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 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

 

By Lynn L. Bergeson

On June 4, 2018, several biofuel and agricultural groups, including the Renewable Fuels Association, the Biotechnology Innovation Organization, the American Coalition for Ethanol (ACE), and the National Biodiesel Board, among others, petitioned the U.S. Environmental Protection Agency (EPA) regarding EPA’s Renewable Fuel Standard (RFS) obligations.  The ACE announcement states that the petition asks EPA to “change its regulations to account for lost volumes of renewable fuel resulting from the unprecedented number of retroactive small refinery exemptions from [RFS] obligations recently granted by EPA.”  The petition states that Section 211(o)(2)(a)(i) of the Clean Air Act “requires EPA to ensure that the annual required volumes of renewable fuel are introduced into the nation’s transportation fuel supply,” and that EPA’s “suddenly reversing its prior policy and granting retroactive exemptions to so many small refineries without adjusting its Annual Standard Equations to account for the resulting lost volumes,” means that EPA is “failing to meet its statutory obligation to ‘ensure’ that transportation fuels in the United States contain the applicable volumes of renewable fuel.”  The petition requests EPA to (1) convene a proceeding to reconsider the annual standard equations in 40 C.F.R. § 80.1405(c); and (2) convene a proceeding to reconsider its final action entitled “Periodic Reviews for the Renewable Fuel Standard Program” (82 Fed. Reg. 58364 (Dec. 12, 2017)).

Tags: EPA, RFS, Biofuel

 

By Kathleen M. Roberts 

On June 13, 2018, representatives of the Biobased and Renewable Products Advocacy Group (BRAG®) and representatives of the Biotechnology Innovation Organization (BIO) met with U.S. Environmental Protection Agency (EPA) staff to discuss the two groups’ white paper, “Proposal for a Toxic Substances Control Act (TSCA) Inventory Representation and Equivalency Determinations for Renewable and Sustainable Bio-based Chemicals.”  BRAG and BIO members provided a presentation for EPA staff that outlined the regulatory challenges and market impendence facing the biobased industry related to current naming conventions.  BRAG and BIO look forward to further dialogue with EPA on this crucial issue.


 

By Lynn L. Bergeson

A coalition will be launched on June 1, 2018, that intends to ensure that Safer Choice will continue to exist as a federal program within the U.S. Environmental Protection Agency (EPA) and to improve the program so that it operates in the most effective way possible for all stakeholders.  The Coalition will comprise companies throughout the chemical value chain -- chemical manufacturers, consumer product companies, and retailers -- as well as non-governmental organizations (NGO).  Benjamin E. Dunham, a Senior Policy Advisor at Holland & Knight LLP, and former Hill staffer, announced the new coalition at EPA’s May 14, 2018, Safer Choice Partner & Stakeholder Summit.  During the summit, industry representatives called for expanding Safer Choice to additional sectors.  EPA staff did not address this suggestion, however, stating instead that they will continue core efforts and urging industry to help with outreach.  Clive Davies, Chief of EPA’s Design for the Environment, stated that there are “activities that we’re going to have to cut back on and activities we’re going to have to maintain at full strength,” noting declining resources.  Davies requested industry input on aspects of Safer Choice that are most important to retain.


 

By Lynn L. Bergeson

On May 11, 2018, the U.S. Environmental Protection Agency (EPA) sent a proposed renewable fuel standard (RFS) biofuel volumes rule for 2019 to the White House Office of Management and Budget (OMB) for pre-publication review.  The proposed rule addresses 2019 renewable blending obligations for cellulosic biofuel, advanced biofuel, and total biofuel, with a proposed 2020 percentage standard for biomass-based diesel. The 2019 blending requirement for biomass-based diesel is 2.1 billion gallons and was included in a final rule from 2017.

Tags: EPA, RFS, OMB

 

By Lynn L. Bergeson

On May 3, 2018, the Advanced Biofuels Association (ABFA) announced that it had submitted a petition in the U.S. Court of Appeals for the D.C. Circuit to review EPA Administrator Scott Pruitt’s decision to provide waivers from RFS requirements. Michael McAdams, President of ABFA, stated:

 “We have seen reports that the number of small refinery exemptions recently granted for compliance years 2016 and 2017 have doubled compared to previous years. ABFA members are concerned that Administrator Pruitt is granting these exemptions in an arbitrary and capricious manner to undisclosed parties behind closed doors with no accountability for its decision-making process.”

“The news reports about these exemptions have had immediate and significant market impacts on the prices of Renewable Identification Numbers (RINs) for the biomass-based diesel (D4) and overall renewable fuel (D6) pools,” continued McAdams. “Dropping RIN prices disincentivize blending, causing economic harm to ABFA’s members and posing a threat to the integrity of the RFS program at large.‚Äč

These concerns originated when a large oil refinery, Andeavor, was granted a hardship waiver, which is typically given to small refineries producing less than 75,000 barrels per day that suffer a disproportionate economic hardship from the cost of RFS compliance. For more information, seeOpen Letter From Iowan Biofuel Producers Urges Protection Of RFS” on the BRAG blog.

Tags: EPA, RFS, ABFA

 
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