The Biobased and Renewable Products Advocacy Group (BRAG) helps members develop and bring to market their innovative biobased and renewable chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

By Lynn L. Bergeson

On October 9, 2018, during a rally in Council Bluffs, Iowa, U.S. President Donald Trump announced that he will order the U.S. Environmental Protection Agency (EPA) to expand its sales of corn ethanol. This action, which farmers across the U.S. have been waiting for, will allow for year-round sales of 15 percent biofuels (E15) ethanol blends. Currently, E15 sales are restricted during the summer months in certain states, limiting the expansion of the market space for biofuels. Well received by many in the industry, the announcement was particularly appreciated by the Biotechnology Innovation Organization (BIO), a Biobased and Renewable Products Advocacy Group (BRAG®) member, which applauded President Trump’s decision in a press release. Brent Erikson, BIO’s Executive Vice President, emphasized in his statement that “[a]llowing E15 to be sold year-round will help unleash the potential of cellulosic biofuels by creating more demand and marked headroom for the next generation of biofuels.”


 

By Lynn L. Bergeson

On September 27, 2018, the U.S. Environmental Protection Agency (EPA) announced the user fees final rule for the administration of the Toxic Substances Control Act (TSCA), the fourth and remaining framework rule to be issued in final under the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg).

This final rule, that amends 40 C.F.R. Parts 700, 720, 723, 725, 790, and 791, “describes the final TSCA fees and fee categories for fiscal years 2019, 2020, and 2021”; “explains the methodology by which the final TSCA fees were determined”; “identifies some factors and considerations for determining fees for subsequent fiscal years”; and “includes amendments to existing fee regulations governing the review of premanufacture notices, exemption applications and notices, and significant new use notices.”  The final rule has not been published yet in the Federal Register so an effective date is not yet available; a pre-publication version is available here.

Specifically, EPA is establishing fees applicable to any person required to submit information to EPA under TSCA Section 4; or a notice, including an exemption or other information, to be reviewed by EPA under TSCA Section 5; or who manufactures (including imports) a chemical substance that is the subject of a risk evaluation under TSCA Section 6(b).  EPA is also establishing standards for determining which persons qualify as "small business concerns" and thus would be subject to lower fee payments.  

In the press release announcing the rule, EPA Acting Administrator Andrew Wheeler states that this rule will “provide resources needed to support the valuable work EPA does to review chemicals for safety, manage risk as required, and make chemical information available as appropriate.”  During fiscal years 2019-2021, EPA states it will “work to track costs and will use that information to adjust future fees, if appropriate.”

EPA also announced that it will be hosting a series of webinars focusing on making TSCA submissions and paying fees under the final rule.  The first webinar was held on October 10, 2018. Two other webinars are scheduled for October 24, 2018, from 1:00 p.m. - 2:30 p.m. (EDT); and November 7, 2018, from 1:00 p.m. - 2:30 p.m. (EST).

More information on TSCA implementation is available on our website under key phrase Lautenberg Implementation.  More information on the TSCA user fees final rule is available in Bergeson & Campbell, P.C.’s (B&C®) detailed memorandum, “EPA Issues Final TSCA Fees Rule.”

Tags: TSCA

 

By Lynn L. Bergeson

The U.S. Environmental Protection Agency (EPA) has included a new data portal on its website to promote greater transparency on small refineries exemptions to the Renewable Fuel Standard (RFS). Criticized in the past for its lack of transparency, EPA’s new RFS data portal also provides previously undisclosed information on Renewable Identification Number (RIN) transactions, renewable fuel volume production, average RIN prices, and RIN transaction volumes. The data available dates back to July 1, 2010, which is when EPA started collecting the information provided. EPA intends to update the data portal on a monthly basis.

Tags: EPA, Biofuel, RFS, RIN

 

By Lynn L. Bergeson

On August 23, 2018, U.S. Senators Patty Murray (D-WA), Roy Blunt (R-MO), and 37 others submitted a bipartisan letter, asking the U.S. Environmental Protection Agency (EPA) to increase the renewable volume obligations under the Renewable Fuel Standard (RFS) as proposed by EPA in June 2018. Under the aforementioned proposed RFS, EPA would raise the advanced biofuel volume for 2019 to 4.88 billion gallons and the biomass-based diesel volume for 2020 to 2.43 billion gallons. The bipartisan group argues that although these increases may be promising, the potential of biodiesel is still taken too lightly. Not only does the biodiesel industry have prodigious growth potential, its expansion would significantly generate jobs in the U.S. In particular, the Senators emphasized the need to also recognize small refiners’ economic hardship exemptions during the 2019 compliance year.

Tags: Senate, RFS, EPA

 

By Lynn L. Bergeson

Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to set renewable fuel percentage standards annually. On July 10, 2018, EPA announced a request for comments on a proposed rule to address “volume requirements for cellulosic biofuel, advanced biofuel, and total renewable fuel that are below the statutory volume targets.” The proposal also included the applicable volume of diesel from biomass for 2020. In response to EPA’s request, the Biotechnology Innovation Organization (BIO), a Biobased and Renewable Products Advocacy Group (BRAG®) member, submitted comments to EPA on August 17, 2018. BIO emphasized in its comments the vitality of the Renewable Fuel Standard (RFS). Arguing that the proposed rule promulgates a risk to the biofuels industry and rural economy, BIO urged EPA to resolve the issues that may be caused by raising the volumes of advanced and cellulosic biofuel. Among these issues, the undercut to these increases in volume by the issuance of small refinery exemptions would stop the reallocation of gallons to other obligated parties.

Tags: BIO, EPA, CAA, RFS, Biofuel

 

By Lynn L. Bergeson

On August 1, 2018, the U.S. Senate Committee on Environment and Public Works (EPW Committee) held a hearing entitled “Examining EPA’s Agenda:  Protecting the Environment and Allowing America’s Economy to Grow.”  Testifying at the hearing was Andrew Wheeler, the U.S. Environmental Protection Agency’s (EPA) Acting Administrator.  Witness testimony and an archive of the hearing are available online.  The hearing was intended to provide Wheeler with the opportunity to present himself for the first time in front of the EPW Committee as the Acting Administrator, and to update the EPW Committee on EPA’s agenda since the resignation of Scott Pruitt, EPA’s former Administrator.  Wheeler’s testimony highlighted three main priorities for EPA moving forward:  (1) regulatory certainty between EPA and state/local governments; (2) improvement of programs within EPA; and (3) increased transparency in risk communication. On biofuels, Wheeler stated that EPA has approved pathways for biofuels derived from sorghum which “lays the groundwork for more homegrown fuels under the Renewable Fuels Standard (RFS) and adds diversity to the nation’s biofuel mix.”

Tags: Senate, EPA, RFS

 

By Lynn L. Bergeson

On July 24, 2018, Andrew Wheeler, newly appointed Acting Administrator at the U.S. Environmental Protection Agency (EPA), held a briefing that outlined his plans for the Renewable Fuel Standard (RFS).  He plans on following Scott Pruitt’s work overhauling the policy, including counting ethanol exports toward annual biofuels quotas and bringing corn and oil groups together to overhaul the RFS system.  Wheeler also signed a final notice approving a variety of pathways for renewable fuel derived from sorghum, including biofuel and biodiesel.  The newly approved pathways meet greenhouse gas emission (GHG) reduction requirements to generate credits or Renewable Identification Numbers (RIN) for biomass-based diesel and advanced biofuels under the RFS program.

Tags: Wheeler, EPA, RFS

 

By Lynn L. Bergeson

On July 20, 2018, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) ruled that EPA must reconsider its denial of Ergon-West Virginia, Inc.’s (Ergon) application for a small refinery waiver under the RFS.  The Fourth Circuit stated that EPA relied on an “error-riddled” analysis when it denied the exemption.  Ergon is a small refinery based in West Virginia (with a daily production of 23,500 barrels) that produces primarily diesel which is not easily blended and sold in the local market.  The number of small refinery hardship waivers has jumped in recent years, with 48 waivers granted in 2016 and 2017, prompting outcry from the biofuel industry that the increased waivers undercut the RFS program.


 

By Lynn L. Bergeson

On July 3, 2018, the U.S. Environmental Protection Agency (EPA) announced it was holding a public hearing for the proposed rule “Renewable Fuel Standard Program:  Standards for 2019 and Biomass-Based Diesel Volume for 2020” on July 18, 2018, at 9:00 a.m. in Ypsilanti, Michigan.  83 Fed. Reg. 31098.  The proposed rule was published in the Federal Register on July 10, 2018.  83 Fed. Reg. 32024.   The notice states that the public hearing will provide interested parties the “opportunity to present data, views, or arguments concerning the [proposed rule],” and “EPA may ask clarifying questions during the oral presentations but will not respond to the presentations.”  Parties wishing to testify at the hearing should notify Julia MacAllister at (734) 214-4131 or via e-mail at .(JavaScript must be enabled to view this email address) by July 13, 2018.  EPA will be posting a complete set of documents related to the proposal for public inspection on http://www.regulations.gov, Docket ID No. EPA-HQ-OAR-2018-0167.  Comments on the Proposed Rule are due by August 17, 2018.  More information on the proposed rule is available in our blog item “EPA Releases Proposed Rule Setting 2019 RFS Requirements.”


 

By Lynn L. Bergeson

On June 26, 2018, Scott Pruitt, Administrator of the U.S. Environmental Protection Agency (EPA), signed a proposed rule that includes 2019 Renewable Fuel Standard (RFS) percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel, as well as 2020 renewable volume obligations (RVO) for biomass-based diesel.
 




These blend levels increase requirements from 2018 but are still lower than the statutory levels set by Congress under the RFS. The levels, along with the fact that the proposed rule does not address the reduction in price that Renewable Identification Numbers (RIN) have suffered as a result of EPA’s increased use of small refiner hardship waivers, have resulted in criticism of the rule by biofuel groups. Brent Erickson, Executive Vice President of the Biotechnology Innovation Organization’s (BIO) Industrial & Environmental Section released a statement regarding the proposed rule, stating:
 
We welcome EPA’s decision to raise the advanced and cellulosic biofuel volumes in its proposal, which will help propel the industry forward in 2019. However, the advanced biofuels industry is still suffering the effects of the Agency’s decision to arbitrarily limit growth for low carbon biofuels in 2018, by setting a backward looking RFS requirement. The 2019 volumes should be higher, to correct from last year and also spur growth for the coming year.

EPA’s decision to forgo reallocation of gallons displaced from small refinery waivers at the behest of the petroleum industry is disappointing. In order to ensure a favorable and supportive investment climate for advanced and cellulosic biofuel producers, EPA must reallocate the gallons from the small refinery waivers already issued and into the future.

A comment period will start following publication of the proposed rule in the Federal Register and comments will be due by August 17, 2018. Comments can be filed online at www.regulations.gov under Docket ID No. EPA-HQ-OAR-2018-0167. EPA plans to schedule a public hearing on the proposed rule.

Tags: EPA, RFS, Biofuel

 
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