The Regulation of Fuels and Fuel Additives

AuthorArnold W. Reitze, Jr.
Page 377
Chapter 12:
The Regulation of Fuels and Fuel Additives
§1. Overview of Mobile Source Fuel
Regulation Under the Clean Air
As part of the response to the Clean Air Act’s
(CAA) mandate to reduce emissions from motor
vehicles, automotive fuels are regulated, primarily
by §211. Fuel modications may be able to reduce
emissions at lower cost than motor vehicle emission
controls. ey may be implemented without wait-
ing for the vehicle eet to turn over and can target
a geographical region or a season with high levels of
air pollution. Fuel regulations are relatively easy to
enforce because petroleum rening and fuel distri-
bution are controlled by a relatively small number
of corporations. Moreover, fuel modications may
shift some of the costs of pollution reduction from
the automotive industry to the petroleum industry,
which is an incentive for the automotive industr y
to press for fuel improvements.1
Fuel improvement approaches include: restrict-
ing additives (e.g., lead), limiting impurities (e.g.,
sulfur in diesel fuel), decreasing volatility, reducing
aromatics, increasing oxygen content (e.g., adding
alcohol), and adding detergents. Another approach
is to encourage the use of alternative fuels such as
compressed natural gas, liqueed natural g as, liq-
ueed petroleum gas (OPG), methanol, et hanol,
vegetable oils, hydrogen, liquid fuels derived from
coal, and blends of gasoline and alcohol known as
gasohol.2 Each of t hese alternatives ha s advantages
1. See, e.g., Motor Vehicles Mfrs. Ass’n v. New York State Dep’t
of Envtl. Conservation, 17 F.3d 521, 24 ELR 20552 (2d Cir.
1994), in which the automotive industry argued that if states
other than California were to impose California standards, they
also were required to adopt California fuel standards.
2. See H W  ., A F: A C S
R, N C  S L 9
(1996); O  T A, C 
and disadvantages. Moreover, changes in the com-
position of motor vehicle fuels may lower emissions
of some pollutants but increase emissions of other
pollutants. For example, decreasing a gasoline’s
aromatics content reduces carbon monoxide (CO)
and hydrocarbon (HC) emissions but increases
nitrogen oxide (NOx) emissions. Furthermore,
dierent types of engines may dier in their emis-
sions released in combusting a particular fuel. For
example, increasing cetane numbers in diesel fuel
lowers NOx emissions from direct injection engines
but not from light-duty indirect injection engines.3
§1(a). Pre-1990
e CAA Amendments of 1963 authorized the
Department of Health, Education, and Welfare
(HEW) to evaluate fuels and recommend research
programs to reduce air pollution from motor
vehicle exhaust.4 In the 1967 CAA Amendments,
Congress gave HEW authority to prevent the mar-
keting of fuels and fuel additives when certain
conditions imposed by HEW as part of the regis-
tration process were not met.5 Violation of registra-
tion requirements could result in civil penalties of
$1,000 per day.
e 1970 CAA Amendments included provi-
sions imposing fuel and fuel additive testing.6
Civil penalties increased to $10,000 per day. In
the Reorganization Plan No. 3 of 1970, the presi-
 U S, R G: A F
 L-D V 5 (1990) (OTA-E-364).
3. See A F  ., A P F M V:
S  T  C E,
T W B 175 (1996).
4. Pub. L. No. 88-206, 77 Stat. 392 (1963).
5. Air Quality Act of 1967, Pub. L. No. 90-148, §210(a), 81 Stat.
485, 502-03 (1967).
6. Clean Air Act Amendments of 1970, Pub. L. No. 91-604,
§211(b)(2), 84 Stat. 1676, 1698-99 (1970).
Page 378 Air Pollution Control and Climate Change Mitigation Law
dent created the U.S. Environmental Protection
Agency (EPA) and gave it the authority to control
air pollution previously exercised by HEW.7 EPA
could control or prohibit fuels or fuel additives
under CAA §211(c) if public health or welfare was
endangered or if an automotive emission control
system was impaired.8 Section 211(c)(4)(A) pro-
vides for federal preemption of standards for fuel
or fuel additives when the Administrator of EPA
either prescribes standards or nds that no control
is necessary; until then states may regulate. is
preemption provision, for example, prevented local
governments from regulating the lead content of
e CAA Amendments of 1977 expanded EPA’s
authority to regulate fuels.10 e language of §211(c)
(1)(A) was altered to broaden the risk component
from “which endangers” to “which may reason-
ably be anticipated to endanger the public hea lth
or welfare.” EPA was directed to promulgate testing
regulations and to test existing and new fuels and
fuel additives. Section 211(f) banned fuels or fuel
additives that were not “substantially similar” to
the fuels used for motor vehicle certication unless
a waiver was granted. Section 211(f)(2) places spe-
cic limitations on the fuel additive methylcyclo-
pentadienyl manganese tricarbonyl (MMT).
§1(b). The 1990 Clean Air Act Amendments
Prior to 1990, EPA regulated fuels and fuel addi-
tives to protect the public from exposure to toxic
substances and to prevent damage to automo-
tive emission controls. e CAA Amendments of
November 15, 1990, added provisions to require
fuel combustion to result in fewer emissions.11 Sec-
tion 211(a) expanded EPA’s authority concerning
fuels and fuel additives to include those used in
nonroad vehicles; §211(b)(2)(B) expanded testing
authority to include these newly regulated fuels;
and §211(c)(1) gave EPA regulatory authority over
fuels and fuel additives used in nonroad vehicles.
Section 211(c)(4)(A) was changed to focus on char-
acteristics or components of a fuel rather than the
fuel or fuel additive.12 is allows states to regulate
7. 35 Fed. Reg. 15623 (July 9, 1970), reprinted in 84 Stat. 2086
8. 42 U.S.C. §7545(c), CAA §211(c).
9. Exxon Corp. v. City of New York, 548 F.2d 1088, 1093, 7 ELR
20130 (2d Cir. 1977).
10. Pub. L. No. 95-95 §222, 91 Stat. 685, 762-63.
11. Pub. L. No. 101-549, 104 Stat. 2399 (1990) (codied at 42
U.S.C. §7545, CAA §211).
12. 42 U.S.C. §7545, CAA §211.
a fuel characteristic even if the federal government
is regulating a dierent characteristic. is section
overruled the Reid Vapor Pressure (RVP) decision
in Exxon Corp. v. New York,13 which supported fed-
eral preemption of f uel regulation. New language
in §211(c)(4)(C) enhanced state power by allowing
state regulation of fuels through state implementa-
tion plans (SIPs) if fuel regulation is necessary to
achieve an air quality standard; this limits the fed-
eral preemption provision in §211(c)(4)(A). EPA’s
testing requirements for registration are found in
40 C.F.R. Part 79, Subpart F. Most of the signi-
cant provisions are in the General Requirements &
Provisions at 40 C.F.R. §79.51.
Section 211(d) made civil penalties more strin-
gent by increasing the penalties to $25,000 per day,
but penalties are adjusted for ination,14 and each
day’s violation are a separate oense. Injunctive
relief also is available by using §211(d)(2). e pen-
alties formerly applied to violations of §211(a) and
(f) now apply to violations of subsections (g), (k),
(l), (m), and (n). In addition to a civil penalty, the
economic benet or savings to the violator may be
recovered, and an administrative penalty provision
is provided by §205(c).
Section 211(g) of the pre-1990 CAA dealing
with the use of lead additives by small reneries
was repealed. Section 211(n) prohibits the use of
leaded gasoline for motor vehicle fuel, and a new
§211(j) encourages use of nonlead additives to pre-
vent engine valve seat wear. Section 211(i) limits the
sulfur content of diesel fuel to 0.05% by weight;
the sulfur content of diesel fuel introduced into a
vehicle is controlled by §211(g)(2). Section 211(l)
requires EPA to promulgate regulations to mandate
the use of detergents to prevent engine or fuel sys-
tem deposits. Section 211(o) subjects importers to
the same requirements as a manufacturer.
Sections 211(h), 211(k), and 211(m) each pro-
vide mechanisms to reduce air pollution generated
by automobiles. Section 211(h) controls fuel vola-
tility by limiting the allowable RVP level in fuels
used during the high ozone season. Section 211(k)
established a program requiring the use of refor-
mulated gasoline to substantially reduce emissions
from gasoline-fueled vehicles used in ozone nonat-
tainment areas. Section 211(m) mandates the use
of oxygenated fuels in some CO nonattainment
13. 548 F.2d 1088, 7 ELR 20130 (2d Cir. 1977).
14. 40 C.F.R. §19.4, tbl. 1. As of January 12, 2009, the basic penalty
increased to $37,500 per violation per day.
The Regulation of Fuels and Fuel Additives Page 379
§1(c). Californias Fuel Regulation Program
e federal government preempted the control of
emissions from new motor vehicles and new motor
vehicle engines in CAA §209(a). Fuel characteris-
tics or components may be preempted pursuant to
§211(c)(4). However, CAA §209(b) allows Califor-
nia to regulate if its standards and enforcement pro-
cedures, which include controls on fuels and fuel
additives, are at least as protective of public health
and welfare as applicable federal standards are15
and if a waiver is obtained from EPA.16 is Cali-
fornia exception also applies to the control of fuels
or fuel additives. Another preemption exception is
§177’s provision that allows California standards,
for which EPA has given a waiver, to be adopted by
any state with nonattainment areas.17
Another way for states to regulated fuels is pro-
vided by CAA §211(c)(4)(C), which allows a state
to adopt requirements for fuels in its SIP that are
more stringent than the federal controls imposed
on conventional gasoline, if EPA nds it is neces-
sary in order to achieve a national ambient air qual-
ity standard (NAAQS). ere are seven of these
fuels, known as “boutique” fuels that are approved
by EPA. ey are designed to reduce emissions
that can lead to high levels of ozone or particu-
late matter (PM). Four of the fuels must have lower
RVP than is allowed in conventional gasoline. e
Energy Policy Act of 2005 amended the CAA to
place additional restrictions on the use of boutique
fuels.18 e restrictions prohibit an increase in the
number of fuels above the number that existed as
of September 1, 2004. EPA’s approval of a state fuel
cannot cause supply or distribution problems or
have a signicant adverse impact on the produc-
tion of gasoline in the aected or contiguous area.
Moreover, EPA may not approve a state fuel unless
it already is approved in at least one SIP in the
applicable Petroleum Administration for Defense
District (PADD). As required by the 2005 Energy
Act, EPA published a draft list of the seven dier-
ent types of boutique fuels.19
15. 42 U.S.C. §7543, CAA §209. Motor Vehicle Mfrs. Ass’n v. New
York State Dep’t of Envtl. Conservation, 17 F.3d 521, 527, 24
ELR 20552 (2d Cir. 1994).
16. See, e.g., Davis v. EPA, 336 F.3d 965, 33 ELR 20241 (9th Cir.
17. 42 U.S.C. §7507, CAA §177.
18. Pub. L. No. 109-58, §1541(b) (Aug. 8, 2005) (codied at id.
§7545(c)(4)(C)(v), CAA §211(c)(4)(C)(v)).
19. Draft Boutique Fuels List Under §1541(b) of the Energy Policy
Act and Request for Public Comment, 71 Fed. Reg., 32532
(June 6, 2006).
California’s Air Resources Board (CAR B) is
the state agency authorized to adopt standards to
reduce emissions from vehicular and other mobile
sources. CARB has 11 members appointed by the
governor. Five are experts in elds relevant to air
pollution control. Five are elected ocials—four
representing the Los Angeles region, San Francisco
Bay Area, San Diego, and the San Joaquin Valley
and one representing the other districts. e 11th
member is the chairperson. C ARB fuel activities
fall into two categories. ey are (1) adoption and
enforcement of fuel specications and (2) control-
ling emissions from the marketing and distribution
of fuels in California.20
§2. Fuel and Fuel Additives
§2(a). Petroleum
Nearly all petroleum, by weight, is 83 to 87% car-
bon and 10 to 14% hydrogen and contains small
amounts of sulfur, nitrogen, oxygen, and various
metals. Crude oil weighs from 6.5 to 8.3 pounds
per gallon, and its composition may vary from a
thick, black, melted tar-like substance to a thin,
colorless, water-like substance.21 e sulfur content,
the boiling-range of factions, and other character-
istics of crude oil also vary.22 ese variables aect
the amount of gasoline that can be produced from
a quantity of crude petroleum. e task of an oil
renery is to process crude oil into fuels that have
the mix of hydrocarbons necessary to do the job.
e usefulness of fuels is expressed by Research
and Motor Octane values. Octane numbers are a
measure of the fuel’s resistance to premature com-
bustion known as an tiknock tendencies. e octane
number is determined by comparing the gasoline
to iso-octane, which burns with little knock, and
is assigned an octane number of 100 and to hep-
tane, which causes engines to knock, and is given
a octane rating of 0. e research octane number
(RON) is determined at an engine speed of 600
revolutions per minute (rpm); the motor octane
number (MON) is determined at 900 rpm. Octane
values posted on service station pumps are usually
20. CARB has adopted standards for alternative fuels at 13 C.
C R. §§2300-2317, diesel fuel. Id. §§2280-2285, and
reformulated gasoline. Id. §§2260-2276.
21. A P I, F A O 22 (1977).
22. J G. S, T C  T 
P 35, 49 (1980).

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