WASHINGTON -- Gasoline containing more than 10 percent ethanol may only be sold for use in flexible-fueled vehicles (FFVs), according to a letter clarifying the legality of selling ethanol-gasoline blends to motorists at retail outlets issued by the U.S. Environmental Protection Agency (EPA). The letter was issued in response to an inquiry from the South Dakota Petroleum and Propane Marketers Association and the South Dakota Association of Convenience Stores.
 
The complete text of that letter, from Margo Tsirigotis Oge, director of the U.S. Office of Transportation and Air Quality, follows:

It is legal to sell gasoline containing up to 10 percent ethanol (E-10) for use in any gasoline-fueled vehicle in the United States. Gasoline containing more than 10 percent ethanol may only be sold for use in flexible-fueled vehicles (FFVs) that are certified to meet emission standards on E-85 (85 percent ethanol and 15 percent gasoline), gasoline without ethanol (E0), and any intermediate combination of gasoline and ethanol. Most vehicles are certified to emission standards for gasoline only, and thus are limited to no more than E-10.

You asked for our position on marketers selling ethanol blends other than E-10 and E-85 through blender pumps for use in FFVs. You also asked if there are any prohibitions under the Clean Air Act. I am not aware of any federal law that prohibits sale of such blends for use in FFVs.

However, the use of such blends in gasoline-only vehicles is prohibited under the Clean Air Act. Use of gasoline containing ethanol amounts greater than E10 in a gasoline-only vehicle could cause emissions from the vehicle to increase. Section 203(a)(3)(A) of the Clean Air Act (the Act), 42 U.S.C. 7522(a)(3)(A) prohibits any person from rendering inoperative emission control devices or elements of design. In addition, Section 203(a) prohibits any person from causing a violation of Section 203(a)(3)(A). Mis-fueling a motor vehicle in this manner may violate this provision of the Act. The retailer who has variable ethanol percentage pumps may be liable for causing such violation, whether the mis-fueling occurs at self-serve or full-serve pumps.

Our understanding is that current industry practice is to dispense E85 from pumps that are separate from normal gasoline pumps and clearly marked as being appropriate for use only by ethanol FFVs. Variable ethanol percentage pumps that are installed in this manner, stand-alone and clearly marked as being available only for ethanol FFVs, may reduce the risk of such a violation.