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 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.​

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

 

By Lynn L. Bergeson

On April 6, 2018, a coalition of biofuel producers wrote to Senator Chuck Grassley (R-IA) and Senator Joni Ernst (R-IA) urging them to reach out to President Trump to protect the Renewable Fuel Standard (RFS) program. EPA, under the direction of Administrator Scott Pruitt, recently provided a large oil refining company, Andeavor, with a hardship waiver. These waivers are typically given to small refineries producing less than 75,000 barrels per day that would suffer a “disproportionate economic hardship” from the costs of RFS compliance. Since Andeavor’s exemption was reported, Renewable Identification Number (RIN) prices have fallen significantly, questions have arisen regarding the legality of such an exemption for a large company, and doubt has been cast onto the future stability of the RFS program.

The producers’ letter states:

Based on the data that has been made public about 2016 exemptions, IRFA estimates that the 25 exemptions for 2017 likely equate to over one billion gallons of demand destruction taken directly from the 15-billion-gallon RFS level for last year.
 
This represents an unprecedented attack on the RFS and the President’s commitment to defending the 15-billion-gallon level. The small refinery exemption provision of the RFS was clearly intended for small refiners who could prove disproportionate economic harm. Such waivers were, as one would expect, few and far between during the Bush and Obama Administrations. We are now seeing that Pruitt has weaponized the small refinery exemption provision in an effort to effectively render the RFS useless.
 

In addition to concern over Andeavor’s hardship waiver, the biofuel producers also request that the senators push the President to refuse any waiver or price cap on RINs and order Administrator Pruitt to approve year-round E15 sales, increasing the amount of RFS credits generated and driving price of RINs down.


 

 

By Lynn L. Bergeson

On March 8, 2018, Senator Tom Udall (D-NM) and Representative Peter Welch (D-VT) introduced companion legislation (S. 2519, H.R. 5212) in the U.S. Senate and U.S. House of Representatives, respectively, to reform the Renewable Fuel Standard (RFS).  The Growing Renewable Energy through Existing and New Environmentally Responsible (GREENER) Fuels Act aims to:

  • Phase out the corn ethanol mandate and immediately reduce the amount of ethanol in fuel by as much as one billion gallons by capping the amount of ethanol that can be blended into conventional gasoline at 9.7 percent;
  • Help farmers return cornfields to pasture and wildlife habitat through a ten cents per renewable identification number (RIN) fee to fund a new private land protection and restoration fund in the U.S. Treasury; and
  • Extend the cellulosic next generation biofuel mandate until two billion gallons of annual production is achieved or 2037, whichever is soonest, and improve the way the mandate is implemented to produce liquid transportation fuels that dramatically reduce greenhouse gas (GHG) emissions. ​ 

According to Representative Welch, the “legislation reforms the mandate to dramatically reduce its environmental impact and to support the continued growth of advanced biofuels.”

Tags: RFS, Biofuel

 

By Lauren M. Graham, Ph.D.

On December 27, 2017, the U.S. Environmental Protection Agency (EPA) proposed to approve new fuel pathways under the Renewable Fuel Standard (RFS) program.  Specifically, EPA is proposing to amend RFS regulations to define the term “distillers sorghum oil” and to add approved pathways from the production of biodiesel and heating oil from distillers sorghum oil via a transesterification process, and renewable diesel, jet fuel, heating oil, naphtha, and liquefied petroleum gas (LPG) produced from distillers sorghum oil via a hydrotreating process.  Distillers sorghum oil is grain sorghum oil extracted at any point downstream from sorghum grinding at dry mill ethanol plants. 
 
The proposed rule outlines EPA’s analysis of the lifecycle greenhouse gas (GHG) emissions associated with certain biofuels produced from distiller sorghum oil.  Based on its assessment, EPA determined that using distillers sorghum oil as feedstock results in no significant agricultural sector GHG emissions, and that biodiesel and heating oil produced from distillers sorghum oil via a transesterification process, and renewable diesel, jet fuel, heating oil, naphtha, and LPG produced from distillers sorghum oil via a hydrotreating process, would meet the lifecycle GHG emissions reduction threshold of 50 percent required for advanced biofuels and biomass-based diesel under the RFS program.  Comments on the analysis are due by January 26, 2018.
 
In addition to EPA approval of the new pathway, producers may wish to confirm that the final sorghum-based product and all intermediates are listed on the Toxic Substances Control Act (TSCA) Inventory or covered by an exemption prior to commercialization.  While naturally occurring substances are automatically added to the TSCA Inventory, the TSCA “naturally occurring exemption” is very narrow.  Specifically, a naturally occurring substance includes “any chemical substance which is naturally occurring and:  (1) [w]hich is (i) unprocessed or (ii) processed only by manual, mechanical, or gravitational means; by dissolution in water; by flotation; or by heating solely to remove water; or (2) [w]hich is extracted from air by any means.”

Tags: EPA, RFS, Biofuel

 

By Lauren M. Graham, Ph.D.

On December 12, 2017, the U.S. Environmental Protection Agency (EPA) published in the Federal Register the Renewable Fuel Standard (RFS) Program:  Standards for 2018 and Biomass-Based Diesel Volume for 2019 final rule.  This final rule sets the annual percentage standards for cellulosic biofuel, advanced biofuel, and total renewable fuel for motor vehicle gasoline and diesel produced or imported in 2018, as well as biomass-based diesel for 2019.  As reported in the Biobased and Renewable Products Advocacy Group (BRAG®) blog post EPA Issues Final 2018 RFS Requirements, the final volume requirements are:

  • Cellulosic biofuel, from 311 million gallons in 2017 to 288 million gallons in 2018;
  • Advanced biofuel, from 4.28 billion gallons in 2017 to 4.29 billion gallons in 2018;
  • Renewable fuel, from 19.28 billion gallons in 2017 to 19.29 billion gallons in 2018; and
  • Biomass-based diesel, 2.1 billion gallons in 2018 and 2019.

​​ These final volumes change the percentage standards to 0.159 percent for cellulosic biofuel, 2.37 percent for advanced biofuel, 10.67 percent for renewable fuel, and 1.74 percent for biomass-based diesel.  This final rule becomes effective on February 12, 2018.
 
Additionally, EPA announced the availability of its “Periodic Reviews for the Renewable Fuel Standard Program.”  Pursuant to the Clean Air Act (CAA), EPA must conduct periodic reviews of certain aspects of the RFS program.  In the report, EPA describes its interpretation of the statutory requirement to conduct periodic reviews, and prior actions that EPA has taken to fulfill its obligations to conduct such reviews.

Tags: EPA, RFS

 

By Kathleen M. Roberts

On December 8, 2017, the U.S. Environmental Protection Agency (EPA) issued a notice in the Federal Register regarding its plans to submit an information collection request (ICR) to the Office of Management and Budget (OMB) on recordkeeping and reporting for the Renewable Fuel Standard (RFS) program.  The notices states that the ICR aims to streamline and update estimates related to the RFS program and consolidate all RFS estimates into one, consistent, and easy-to-understand format.
 
EPA is seeking public comment and information to enable it to: 

  • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
  • Evaluate the accuracy of EPA’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
  • Enhance the quality, utility, and clarity of the information to be collected; and
  • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology.
​​According to the notice, EPA intends to amend the ICR based on the comments received.  More information regarding the ICR is available in the EPA docket.  Comments are due by February 6, 2018
Tags: EPA, RFS, Biofuel

 

 

By Kathleen M. Roberts

On November 30, 2017, the U.S. Environmental Protection Agency (EPA) issued its final 2018 volume requirements under the Renewable Fuel Standard (RFS) program for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel.  A pre-publication of the final rule is available now.  The final rule sets the annual percentage standards for cellulosic biofuel, advanced biofuel, and total renewable fuel for motor vehicle gasoline and diesel produced or imported in 2018, as well as biomass-based diesel for 2019.  The proposed volume requirements are:

  • Cellulosic biofuel, from 311 million gallons in 2017 to 288 million gallons in 2018;
  • Advanced biofuel, from 4.28 billion gallons in 2017 to 4.29 billion gallons in 2018;
  • Renewable fuel, from 19.28 billion gallons in 2017 to 19.29 billion gallons in 2018; and
  • Biomass-based diesel, 2.1 billion gallons in 2018 and 2019.​

The cellulosic biofuel, advanced biofuel, and renewable fuel volumes increased slightly from the values proposed in July 2017, as reported in the Biobased and Renewable Products Advocacy Group’s (BRAG®) blog post EPA Releases Proposed 2018 RFS Volume Requirements.  These final volumes change the percentage standards to 0.159 percent for cellulosic biofuel, 2.37 percent for advanced biofuel, 10.67 percent for renewable fuel, and 1.74 percent for biomass-based diesel.  This final rule becomes effective on 60 days after publication in the Federal Register

Tags: EPA, Biofuel, RFS

 

By Lauren M. Graham, Ph.D.

On November 30, 2017, the U.S. Environmental Protection Agency (EPA) issued a notice in the Federal Register announcing its decision to deny several petitions requesting that EPA initiate a rulemaking to change the point of obligation for compliance under the Renewable Fuel Standard (RFS) program.  Under the RFS program, refiners and importers of gasoline and diesel fuel are identified as “obligated parties” responsible for compliance with the RFS annual standards.  In 2016, EPA received several petitions requesting a revision of the definition of “obligated party,” stating that such a change would align compliance responsibilities with the parties best positioned to make decisions on how much renewable fuel is blended into the transportation fuel supply in the United States.  As previously reported in the Biobased and Renewable Products Advocacy Group (BRAG®) blog post, “EPA Announces Opportunity To Comment On Changing The RFS Point Of Obligation,” EPA requested public comment on the petitions and the Agency’s proposed denial of the requests.  In reviewing the petitions and public comments, EPA stated that its primary consideration was whether or not a change in the point of obligation would improve the effectiveness of the program to achieve Congress’s goals.  According to the notice, EPA determined that such a change would not improve the efficiency of the program, but would unnecessarily increase the complexity of the program and undermine the success of the RFS program.

Tags: EPA, RFS, Biofuel

 
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