EPA’s Fine PM Rule:  A Pitch Ethanol Should Hit Out of the Park

September 5, 2022 |

By Doug Durante, Executive Director, Clean Fuels Development Coalition, special to The Digest

August is usually a pretty sleepy month in Washington and business in general. In baseball parlance, the “dog days of August” is a term to convey the slow grind of a long season.  But not this year. Between the drama of politics and the final passage of some key legislation, there has been a lot to digest in the past month.

The introduction of a Senate version of the Next Generation Fuels Act, the passage of the Inflation Reduction Act containing several ag and biofuel provisions, and a new round of cash available for the Higher Blend Infrastructure program made this August far some sleepy. Add to that the final rule in California banning internal combustion engines and it was action packed.

But out of the limelight and toiling away in the shadows,  EPA was finalizing their proposed rule to reduce fine particulates. To their credit, they had announced early on that they intended to complete their NPRM (Notice of Proposed Rulemaking) by August and it is at the Office of Management and Budget for Review as we speak.

This rule should be the single biggest stimulant for ethanol since the passage of the RFS, yet very few in the ethanol industry are even aware of this opportunity.

So why is this a pitch over the plate for ethanol? For starters, EPA has told Congress that 90% of fine PM comes from mobile sources.  They have also told Congress the majority of the health benefits from the Clean Air Act will come from reducing particulates.  General Motors, among others, concedes that 96% of fine PM emitted by cars and light trucks comes from gasoline aromatics.  And why are aromatics in gasoline? To provide octane. And what is ethanol’s greatest attribute? That it is the highest octane additive commercially available, and the cleanest to boot.

So in many respects this should be a simple argument….but so was our argument in the GHG/Fuel Economy rule whose stated objective was to reduce pollution and increase mileage; we offered them a product that reduced pollution and increased mileage—and we were ignored.

This situation has a bit of an advantage however in that try as they may, EPA is not going to find many other avenues to reduce fine particulates. There are only so many dry cleaners, donut shops, and others that can be further regulated, and the gains would be minimal.  Therefore, mobile sources simply must be addressed and in so doing EPA can right a lot of previous wrongs. And keeping with my baseball metaphor, it would be like driving in runners that have been stranded on base.

Connection with the Recent Supreme Court Decision

While there was great angst from the far left, the far right, and everything in between when the Supreme Court overturned EPA rules limiting powerplant emissions,  I  submit the following thesis: the Supreme Court Decision Limiting EPA Regulation Opens the Door for EPA Regulation.

Wait, what?

OK, stay with me on this one.  The Supreme court’s decision was based on their assessment that without explicit, specific directives from Congress the agency could not undertake such action. Chief Justice Roberts, writing for the Majority, said it was not “plausible” that Congress gave EPA such sweeping powers. He made further complaints about “vague” legislative language.  It is falling under a new buzz term called the “major questions doctrine”.  To us laymen that means an action that has far reaching impacts on areas such as the economy, commerce, and future policy.  And arguably the power plant decision does, but this conservative court argues that the questions raised are of such magnitude that Congress—not unelected bureaucrats—needed to make those decisions.

So what does that have to with ethanol, fine particulate reduction, and how could limiting regulations lead to more regulations?  The court is effectively saying EPA’s job is restricted to enacting Congressional programs and specific, explicit directives are needed. Well, whaddya know, we just happen to have one that meets those criteria.  Section 202 (l) of the 1990 Clean Air Act Amendments (CAAA) explicitly, specifically, directs EPA to reduce toxic emissions from gasoline, requiring it to develop a regulatory program to attain:  “The greatest degree of emission reductions achievable through the application of technology that will be available”. 

High octane non toxic ethanol in modern engines is such a technology. But in a twist of technology turning on us, gasoline direct injection (GDI) engines have the unintended consequence of increasing the volume of ultrafine particles coming out of the tailpipe, making the switch to “clean octane” imperative.

Based on the majority opinion of the court, there must be “clear congressional authorization” to support any significant and important rule.  Well, as noted,  there is a mountain of clear and unambiguous discussion supporting Congressional intent to institute a clean fuels plan that has been ignored for decades. The floor debate, the conference report, and the final legislation could not be clearer. It was passed by a huge bipartisan margin and Congress has and continues to expect EPA to replace benzene laden “dirty octane” with ethanol’s “clean octane”, as evidenced by the 1990 CAAA, 2005 EPACT, and RFS1/RFS2. And they did address major questions as they identified the impacts on energy security, costs, agriculture, the economy, and human health—all determined to be positive.

Using existing law and agreed upon science

Now, with the linkage to fine particulates abundantly clear, the agency has all the authority it needs to meet the original objectives of Title II of the CAAA, finalize a fine PM rule, and meet the objectives of the Next Generation Fuels Act which is gaining momentum in Congress, in part due to its inclusion of aromatic controls.

National columnist Eugene Robinson seized on this in the Washington Post last month when he was writing about a similar situation on another issue and said, somewhat tongue in cheek that “Using existing law and agreed upon science is a clever strategy. The conservative majority on the Supreme Court might be skeptical, if not scornful, of the idea that such sweeping change could be mandated by executive branch rulemaking…But it’s all there in black and whitetextualists will have to tie themselves in knots to explain why the law’s words don’t mean what they clearly say”.

We couldn’t agree more. The court cannot have it both ways…..they ask for documentation and we have it. EPA Administrator Michael Regan should see this as a tremendous opportunity to meet the objectives of the Environmental Justice initiative, solidify and further the RFS, provide more tools in the form of higher octane for the next round of GHG/Fuel Economy rules, reduce gasoline prices, and generally protect the public from harmful pollution.

What does this mean for ethanol?  As it is, ethanol at the 10% blend level is displacing more than 8 billion gallons of aromatics…… ……imagine what 20, 25, and 30% blends would do.  And through the lens of climate change and carbon reduction, aromatics are the most carbon intensive component in gasoline, using ethanol translates to upstream carbon reductions at the refinery and can further improve ethanol’s CI and economics.

In baseball, September and October define the ultimate winners.  The ethanol industry needs to use this time and embrace this message that all of these benefits are achievable by aggressively reducing toxic aromatics in the fine PM Rule and working with Congress to pass other elements of the Next Generation Fuels Act. Failure to do so will cause grievous harm to the public health and environment for the next generation or more, especially children.

So the pitch is there—right over the plate.  Swing. Home Run.

The Clean Fuels Development Coalition is a broad based advocacy and educational organization working with ethanol, agriculture, auto, and other stakeholders on a range of energy and environmental issues.

For further information visit www.cleanfuelsdc.org.

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