a cost benefit

analysis comparing emission control devices or systems

which are or will be in general use and require the proposed control or prohibition with emission control devices or systems which are or will be in general use and

do not require the proposed control or prohibition. On

request of a manufacturer of motor vehicles, motor vehicle engines, fuels, or fuel additives submitted within

10 days of notice of proposed rulemaking, the Administrator shall hold a public hearing and publish findings

with respect to any matter he is required to consider

under this subparagraph. Such findings shall be published at the time of promulgation of final regulations.

the Administrator under paragraph (1) unless he finds,

and publishes such finding, that in his judgment such

prohibition will not cause the use of any other fuel or

fuel additive which will produce emissions which will

endanger the public health or welfare to the same or

greater degree than the use of the fuel or fuel additive

proposed to be prohibited.

So in original. See Codifications and 2007 Amendments

notes set out under this section.

27a

(3)(A) For the purpose of obtaining evidence and

data to carry out paragraph (2), the Administrator may

require the manufacturer of any motor vehicle or motor

vehicle engine to furnish any information which has

been developed concerning the emissions from motor

vehicles resulting from the use of any fuel or fuel additive, or the effect of such use on the performance of any

emission control device or system.

(B) In obtaining information under subparagraph

(A), section 7607(a) of this title (relating to subpenas)

shall be applicable.

(4)(A) Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision

thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any control or

prohibition respecting any characteristic or component

of a fuel or fuel additive in a motor vehicle or motor vehicle engine—

(i) if the Administrator has found that no control or

prohibition of the characteristic or component of a

fuel or fuel additive under paragraph (1) is necessary and has published his finding in the Federal

(ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such

characteristic or component of a fuel or fuel additive, unless State prohibition or control is identical

to the prohibition or control prescribed by the Administrator.

(B) Any State for which application of section

7543(a) of this title has at any time been waived under

section 7543(b) of this title may at any time prescribe

and enforce, for the purpose of motor vehicle emission

28a

control, a control or prohibition respecting any fuel or

fuel additive.

(C)(i) A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or

prohibition respecting the use of a fuel or fuel additive

in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section

7410 of this title so provides. The Administrator may

approve such provision in an implementation plan, or

promulgate an implementation plan containing such a

provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or

secondary ambient air quality standard which the plan

implements. The Administrator may find that a State

control or prohibition is necessary to achieve that

standard if no other measures that would bring about

timely attainment exist, or if other measures exist and

are technically possible to implement, but are unreasonable or impracticable. The Administrator may make

a finding of necessity under this subparagraph even if

the plan for the area does not contain an approved

demonstration of timely attainment.

(ii) The Administrator may temporarily waive a

control or prohibition respecting the use of a fuel or fuel

additive required or regulated by the Administrator

pursuant to subsection (c), (h), (i), (k), or (m) of this section or prescribed in an applicable implementation plan

under section 7410 of this title approved by the Administrator under clause (i) of this subparagraph if, after

consultation with, and concurrence by, the Secretary of

Energy, the Administrator determines that—

(I) extreme and unusual fuel or fuel additive supply

circumstances exist in a State or region of the Na-

29a

tion which prevent the distribution of an adequate

supply of the fuel or fuel additive to consumers;

(II) such extreme and unusual fuel and fuel additive

supply circumstances are the result of a natural

disaster, an Act of God, a pipeline or refinery

equipment failure, or another event that could not

reasonably have been foreseen or prevented and

not the lack of prudent planning on the part of the

suppliers of the fuel or fuel additive to such State

or region; and

(III) it is in the public interest to grant the waiver

(for example, when a waiver is necessary to meet

projected temporary shortfalls in the supply of the

fuel or fuel additive in a State or region of the Nation which cannot otherwise be compensated for).

(iii) If the Administrator makes the determinations

required under clause (ii), such a temporary extreme

and unusual fuel and fuel additive supply circumstances

waiver shall be permitted only if—

(I) the waiver applies to the smallest geographic

area necessary to address the extreme and unusual

fuel and fuel additive supply circumstances;

(II) the waiver is effective for a period of 20 calendar days or, if the Administrator determines that a

shorter waiver period is adequate, for the shortest

practicable time period necessary to permit the

correction of the extreme and unusual fuel and fuel

additive supply circumstances and to mitigate impact on air quality;

(III) the waiver permits a transitional period, the

exact duration of which shall be determined by the

Administrator (but which shall be for the shortest

practicable period), after the termination of the

30a

temporary waiver to permit wholesalers and retailers to blend down their wholesale and retail inventory;

(IV) the waiver applies to all persons in the motor

fuel distribution system; and

(V) the Administrator has given public notice to all

parties in the motor fuel distribution system, and

local and State regulators, in the State or region to

be covered by the waiver.

The term “motor fuel distribution system” as used in

this clause shall be defined by the Administrator

through rulemaking.

(iv) Within 180 days of August 8, 2005, the Administrator shall promulgate regulations to implement

clauses (ii) and (iii).

(v)3 Nothing in this subparagraph shall—

(I) limit or otherwise affect the application of

any other waiver authority of the Administrator

pursuant to this section or pursuant to a regulation

promulgated pursuant to this section; and

(II) subject any State or person to an enforcement action, penalties, or liability solely arising

from actions taken pursuant to the issuance of a

waiver under this subparagraph.

(v)3(I) The Administrator shall have no authority,

when considering a State implementation plan or a

State implementation plan revision, to approve under

this paragraph any fuel included in such plan or revision if the effect of such approval increases the total

So in original. Two cls. (v) enacted.

31a

number of fuels approved under this paragraph as of

September 1, 2004, in all State implementation plans.

(II) The Administrator, in consultation with the

Secretary of Energy, shall determine the total number

of fuels approved under this paragraph as of September

1, 2004, in all State implementation plans and shall publish a list of such fuels, including the States and Petroleum Administration for Defense District in which they

are used, in the Federal Register for public review and

comment no later than 90 days after August 8, 2005.

(III) The Administrator shall remove a fuel from

the list published under subclause (II) if a fuel ceases to

be included in a State implementation plan or if a fuel in

a State implementation plan is identical to a Federal

fuel formulation implemented by the Administrator,

but the Administrator shall not reduce the total number of fuels authorized under the list published under

subclause (II).

(IV) Subclause (I) shall not limit the Administrator’s authority to approve a control or prohibition respecting any new fuel under this paragraph in a State

implementation plan or revision to a State implementation plan if such new fuel—

(aa) completely replaces a fuel on the list published

under subclause (II); or

(bb) does not increase the total number of fuels on

the list published under subclause (II) as of September 1, 2004.

In the event that the total number of fuels on the list

published under subclause (II) at the time of the Administrator’s consideration of a control or prohibition

respecting a new fuel is lower than the total number of

fuels on such list as of September 1, 2004, the Adminis-

32a

trator may approve a control or prohibition respecting

a new fuel under this subclause if the Administrator,

after consultation with the Secretary of Energy, publishes in the Federal Register after notice and comment

a finding that, in the Administrator’s judgment, such

control or prohibition respecting a new fuel will not

cause fuel supply or distribution interruptions or have a

significant adverse impact on fuel producibility in the

affected area or contiguous areas.

(V) The Administrator shall have no authority under this paragraph, when considering any particular

State’s implementation plan or a revision to that State’s

implementation plan, to approve any fuel unless that

fuel was, as of the date of such consideration, approved

in at least one State implementation plan in the applicable Petroleum Administration for Defense District.

However, the Administrator may approve as part of a

State implementation plan or State implementation

plan revision a fuel with a summertime Reid Vapor

Pressure of 7.0 psi. In no event shall such approval by

the Administrator cause an increase in the total number of fuels on the list published under subclause (II).

(VI) Nothing in this clause shall be construed to

have any effect regarding any available authority of

States to require the use of any fuel additive registered

in accordance with subsection (b), including any fuel

additive registered in accordance with subsection (b)

after August 8, 2005.

(f) New fuels and fuel additives

(1)(A) Effective upon March 31, 1977, it shall be unlawful for any manufacturer of any fuel or fuel additive

to first introduce into commerce, or to increase the con-

33a

centration in use of, any fuel or fuel additive for general

use in light duty 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 7525 of this title.

(B) Effective upon November 15, 1990, it shall be

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 7525 of this title.

(2) Effective November 30, 1977, it shall be unlawful for any manufacturer of any fuel to introduce into

commerce any gasoline which contains a concentration

of manganese in excess of .0625 grams per gallon of

fuel, except as otherwise provided pursuant to a waiver

under paragraph (4).

(3) Any manufacturer of any fuel or fuel additive

which prior to March 31, 1977, and after January 1,

1974, first introduced into commerce or increased the

concentration in use of a fuel or fuel additive that would

otherwise have been prohibited under paragraph (1)(A)

if introduced on or after March 31, 1977 shall, not later

than September 15, 1978, cease to distribute such fuel

or fuel additive in commerce. During the period beginning 180 days after August 7, 1977, and before September 15, 1978, the Administrator shall prohibit, or restrict the concentration of any fuel additive which he

determines will cause or contribute to the failure of an

emission control device or system (over the useful life

34a

of any vehicle in which such device or system is used) to

achieve compliance by the vehicle with the emission

standards with respect to which it has been certified

under section 7525 of this title.

(4) The Administrator, upon application of any

manufacturer of any fuel or fuel additive, may waive

the prohibitions established under paragraph (1) or (3)

of this subsection or the limitation specified in paragraph (2) of this subsection, if he determines that the

applicant has established that such fuel or fuel additive

or a specified concentration thereof, and the emission

products of such fuel or fuel additive or 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 with respect to

which it has been certified pursuant to sections 7525

and 7547(a) of this title. The Administrator shall take

final action to grant or deny an application submitted

under this paragraph, after public notice and comment,

within 270 days of the receipt of such an application.

(5) No action of the Administrator under this section may be stayed by any court pending judicial review of such action.

(h) Reid Vapor Pressure requirements

(1) Prohibition

Not later than 6 months after November 15,

1990, the Administrator shall promulgate regulations making it unlawful for any person during the

high ozone season (as defined by the Administra-

35a

tor) to sell, offer for sale, dispense, supply, offer for

supply, transport, or introduce into commerce gasoline with a Reid Vapor Pressure in excess of 9.0

pounds per square inch (psi). Such regulations

shall also establish more stringent Reid Vapor

Pressure standards in a nonattainment area as the

Administrator finds necessary to generally achieve

comparable evaporative emissions (on a per-vehicle

basis) in nonattainment areas, taking into consideration the enforceability of such standards, the need

of an area for emission control, and economic factors.

(2) Attainment areas

The regulations under this subsection shall not

make it unlawful for any person to sell, offer for

supply, transport, or introduce into commerce gasoline with a Reid Vapor Pressure of 9.0 pounds per

square inch (psi) or lower in any area designated

under section 7407 of this title as an attainment area. Notwithstanding the preceding sentence, the

Administrator may impose a Reid vapor pressure

requirement lower than 9.0 pounds per square inch

(psi) in any area, formerly an ozone nonattainment

area, which has been redesignated as an attainment

area.

(3) Effective date; enforcement

The regulations under this subsection shall

provide that the requirements of this subsection

shall take effect not later than the high ozone season for 1992, and shall include such provisions as

the Administrator determines are necessary to implement and enforce the requirements of this subsection.

36a

(4) Ethanol waiver

For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol, the Reid vapor

pressure limitation under this subsection shall be

one pound per square inch (psi) greater than the

applicable Reid vapor pressure limitations established under paragraph (1); Provided, however,

That a distributor, blender, marketer, reseller, carrier, retailer, or wholesale purchaser-consumer

shall be deemed to be in full compliance with the

provisions of this subsection and the regulations

promulgated thereunder if it can demonstrate (by

showing receipt of a certification or other evidence

acceptable to the Administrator) that—

(A) the gasoline portion of the blend complies with the Reid vapor pressure limitations

promulgated pursuant to this subsection;

(B) the ethanol portion of the blend does

not exceed its waiver condition under subsection (f)(4); and

has been added to increase the Reid Vapor

Pressure of the ethanol portion of the blend.

(5) Exclusion from ethanol waiver

(A) Promulgation of regulations

Upon notification, accompanied by supporting documentation, from the Governor of a

State that the Reid vapor pressure limitation

established by paragraph (4) will increase

emissions that contribute to air pollution in any

area in the State, the Administrator shall, by

regulation, apply, in lieu of the Reid vapor

pressure limitation established by paragraph

37a

(4), the Reid vapor pressure limitation established by paragraph (1) to all fuel blends containing gasoline and 10 percent denatured anhydrous ethanol that are sold, offered for sale,

dispensed, supplied, offered for supply, transported, or introduced into commerce in the area

during the high ozone season.

(B) Deadline for promulgation

The Administrator shall promulgate regulations under subparagraph (A) not later than

90 days after the date of receipt of a notification from a Governor under that subparagraph.

(i) In general

With respect to an area in a State for

which the Governor submits a notification

under subparagraph (A), the regulations

under that subparagraph shall take effect

on the later of—

(I) the first day of the first high

ozone season for the area that begins

after the date of receipt of the notification; or

(II) 1 year after the date of receipt

of the notification.

(ii) Extension of effective date based

on determination of insufficient supply

(I) In general

If, after receipt of a notification

with respect to an area from a Governor of a State under subparagraph (A),

38a

the Administrator determines, on the

Administrator’s own motion or on petition of any person and after consultation with the Secretary of Energy, that

the promulgation of regulations described in subparagraph (A) would result in an insufficient supply of gasoline

in the State, the Administrator, by

regulation—

(aa) shall extend the effective

date of the regulations under

clause (i) with respect to the area

for not more than 1 year; and

(bb) may renew the extension

under item (aa) for two additional

periods, each of which shall not exceed 1 year.

(II) Deadline for action on petitions

The Administrator shall act on any

petition submitted under subclause (I)

not later than 180 days after the date of

receipt of the petition.

(6) Areas covered

The provisions of this subsection shall apply only to the 48 contiguous States and the District of

Columbia.

(o) Renewable fuel program

(1) Definitions

In this section:

39a

(A) Additional renewable fuel

The term “additional renewable fuel”

means fuel that is produced from renewable biomass and that is used to replace or reduce the

quantity of fossil fuel present in home heating

oil or jet fuel.

(B) Advanced biofuel

(i) In general

The term “advanced biofuel” means

renewable fuel, other than ethanol derived

from corn starch, that has lifecycle greenhouse gas emissions, as determined by the

Administrator, after notice and opportunity for comment, that are at least 50 percent

less than baseline lifecycle greenhouse gas

emissions.

(ii) Inclusions

The types of fuels eligible for consideration as “advanced biofuel” may include

any of the following:

(I) Ethanol derived from cellulose,

hemicellulose, or lignin.

(II) Ethanol derived from sugar or

starch (other than corn starch).

(III) Ethanol derived from waste

material, including crop residue, other

vegetative waste material, animal

waste, and food waste and yard waste.

(IV) Biomass-based diesel.

(V) Biogas (including landfill gas

and sewage waste treatment gas) pro-

40a

duced through the conversion of organic matter from renewable biomass.

(VI) Butanol or other alcohols produced through the conversion of organic matter from renewable biomass.

(VII) Other fuel derived from cellulosic biomass.

emissions

lifecycle

greenhouse

gas

The term “baseline lifecycle greenhouse

gas emissions” means the average lifecycle

greenhouse gas emissions, as determined by

the Administrator, after notice and opportunity

for comment, for gasoline or diesel (whichever

is being replaced by the renewable fuel) sold or

distributed as transportation fuel in 2005.

(D) Biomass-based diesel

The term “biomass-based diesel” means

renewable fuel that is biodiesel as defined in

section 13220(f) of this title and that has lifecycle greenhouse gas emissions, as determined by

the Administrator, after notice and opportunity

for comment, that are at least 50 percent less

than the baseline lifecycle greenhouse gas

emissions. Notwithstanding the preceding sentence, renewable fuel derived from coprocessing biomass with a petroleum feedstock

shall be advanced biofuel if it meets the requirements of subparagraph (B), but is not biomass-based diesel.

41a

(E) Cellulosic biofuel

The term “cellulosic biofuel” means renewable fuel derived from any cellulose, hemicellulose, or lignin that is derived from renewable

biomass and that has lifecycle greenhouse gas

emissions, as determined by the Administrator,

that are at least 60 percent less than the baseline lifecycle greenhouse gas emissions.

(F) Conventional biofuel

The term “conventional biofuel” means renewable fuel that is ethanol derived from corn

starch.

(G) Greenhouse gas

The term “greenhouse gas” means carbon

dioxide, hydrofluorocarbons, methane, nitrous

oxide, perfluorocarbons,8 sulfur hexafluoride.

The Administrator may include any other anthropogenically-emitted gas that is determined

by the Administrator, after notice and comment, to contribute to global warming.

(H) Lifecycle greenhouse gas emissions

The term “lifecycle greenhouse gas emissions” means the aggregate quantity of greenhouse gas emissions (including direct emissions

and significant indirect emissions such as significant emissions from land use changes), as

determined by the Administrator, related to

the full fuel lifecycle, including all stages of fuel

and feedstock production and distribution, from

feedstock generation or extraction through the

distribution and delivery and use of the finished fuel to the ultimate consumer, where the

42a

mass values for all greenhouse gases are adjusted to account for their relative global

warming potential.

(I) Renewable biomass

The term “renewable biomass” means each

of the following:

(i) Planted crops and crop residue harvested from agricultural land cleared or

cultivated at any time prior to December

19, 2007, that is either actively managed or

fallow, and nonforested.

(ii) Planted trees and tree residue from

actively managed tree plantations on nonfederal9 land cleared at any time prior to

December 19, 2007, including land belonging to an Indian tribe or an Indian individual, that is held in trust by the United

States or subject to a restriction against alienation imposed by the United States.

(iii) Animal waste material and animal

byproducts.

(iv) Slash and pre-commercial thinnings that are from non-federal9 forestlands, including forestlands belonging to

an Indian tribe or an Indian individual, that

are held in trust by the United States or

subject to a restriction against alienation

imposed by the United States, but not forests or forestlands that are ecological

communities with a global or State ranking

of critically imperiled, imperiled, or rare

pursuant to a State Natural Heritage Pro-

43a

gram, old growth forest, or late successional forest.

(v) Biomass obtained from the immediate vicinity of buildings and other areas

regularly occupied by people, or of public

infrastructure, at risk from wildfire.

(vi) Algae.

(vii) Separated yard waste or food

waste, including recycled cooking and trap

grease.

(J) Renewable fuel

The term “renewable fuel” means fuel that

is produced from renewable biomass and that is

used to replace or reduce the quantity of fossil

fuel present in a transportation fuel.

(K) Small refinery

The term “small refinery” means a refinery

for which the average aggregate daily crude oil

throughput for a calendar year (as determined

by dividing the aggregate throughput for the

calendar year by the number of days in the calendar year) does not exceed 75,000 barrels.

(L) Transportation fuel

The term “transportation fuel” means fuel

for use in motor vehicles, motor vehicle engines, nonroad vehicles, or nonroad engines

(except for ocean-going vessels).

44a

(2) Renewable fuel program

(A) Regulations

(i) In general

Not later than 1 year after August 8,

2005, the Administrator shall promulgate

regulations to ensure that gasoline sold or

introduced into commerce in the United

States (except in noncontiguous States or

territories), on an annual average basis,

contains the applicable volume of renewable fuel determined in accordance with

subparagraph (B). Not later than 1 year

after December 19, 2007, the Administrator

shall revise the regulations under this paragraph to ensure that transportation fuel

sold or introduced into commerce in the

United States (except in noncontiguous

States or territories), on an annual average

basis, contains at least the applicable volume of renewable fuel, advanced biofuel,

cellulosic biofuel, and biomass-based diesel,

determined in accordance with subparagraph (B) and, in the case of any such renewable fuel produced from new facilities

that commence construction after December 19, 2007, achieves at least a 20 percent

reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.

(ii) Noncontiguous State opt-in

(I) In general

On the petition of a noncontiguous

State or territory, the Administrator

45a

may allow the renewable fuel program

established under this subsection to

apply in the noncontiguous State or

territory at the same time or any time

after the Administrator promulgates

regulations under this subparagraph.

(II) Other actions

In carrying out this clause, the

Administrator may—

(aa) issue or revise regulations

under this paragraph;

(bb) establish applicable percentages under paragraph (3);

(cc) provide for the generation

of credits under paragraph (5); and

(dd) take such other actions as

are necessary to allow for the application of the renewable fuels

program in a noncontiguous State

or territory.

(iii) Provisions of regulations

Regardless of the date of promulgation,

the regulations promulgated under clause

(i)—

(I) shall contain compliance provisions applicable to refineries, blenders,

distributors, and importers, as appropriate, to ensure that the requirements

of this paragraph are met; but

(II) shall not—

46a

(aa) restrict geographic areas

in which renewable fuel may be

used; or

(bb) impose any per-gallon obligation for the use of renewable

fuel.

(iv) Requirement in case of failure to

promulgate regulations

If the Administrator does not promulgate regulations under clause (i), the percentage of renewable fuel in gasoline sold

or dispensed to consumers in the United

States, on a volume basis, shall be 2.78 percent for calendar year 2006.

(B) Applicable volumes

(i) Calendar years after 2005

(I) Renewable fuel

For the purpose of subparagraph

(A), the applicable volume of renewable

fuel for the calendar years 2006

through 2022 shall be determined in accordance with the following table:

Calendar year:

Applicable

volume of

renewable

fuel (in

billions of

gallons):

2006 ...............................................................

4.0

2007 ...............................................................

4.7

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2008 ...............................................................

9.0

2009 ...............................................................

11.1

2010 ...............................................................

12.95

2011 ...............................................................

13.95

2012 ...............................................................

15.2

2013 ...............................................................

16.55

2014 ...............................................................

18.15

2015 ...............................................................

20.5

2016 ...............................................................

22.25

2017 ...............................................................

24.0

2018 ...............................................................

26.0

2019 ...............................................................

28.0

2020 ...............................................................

30.0

2021 ...............................................................

33.0

2022 ...............................................................

36.0

(II) Advanced biofuel

For the purpose of subparagraph

(A), of the volume of renewable fuel

required under subclause (I), the applicable volume of advanced biofuel for

the calendar years 2009 through 2022

shall be determined in accordance with

the following table:

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Applicable

volume of

advanced

biofuel (in

billions of

gallons):

Calendar year:

2009 ...............................................................

0.6

2010 ...............................................................

0.95

2011 ...............................................................

1.35

2012 ...............................................................

2.0

2013 ...............................................................

2.75

2014 ...............................................................

3.75

2015 ...............................................................

5.5

2016 ...............................................................

7.25

2017 ...............................................................

9.0

2018 ...............................................................

11.0

2019 ...............................................................

13.0

2020 ...............................................................

15.0

2021 ...............................................................

18.0

2022 ...............................................................

21.0

(III) Cellulosic biofuel

For the purpose of subparagraph

(A), of the volume of advanced biofuel

required under subclause (II), the applicable volume of cellulosic biofuel for

the calendar years 2010 through 2022

shall be determined in accordance with

the following table:

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Applicable

volume of

cellulosic

biofuel (in

billions of

gallons):

Calendar year:

2010 ...............................................................

0.1

2011 ...............................................................

0.25

2012 ...............................................................

0.5

2013 ...............................................................

1.0

2014 ...............................................................

1.75

2015 ...............................................................

3.0

2016 ...............................................................

4.25

2017 ...............................................................

5.5

2018 ...............................................................

7.0

2019 ...............................................................

8.5

2020 ...............................................................

10.5

2021 ...............................................................

13.5

2022 ...............................................................

16.0

(IV) Biomass-based diesel

For the purpose of subparagraph

(A), of the volume of advanced biofuel

required under subclause (II), the applicable volume of biomass-based diesel

for the calendar years 2009 through

2012 shall be determined in accordance

with the following table:

50a

Applicable

volume of

biomass

based diesel

(in billions of

gallons):

Calendar year:

2009 ...............................................................

0.5

2010 ...............................................................

0.65

2011 ...............................................................

0.80

2012 ...............................................................

1.0

(ii) Other calendar years

For the purposes of subparagraph (A),

the applicable volumes of each fuel specified in the tables in clause (i) for calendar

years after the calendar years specified in

the tables shall be determined by the Administrator, in coordination with the Secretary of Energy and the Secretary of Agriculture, based on a review of the implementation of the program during calendar

years specified in the tables, and an analysis of—

(I) the impact of the production

and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands,

ecosystems, wildlife habitat, water

quality, and water supply;

(II) the impact of renewable fuels

on the energy security of the United

States;

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(III) the expected annual rate of

future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel

and biomass-based diesel);

(IV) the impact of renewable fuels

on the infrastructure of the United

States, including deliverability of materials, goods, and products other than

renewable fuel, and the sufficiency of

infrastructure to deliver and use renewable fuel;

(V) the impact of the use of renewable fuels on the cost to consumers of

transportation fuel and on the cost to

transport goods; and

(VI) the impact of the use of renewable fuels on other factors, including job creation, the price and supply of

agricultural commodities, rural economic development, and food prices.

The Administrator shall promulgate rules

establishing the applicable volumes under

this clause no later than 14 months before

the first year for which such applicable volume will apply.

(iii) Applicable volume of advanced

biofuel

For the purpose of making the determinations in clause (ii), for each calendar

year, the applicable volume of advanced

biofuel shall be at least the same percent-

52a

age of the applicable volume of renewable

fuel as in calendar year 2022.

(iv) Applicable volume of cellulosic

biofuel

For the purpose of making the determinations in clause (ii), for each calendar

year, the applicable volume of cellulosic

biofuel established by the Administrator

shall be based on the assumption that the

Administrator will not need to issue a

waiver for such years under paragraph

(7)(D).

(v) Minimum applicable volume of biomass-based diesel

For the purpose of making the determinations in clause (ii), the applicable volume of biomass-based diesel shall not be

less than the applicable volume listed in

clause (i)(IV) for calendar year 2012.

(3) Applicable percentages

(A) Provision of estimate of volumes of

gasoline sales

Not later than October 31 of each of calendar years 2005 through 2021, the Administrator

of the Energy Information Administration shall

provide to the Administrator of the Environmental Protection Agency an estimate, with

respect to the following calendar year, of the

volumes of transportation fuel, biomass-based

diesel, and cellulosic biofuel projected to be sold

or introduced into commerce in the United

States.

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(B) Determination of applicable percentages

(i) In general

Not later than November 30 of each of

calendar years 2005 through 2021, based on

the estimate provided under subparagraph

(A), the Administrator of the Environmental Protection Agency shall determine and

publish in the Federal Register, with respect to the following calendar year, the

renewable fuel obligation that ensures that

the requirements of paragraph (2) are met.

(ii) Required elements

The renewable fuel obligation determined for a calendar year under clause (i)

shall—

(I) be applicable to refineries,

blenders, and importers, as appropriate;

(II) be expressed in terms of a volume percentage of transportation fuel

sold or introduced into commerce in the

United States; and

(III) subject to subparagraph

(C)(i), consist of a single applicable percentage that applies to all categories of

persons specified in subclause (I).

In determining the applicable percentage

for a calendar year, the Administrator shall

make adjustments—

54a

(i) to prevent the imposition of redundant obligations on any person specified in

subparagraph (B)(ii)(I); and

(ii) to account for the use of renewable

fuel during the previous calendar year by

small refineries that are exempt under

paragraph (9).

(4) Modification of greenhouse gas reduction

percentages

(A) In general

The Administrator may, in the regulations

under the last sentence of paragraph (2)(A)(i),

adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle greenhouse gas

emissions specified in paragraphs (2)(A)(i) (relating to renewable fuel), (1)(D) (relating to biomass-based diesel), (1)(B)(i) (relating to advanced biofuel), and (1)(E) (relating to cellulosic biofuel) to a lower percentage. For the 50

and 60 percent reductions, the Administrator

may make such an adjustment only if he determines that generally such reduction is not

commercially feasible for fuels made using a

variety of feedstocks, technologies, and processes to meet the applicable reduction.

(B) Amount of adjustment

In promulgating regulations under this

paragraph, the specified 50 percent reduction

in greenhouse gas emissions from advanced

biofuel and in biomass-based diesel may not be

reduced below 40 percent. The specified 20

percent reduction in greenhouse gas emissions

from renewable fuel may not be reduced below

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10 percent, and the specified 60 percent reduction in greenhouse gas emissions from cellulosic

biofuel may not be reduced below 50 percent.

An adjustment under this paragraph to a

percent less than the specified 20 percent

greenhouse gas reduction for renewable fuel

shall be the minimum possible adjustment, and

the adjusted greenhouse gas reduction shall be

established by the Administrator at the maximum achievable level, taking cost in consideration, for natural gas fired corn-based ethanol

plants, allowing for the use of a variety of technologies and processes. An adjustment in the

50 or 60 percent greenhouse gas levels shall be

the minimum possible adjustment for the fuel

or fuels concerned, and the adjusted greenhouse gas reduction shall be established at the

maximum achievable level, taking cost in consideration, allowing for the use of a variety of

feedstocks, technologies, and processes.

(D) 5-year review

Whenever the Administrator makes any

adjustment under this paragraph, not later

than 5 years thereafter he shall review and revise (based upon the same criteria and standards as required for the initial adjustment) the

regulations establishing the adjusted level.

(E) Subsequent adjustments

After the Administrator has promulgated a

final rule under the last sentence of paragraph

(2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emissions, ex-

56a

cept as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels unless he determines that there has been a significant change

in the analytical methodology used for determining the lifecycle greenhouse gas emissions.

If he makes such determination, he may adjust

the 20, 50, or 60 percent reduction levels

through rulemaking using the criteria and

standards set forth in this paragraph.

(F) Limit on upward adjustments

If, under subparagraph (D) or (E), the Administrator revises a percent level adjusted as

provided in subparagraphs (A), (B), and (C) to a

higher percent, such higher percent may not

exceed the applicable percent specified in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or (1)(E).

(G) Applicability of adjustments

If the Administrator adjusts, or revises, a

percent level referred to in this paragraph or

makes a change in the analytical methodology

used for determining the lifecycle greenhouse

gas emissions, such adjustment, revision, or

change (or any combination thereof) shall only

apply to renewable fuel from new facilities that

commence construction after the effective date

of such adjustment, revision, or change.

(5) Credit program

(A) In general

The regulations promulgated under paragraph (2)(A) shall provide—

57a

(i) for the generation of an appropriate

amount of credits by any person that refines, blends, or imports gasoline that contains a quantity of renewable fuel that is

greater than the quantity required under

paragraph (2);

(ii) for the generation of an appropriate amount of credits for biodiesel; and

(iii) for the generation of credits by

small refineries in accordance with paragraph (9)(C).

(B) Use of credits

A person that generates credits under subparagraph (A) may use the credits, or transfer

all or a portion of the credits to another person,

for the purpose of complying with paragraph

(2).

A credit generated under this paragraph

shall be valid to show compliance for the 12

months as of the date of generation.

(D) Inability to generate or purchase sufficient credits

The regulations promulgated under paragraph (2)(A) shall include provisions allowing

any person that is unable to generate or purchase sufficient credits to meet the requirements of paragraph (2) to carry forward a renewable fuel deficit on condition that the person, in the calendar year following the year in

which the renewable fuel deficit is created—

58a

(i) achieves compliance with the renewable fuel requirement under paragraph

(2); and

(ii) generates or purchases additional

renewable fuel credits to offset the renewable fuel deficit of the previous year.

(E) Credits for additional renewable fuel

The Administrator may issue regulations

providing: (i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports additional renewable

fuels specified by the Administrator; and (ii) for

the use of such credits by the generator, or the

transfer of all or a portion of the credits to another person, for the purpose of complying with

paragraph (2).

(6) Seasonal variations in renewable fuel use

(A) Study

For each of calendar years 2006 through

2012, the Administrator of the Energy Information Administration shall conduct a study of

renewable fuel blending to determine whether

there are excessive seasonal variations in the

use of renewable fuel.

(B) Regulation of excessive seasonal variations

If, for any calendar year, the Administrator

of the Energy Information Administration,

based on the study under subparagraph (A),

makes the determinations specified in subparagraph (C), the Administrator of the Environmental Protection Agency shall promulgate

59a

regulations to ensure that 25 percent or more

of the quantity of renewable fuel necessary to

meet the requirements of paragraph (2) is used

during each of the 2 periods specified in subparagraph (D) of each subsequent calendar

year.

The determinations referred to in subparagraph (B) are that—

(i) less than 25 percent of the quantity

of renewable fuel necessary to meet the requirements of paragraph (2) has been used

during 1 of the 2 periods specified in subparagraph (D) of the calendar year;

(ii) a pattern of excessive seasonal variation described in clause (i) will continue in

subsequent calendar years; and

(iii) promulgating regulations or other

requirements to impose a 25 percent or

more seasonal use of renewable fuels will

not prevent or interfere with the attainment of national ambient air quality standards or significantly increase the price of

motor fuels to the consumer.

(D) Periods

The 2 periods referred to in this paragraph

are—

(i) April through September; and

(ii) January through March and October through December.

60a

(E) Exclusion

Renewable fuel blended or consumed in

calendar year 2006 in a State that has received

a waiver under section 7543(b) of this title shall

not be included in the study under subparagraph (A).

(F) State exemption from seasonality requirements

Notwithstanding any other provision of

law, the seasonality requirement relating to

renewable fuel use established by this paragraph shall not apply to any State that has received a waiver under section 7543(b) of this title or any State dependent on refineries in such

State for gasoline supplies.

(7) Waivers

(A) In general

The Administrator, in consultation with the

Secretary of Agriculture and the Secretary of

Energy, may waive the requirements of paragraph (2) in whole or in part on petition by one

or more States, by any person subject to the

requirements of this subsection, or by the Administrator on his own motion by reducing the

national quantity of renewable fuel required

under paragraph (2)—

(i) based on a determination by the

Administrator, after public notice and opportunity for comment, that implementation of the requirement would severely

harm the economy or environment of a

State, a region, or the United States; or

61a

(ii) based on a determination by the

Administrator, after public notice and opportunity for comment, that there is an inadequate domestic supply.

(B) Petitions for waivers

The Administrator, in consultation with the

Secretary of Agriculture and the Secretary of

Energy, shall approve or disapprove a petition

for a waiver of the requirements of paragraph

(2) within 90 days after the date on which the

petition is received by the Administrator.

A waiver granted under subparagraph (A)

shall terminate after 1 year, but may be renewed by the Administrator after consultation

with the Secretary of Agriculture and the Secretary of Energy.

(D) Cellulosic biofuel

(i) For any calendar year for which the projected volume of cellulosic biofuel production is

less than the minimum applicable volume established under paragraph (2)(B), as determined by the Administrator based on the estimate provided under paragraph (3)(A), not later than November 30 of the preceding calendar

year, the Administrator shall reduce the applicable volume of cellulosic biofuel required under paragraph (2)(B) to the projected volume

available during that calendar year. For any

calendar year in which the Administrator

makes such a reduction, the Administrator may

also reduce the applicable volume of renewable

fuel and advanced biofuels requirement estab-

62a

lished under paragraph (2)(B) by the same or a

lesser volume.

(ii) Whenever the Administrator reduces

the minimum cellulosic biofuel volume under

this subparagraph, the Administrator shall

make available for sale cellulosic biofuel credits

at the higher of $0.25 per gallon or the amount

by which $3.00 per gallon exceeds the average

wholesale price of a gallon of gasoline in the

United States. Such amounts shall be adjusted

for inflation by the Administrator for years after 2008.

(iii) Eighteen months after December 19,

2007, the Administrator shall promulgate regulations to govern the issuance of credits under

this subparagraph. The regulations shall set

forth the method for determining the exact

price of credits in the event of a waiver. The

price of such credits shall not be changed more

frequently than once each quarter. These regulations shall include such provisions, including

limiting the credits’ uses and useful life, as the

Administrator deems appropriate to assist

market liquidity and transparency, to provide

appropriate certainty for regulated entities and

renewable fuel producers, and to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for

such other purposes as the Administrator determines will help achieve the goals of this subsection. The regulations shall limit the number

of cellulosic biofuel credits for any calendar

year to the minimum applicable volume (as reduced under this subparagraph) of cellulosic

biofuel for that year.

63a

(E) Biomass-based diesel

(i) Market evaluation

The Administrator, in consultation

with the Secretary of Energy and the Secretary of Agriculture, shall periodically

evaluate the impact of the biomass-based

diesel requirements established under this

paragraph on the price of diesel fuel.

(ii) Waiver

If the Administrator determines that

there is a significant renewable feedstock

disruption or other market circumstances

that would make the price of biomassbased diesel fuel increase significantly, the

Administrator, in consultation with the

Secretary of Energy and the Secretary of

Agriculture, shall issue an order to reduce,

for up to a 60-day period, the quantity of

biomass-based diesel required under subparagraph (A) by an appropriate quantity

that does not exceed 15 percent of the applicable annual requirement for biomassbased diesel. For any calendar year in

which the Administrator makes a reduction

under this subparagraph, the Administrator may also reduce the applicable volume

of renewable fuel and advanced biofuels

requirement established under paragraph

(2)(B) by the same or a lesser volume.

(iii) Extensions

If the Administrator determines that

the feedstock disruption or circumstances

described in clause (ii) is continuing beyond

64a

the 60-day period described in clause (ii) or

this clause, the Administrator, in consultation with the Secretary of Energy and the

Secretary of Agriculture, may issue an order to reduce, for up to an additional 60-day

period, the quantity of biomass-based diesel required under subparagraph (A) by an

appropriate quantity that does not exceed

an additional 15 percent of the applicable

annual requirement for biomass-based diesel.

(F) Modification of applicable volumes

For any of the tables in paragraph (2)(B), if

the Administrator waives—

(i) at least 20 percent of the applicable

volume requirement set forth in any such

table for 2 consecutive years; or

(ii) at least 50 percent of such volume

requirement for a single year,

the Administrator shall promulgate a rule

(within 1 year after issuing such waiver) that

modifies the applicable volumes set forth in the

table concerned for all years following the final

year to which the waiver applies, except that

no such modification in applicable volumes shall

be made for any year before 2016. In promulgating such a rule, the Administrator shall

comply with the processes, criteria, and standards set forth in paragraph (2)(B)(ii).

65a

(8) Study and waiver for initial year of program

(A) In general

Not later than 180 days after August 8,

2005, the Secretary of Energy shall conduct for

the Administrator a study assessing whether

the renewable fuel requirement under paragraph (2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or State basis.

(B) Required evaluations

The study shall evaluate renewable fuel—

(i) supplies and prices;

(ii) blendstock supplies; and

(iii) supply and distribution system capabilities.

Based on the results of the study, the Secretary of Energy shall make specific recommendations to the Administrator concerning

waiver of the requirements of paragraph (2), in

whole or in part, to prevent any adverse impacts described in subparagraph (A).

(D) Waiver

(i) In general

Not later than 270 days after August 8,

2005, the Administrator shall, if and to the

extent recommended by the Secretary of

Energy under subparagraph (C), waive, in

whole or in part, the renewable fuel re-

66a

quirement under paragraph (2) by reducing

the national quantity of renewable fuel required under paragraph (2) in calendar

year 2006.

(ii) No effect on waiver authority

Clause (i) does not limit the authority

of the Administrator to waive the requirements of paragraph (2) in whole, or in part,

under paragraph (7).

(9) Small refineries

(A) Temporary exemption

(i) In general

The requirements of paragraph (2)

shall not apply to small refineries until calendar year 2011.

(ii) Extension of exemption

(I) Study by Secretary of Energy

Not later than December 31, 2008,

the Secretary of Energy shall conduct

for the Administrator a study to determine whether compliance with the

requirements of paragraph (2) would

impose a disproportionate economic

hardship on small refineries.

(II) Extension of exemption

In the case of a small refinery that

the Secretary of Energy determines

under subclause (I) would be subject to

a disproportionate economic hardship if

required to comply with paragraph (2),

the Administrator shall extend the ex-

67a

emption under clause (i) for the small

refinery for a period of not less than 2

additional years.

(B) Petitions based on disproportionate

economic hardship

(i) Extension of exemption

A small refinery may at any time petition the Administrator for an extension of

the exemption under subparagraph (A) for

the reason of disproportionate economic

hardship.

(ii) Evaluation of petitions

In evaluating a petition under clause

(i), the Administrator, in consultation with

the Secretary of Energy, shall consider the

findings of the study under subparagraph

(A)(ii) and other economic factors.

(iii) Deadline for action on petitions

The Administrator shall act on any petition submitted by a small refinery for a

hardship exemption not later than 90 days

after the date of receipt of the petition.

If a small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A), the regulations

promulgated under paragraph (2)(A) shall provide for the generation of credits by the small

refinery under paragraph (5) beginning in the

calendar year following the date of notification.

68a

(D) Opt-in for small refineries

A small refinery shall be subject to the requirements of paragraph (2) if the small refinery notifies the Administrator that the small

refinery waives the exemption under subparagraph (A).

(10) Ethanol market concentration analysis

(A) Analysis

(i) In general

Not later than 180 days after August 8,

2005, and annually thereafter, the Federal

Trade Commission shall perform a market

concentration analysis of the ethanol production industry using the HerfindahlHirschman Index to determine whether

there is sufficient competition among industry participants to avoid price-setting

and other anticompetitive behavior.

(ii) Scoring

For the purpose of scoring under

clause (i) using the Herfindahl-Hirschman

Index, all marketing arrangements among

industry participants shall be considered.

(B) Report

Not later than December 1, 2005, and annually thereafter, the Federal Trade Commission shall submit to Congress and the Administrator a report on the results of the market

concentration analysis performed under subparagraph (A)(i).

69a

(11) Periodic reviews

To allow for the appropriate adjustment of the

requirements described in subparagraph (B) of

paragraph (2), the Administrator shall conduct periodic reviews of—

(A) existing technologies;

(B) the feasibility of achieving compliance

with the requirements; and

and entity described in paragraph (2).

(12) Effect on other provisions

Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be

construed to affect the regulatory status of carbon

dioxide or any other greenhouse gas, or to expand

or limit regulatory authority regarding carbon dioxide or any other greenhouse gas, for purposes of

other provisions (including section 7475) of this

chapter. The previous sentence shall not affect implementation and enforcement of this subsection.

70a

40 C.F.R. § 80.27

§ 80.27 Controls and prohibitions on gasoline volatility.

(a)(1) Prohibited activities in 1991. During the 1991

regulatory control periods, no refiner, importer, distributor, reseller, carrier, retailer or wholesale purchaser-consumer shall sell, offer for sale, dispense, supply, offer for supply, or transport gasoline whose Reid

vapor pressure exceeds the applicable standard. As

used in this section and § 80.28, “applicable standard”

means the standard listed in this paragraph for the geographical area and time period in which the gasoline is

intended to be dispensed to motor vehicles or, if such

area and time period cannot be determined, the standard listed in this paragraph that specifies the lowest

Reid vapor pressure for the year in which the gasoline

is being sampled. As used in this section and § 80.28,

“regulatory control periods” mean June 1 to September

15 for retail outlets and wholesale purchaser-consumers

and May 1 to September 15 for all other facilities.

(2) Prohibited activities in 1992 and beyond. During the 1992 and later high ozone seasons no person, including without limitation, no retailer or wholesale purchaser-consumer, and during the 1992 and later regulatory control periods, no refiner, importer, distributor,

reseller, or carrier shall sell, offer for sale, dispense,

supply, offer for supply, transport or introduce into

commerce gasoline whose Reid vapor pressure exceeds

the applicable standard. As used in this section and

§ 80.28, “applicable standard” means:

71a

(i) 9.0 psi for all designated volatility attainment

areas; and

(ii) The standard listed in this paragraph for the

state and time period in which the gasoline is intended

to be dispensed to motor vehicles for any designated

volatility nonattainment area within such State or, if

such area and time period cannot be determined, the

standard listed in this paragraph that specifies the lowest Reid vapor pressure for the year in which the gasoline is sampled. Designated volatility attainment and

designated volatility nonattainment areas and their exact boundaries are described in 40 CFR part 81, or such

part as shall later be designated for that purpose. As

used in this section and § 80.27, “high ozone season”

means the period from June 1 to September 15 of any

calendar year and “regulatory control period” means

the period from May 1 to September 15 of any calendar

year.

(b) Determination of compliance. Compliance with

the standards listed in paragraph (a) of this section

shall be determined by the use of the sampling methodologies specified in § 80.8 and the testing methodology

specified in § 80.46(c) until December 31, 2015, and

§ 80.47 beginning January 1, 2016.

(a) of this section shall be determined according to the

provisions of § 80.28. Where the terms refiner, importer, distributor, reseller, carrier, ethanol blender, retailer, or wholesale purchaser-consumer are expressed in

the singular in § 80.28, these terms shall include the

plural.

(d) Special provisions for alcohol blends.

72a

(1) Any gasoline which meets the requirements of

paragraph (d)(2) of this section shall not be in violation

of this section if its Reid vapor pressure does not exceed the applicable standard in paragraph (a) of this

section by more than one pound per square inch (1.0

psi).

(2) In order to qualify for the special regulatory

treatment specified in paragraph (d)(1) of this section,

gasoline must contain denatured, anhydrous ethanol.

The concentration of the ethanol, excluding the required denaturing agent, must be at least 9% and no

more than 15% (by volume) of the gasoline. The ethanol content of the gasoline shall be determined by the

use of one of the testing methodologies specified in

§ 80.47. The maximum ethanol content shall not exceed

any applicable waiver conditions under section 211(f) of

the Clean Air Act.

(3) Each invoice, loading ticket, bill of lading, delivery ticket and other document which accompanies a

shipment of gasoline containing ethanol shall contain a

legible and conspicuous statement that the gasoline being shipped contains ethanol and the percentage concentration of ethanol.

(e) Testing exemptions. (1)(i) Any person may request a testing exemption by submitting an application

that includes all the information listed in paragraphs

(e)(3) through (6) of this section to the attention of

“Test Exemptions” to the address in § 80.10(a).

(ii) For purposes of this section, “testing exemption” means an exemption from the requirements of

§ 80.27(a) that is granted by the Administrator for the

purpose of research or emissions certification.

73a

(2)(i) In order for a testing exemption to be granted, the applicant must demonstrate the following:

(A) The proposed test program has a purpose that

constitutes an appropriate basis for exemption;

(B) The proposed test program necessitates the

granting of an exemption;

(D) The proposed test program exhibits a degree of

control consistent with the purpose of the program and

the Environmental Protection Agency’s (EPA’s) monitoring requirements.

(ii) Paragraphs (e)(3), (4), (5) and (6) of this section

describe what constitutes a sufficient demonstration for

each of the four elements in paragraphs (e)(2)(i)(A)

through (D) of this section.

(3) An appropriate purpose is limited to research or

emissions certification. The testing exemption application must include a concise statement of the purpose(s)

of the testing program.

(4) With respect to the necessity that an exemption

be granted, the applicant must demonstrate an inability

to achieve the stated purpose in a practicable manner,

during a period of the year in which the volatility regulations do not apply, or without performing or causing

to be performed one or more of the prohibited activities

under § 80.27(a). If any site of the proposed test program is located in an area that has been classified by

the Administrator as a nonattainment area for purposes of the ozone national ambient air quality standard,

the application must also demonstrate an inability to

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perform the test program in an area that is not so classified.

(5) With respect to reasonableness, a test program

must exhibit a duration of reasonable length, effect a

reasonable number of vehicles or engines, and utilize a

reasonable amount of high volatility fuel. In this regard, the testing exemption application must include:

(i) An estimate of the program’s duration;

(ii) An estimate of the maximum number of vehicles

or engines involved in the test program;

(iii) The time or mileage duration of the test program;

(iv) The range of volatility of the fuel (expressed in

Reid Vapor Pressure (RVP)) expected to be used in the

test program; and

(v) The quantity of fuel which exceeds the applicable standard that is expected to be used in the test program.

(6) With respect to control, a test program must be

capable of affording EPA a monitoring capability. At a

minimum, the testing exemption application must also

include:

(i) The technical nature of the test program;

(ii) The site(s) of the test program (including the

street address, city, county, State, and zip code);

(iii) The manner in which information on vehicles

and engines used in the test program will be recorded

and made available to the Administrator;

(iv) The manner in which results of the test program will be recorded and made available to the Administrator;

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(v) The manner in which information on the fuel

used in the test program (including RVP level(s), name,

address, telephone number, and contact person of supplier, quantity, date received from the supplier) will be

recorded and made available to the Administrator;

(vi) The manner in which the distribution pumps

will be labeled to insure proper use of the test fuel;

(vii) The name, address, telephone number and title

of the person(s) in the organization requesting a testing

exemption from whom further information on the request may be obtained; and

(viii) The name, address, telephone number and title of the person(s) in the organization requesting a

testing exemption who will be responsible for recording

and making available to the Administrator the information specified in paragraphs (e)(6)(iii), (iv), and (v) of

this section, and the location in which such information

will be maintained.

(7) A testing exemption will be granted by the Administrator upon a demonstration that the requirements of paragraphs (e)(2), (3), (4), (5) and (6) of this

section have been met. The testing exemption will be

granted in the form of a memorandum of exemption

signed by the applicant and the Administrator (or his

delegate), which shall include such terms and conditions

as the Administrator determines necessary to monitor

the exemption and to carry out the purposes of this section. Any violation of such a term or condition shall

cause the exemption to be void.

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40 C.F.R. § 80.28

§ 80.28 Liability for violations of gasoline volatility

controls and prohibitions.

(a) Violations at refineries or importer facilities.

Where a violation of the applicable standard set forth in

§ 80.27 is detected at a refinery that is not an ethanol

blending plant or at an importer’s facility, the refiner or

importer shall be deemed in violation.

(b) Violations at carrier facilities. Where a violation of the applicable standard set forth in § 80.27 is detected at a carrier’s facility, whether in a transport vehicle, in a storage facility, or elsewhere at the facility,

the following parties shall be deemed in violation:

(1) The carrier, except as provided in paragraph

(g)(1) of this section;

(2) The refiner (if he is not an ethanol blender) at

whose refinery the gasoline was produced or the importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this

section;

(3) The ethanol blender (if any) at whose ethanol

blending plant the gasoline was produced, except as

provided in paragraph (g)(6) of this section; and

(4) The distributor and/or reseller, except as provided in paragraph (g)(3) of this section.

(c) Violations at branded distributor facilities, reseller facilities, or ethanol blending plants. Where a violation of the applicable standard set forth in § 80.27 is

detected at a distributor facility, a reseller facility, or

an ethanol blending plant which is operating under the

corporate, trade, or brand name of a gasoline refiner or

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any of its marketing subsidiaries, the following parties

shall be deemed in violation:

(1) The distributor or reseller, except as provided

in paragraph (g)(3) or (g)(8) of this section;

(2) The carrier (if any), if the carrier caused the

gasoline to violate the applicable standard;

(3) The refiner under whose corporate, trade, or

brand name (or that of any of its marketing subsidiaries) the distributor, reseller, or ethanol blender is operating, except as provided in paragraph (g)(4) of this

section; and

(4) The ethanol blender (if any) at whose ethanol

blending plant the gasoline was produced, except as

provided in paragraph (g)(6) or (g)(8) of this section.

(d) Violations at unbranded distributor facilities or

ethanol blending plants. Where a violation of the applicable standard set forth in § 80.27 is detected at a distributor facility or an ethanol blending plant not operating under a refiner’s corporate, trade, or brand name,

or that of any of its marketing subsidiaries, the following parties shall be deemed in violation:

(1) The distributor, except as provided in paragraph (g)(3) or (g)(8) of this section;

(2) The carrier (if any), if the carrier caused the

gasoline to violate the applicable standard;

(3) The refiner (if he is not an ethanol blender) at

whose refinery the gasoline was produced or the importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this

section; and

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(4) The ethanol blender (if any) at whose ethanol

blending plant the gasoline was produced, except as

provided in paragraph (g)(6) or (g)(8) of this section.

(e) Violations at branded retail outlets or wholesale

purchaser-consumer facilities. Where a violation of the

applicable standard set forth in § 80.27 is detected at a

retail outlet or at a wholesale purchaser-consumer facility displaying the corporate, trade, or brand name of a

gasoline refiner or any of its marketing subsidiaries,

the following parties shall be deemed in violation:

(1) The retailer or wholesale purchaser-consumer,

except as provided in paragraph (g)(5) or (g)(8) of this

section;

(2) The distributor and/or reseller (if any), except

as provided in paragraph (g)(3) or (g)(8) of this section;

(3) The carrier (if any), if the carrier caused the

gasoline to violate the applicable standard;

(4) The refiner whose corporate, trade, or brand

name (or that of any of its marketing subsidiaries) is

displayed at the retail outlet or wholesale purchaserconsumer facility, except as provided in paragraph

(g)(4) of this section; and

(5) The ethanol blender (if any) at whose ethanol

blending plant the gasoline was produced, except as

provided in paragraph (g)(6) or (g)(8) of this section.

(f) Violations at unbranded retail outlets or wholesale purchaser-consumer facilities. Where a violation of

the applicable standard set forth in § 80.27 is detected

at a retail outlet or at a wholesale purchaser-consumer

facility not displaying the corporate, trade, or brand

name of a refiner or any of its marketing subsidiaries,

the following parties shall be deemed in violation:

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(1) The retailer or wholesale purchaser-consumer,

except as provided in paragraph (g)(5) or (g)(8) of this

section;

(2) The distributor (if any), except as provided in

paragraph (g)(3) or (g)(8) of this section;

(3) The carrier (if any), if the carrier caused the

gasoline to violate the applicable standard;

(4) The ethanol blender (if any) at whose ethanol

blending plant the gasoline was produced, except as

provided in paragraph (g)(6) of this section; and

(5) The refiner (if he is not an ethanol blender) at

whose refinery the gasoline was produced and/or the

importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this

section.

(g) Defenses.(1) In any case in which a carrier would be

in violation under paragraph (b)(1) of this section, the

carrier shall not be deemed in violation if he can

demonstrate:

(i) That the violation was not caused by him or his

employee or agent; and

(ii) Evidence of an oversight program conducted by

the carrier, such as periodic sampling and testing of incoming gasoline, for monitoring the volatility of gasoline stored or transported by that carrier.

(iii) An oversight program under paragraph

(g)(1)(ii) of this section need not include periodic sampling and testing of gasoline in a tank truck operated by

a common carrier, but in lieu of such tank truck sampling and testing, the common carrier shall demonstrate evidence of an oversight program for monitoring

compliance with the volatility requirements of § 80.27

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relating to the transport or storage of gasoline by tank

truck, such as appropriate guidance to drivers on compliance with applicable requirements and the periodic

review of records normally received in the ordinary

course of business concerning gasoline quality and delivery.

(2) In any case in which a refiner or importer would

be in violation under paragraphs (b)(2), (d)(3), or (f)(5)

of this section, the refiner or importer shall not be

deemed in violation if he can demonstrate:

(i) That the violation was not caused by him or his

employee or agent; and

(ii) Test results using the sampling methodology

set forth in § 80.8 and the testing methodology set forth

in § 80.46(c), or any other test method where adequate

correlation to § 80.46(c) is demonstrated, which show

evidence that the gasoline determined to be in violation

was in compliance with the applicable standard when it

was delivered to the next party in the distribution system.

(3) In any case in which a distributor or reseller

would be in violation under paragraph (b)(4), (c)(1),

(d)(1), (e)(2), or (f)(2) of this section, the distributor or

reseller shall not be deemed in violation if he can

demonstrate:

(i) That the violation was not caused by him or his

employee or agent; and

(ii) Evidence of an oversight program conducted by

the distributor or reseller, such as periodic sampling

and testing of gasoline, for monitoring the volatility of

gasoline that the distributor or reseller sells, supplies,

offers for sale or supply, or transports.

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(4) In any case in which a refiner would be in violation under paragraphs (c)(3) or (e)(4) of this section, the

refiner shall not be deemed in violation if he can

demonstrate all of the following:

(i) Test results using the sampling methodology set

forth in § 80.8 and the testing methodology set forth in

§ 80.46(c), or any other test method where adequate

correlation to § 80.46(c) is demonstrated, which show

evidence that the gasoline determined to be in violation

was in compliance with the applicable standard when

transported from the refinery.

(ii) That the violation was not caused by him or his

employee or agent; and

(iii) That the violation:

(A) Was caused by an act in violation of law (other

than the Act or this part), or an act of sabotage or vandalism, whether or not such acts are violations of law in

the jurisdiction where the violation of the requirements

of this part occurred, or

(B) Was caused by the action of a reseller, an ethanol blender, or a retailer supplied by such reseller or

ethanol blender, in violation of a contractual undertaking imposed by the refiner on such reseller or ethanol

blender designed to prevent such action, and despite

reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or

supplied directly by the refiner (and not by a reseller),

in violation of a contractual undertaking imposed by the

refiner on such retailer designed to prevent such action,

and despite reasonable efforts by the refiner (such as

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periodic sampling and testing) to insure compliance

with such contractual obligation, or

(D) Was caused by the action of a distributor or an

ethanol blender subject to a contract with the refiner

for transportation of gasoline from a terminal to a distributor, ethanol blender, retailer or wholesale purchaser-consumer, in violation of a contractual undertaking imposed by the refiner on such distributor or ethanol blender designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic

sampling and testing) to insure compliance with such

contractual obligation, or

(E) Was caused by a carrier or other distributor not

subject to a contract with the refiner but engaged by

him for transportation of gasoline from a terminal to a

distributor, ethanol blender, retailer or wholesale purchaser-consumer, despite reasonable efforts by the refiner (such as specification or inspection of equipment)

to prevent such action, or

(F) Occurred at a wholesale purchaser-consumer

facility: Provided, however, That if such wholesale

purchaser-consumer was supplied by a reseller or ethanol blender, the refiner must demonstrate that the violation could not have been prevented by such reseller’s

or ethanol blender’s compliance with a contractual undertaking imposed by the refiner on such reseller or

ethanol blender as provided in paragraph (g)(4)(iii)(B)

of this section.

(iv) In paragraphs (g)(4)(iii)(A) through (E) of this

section, the term “was caused” means that the refiner

must demonstrate by reasonably specific showings, by

direct or circumstantial evidence, that the violation was

caused or must have been caused by another.

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(5) In any case in which a retailer or wholesale purchaser-consumer would be in violation under paragraphs (e)(1) or (f)(1) of this section, the retailer or

wholesale purchaser-consumer shall not be deemed in

violation if he can demonstrate that the violation was

not caused by him or his employee or agent.

(6) In any case in which an ethanol blender would

be in violation under paragraphs (b)(3), (c)(4), (d)(4),

(e)(5) or (f)(4) of this section, the ethanol blender shall

not be deemed in violation if he can demonstrate:

(i) That the violation was not caused by him or his

employee or agent; and

(ii) Evidence of an oversight program conducted by

the ethanol blender, such as periodic sampling and testing of gasoline, for monitoring the volatility of gasoline

that the ethanol blender sells, supplies, offers for sale

or supply or transports; and

(iii) That the gasoline determined to be in violation

contained no more than 15% ethanol (by volume) when

it was delivered to the next party in the distribution

system.

(7) In paragraphs (g)(1)(i), (g)(2)(i), (g)(3)(i),

(g)(4)(ii), (g)(5), and (g)(6)(i) of this section, the respective party must demonstrate by reasonably specific

showings, by direct or circumstantial evidence, that it

or its employee or agent did not cause the violation.

(8) In addition to the defenses provided in paragraphs (g)(1) through (6) of this section, in any case in

which an ethanol blender, distributor, reseller, carrier,

retailer, or wholesale purchaser-consumer would be in

violation under paragraph (b), (c), (d), (e), or (f) of this

section, as a result of gasoline which contains between 9

and 15 percent ethanol (by volume) but exceeds the ap-

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plicable standard by more than one pound per square

inch (1.0 psi), the ethanol blender, distributor, reseller,

carrier, retailer or wholesale purchaser-consumer shall

not be deemed in violation if such person can demonstrate, by showing receipt of a certification from the

facility from which the gasoline was received or other

evidence acceptable to the Administrator, that:

(i) The gasoline portion of the blend complies with

the Reid vapor pressure limitations of § 80.27(a); and

(ii) The ethanol portion of the blend does not exceed 15 percent (by volume); and

(iii) No additional alcohol or other additive has been

added to increase the Reid vapor pressure of the ethanol portion of the blend.

In the case of a violation alleged against an ethanol

blender, distributor, reseller, or carrier, if the demonstration required by paragraphs (g)(8)(i), (ii), and (iii) of

this section is made by a certification, it must be supported by evidence that the criteria in paragraphs

(g)(8)(i), (ii), and (iii) of this section have been met, such

as an oversight program conducted by or on behalf of

the ethanol blender, distributor, reseller or carrier alleged to be in violation, which includes periodic sampling and testing of the gasoline or monitoring the volatility and ethanol content of the gasoline. Such certification shall be deemed sufficient evidence of compliance

provided it is not contradicted by specific evidence,

such as testing results, and provided that the party has

no other reasonable basis to believe that the facts stated in the certification are inaccurate. In the case of a

violation alleged against a retail outlet or wholesale

purchaser-consumer facility, such certification shall be

deemed an adequate defense for the retailer or wholesale purchaser-consumer, provided that the retailer or

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wholesale purchaser-consumer is able to show certificates for all of the gasoline contained in the storage

tank found in violation, and, provided that the retailer

or wholesale purchaser-consumer has no reasonable basis to believe that the facts stated in the certifications

are inaccurate.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.