By Lynn L. Bergeson and Carla N. Hutton
 
As reported in our January 4, 2023, blog item, on January 3, 2023, the U.S. Environmental Protection Agency (EPA) announced the release of a draft document entitled “Biofuels and the Environment: Third Triennial Report to Congress (External Review Draft)” for public comment. 88 Fed. Reg. 72. EPA’s Office of Research and Development (ORD) and Office of Air and Radiation (OAR), in consultation with the U.S. Departments of Agriculture (USDA) and Energy (DOE), prepared the document. The purpose of the report is to examine the effects of the Renewable Fuel Standard (RFS) Program on the environment, including the impacts to date and likely future impacts to the nation’s air, land, and water resources. The draft report focuses on the dominant biofuel sources in the United States: (1) domestic corn ethanol from corn starch; (2) domestic biodiesel from soybean oil; (3) domestic biodiesel from fats, oils, and greases (FOG); and (4) imported ethanol from Brazilian sugarcane.
 
ERG, an EPA contractor, is organizing an independent external peer review of the draft report. The peer review meetings are open to anyone who would like to attend as an observer and will include a brief public comment period on the first day (February 24, 2023). Registration is required. Panel peer review meetings will be held:

• February 24, 2023, 11:00 a.m.-6:45 p.m. (EST);
   
• February 27, 2023, 11:00 a.m.-6:30 p.m. (EST); and
   
• February 28, 2023, 1:00 p.m.-3:40 p.m. (EST).

Comments on the draft report are due March 6, 2023.

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By Lynn L. Bergeson and Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) announced on August 1, 2022, a 15-day public comment period on two additional peer review candidates for the external peer review of the Biofuels and the Environment: Third Triennial Report to Congress (RtC3). 87 Fed. Reg. 46958. EPA previously requested comment on an initial pool of 20 candidates announced in a May 9, 2022, Federal Register notice. EPA states that after considering public comments and the balance and collective expertise of the reviewers, it asked ERG, the independent contractor organizing the peer review, to identify additional candidates to strengthen expertise gaps and allow a more balanced panel. EPA seeks public comment on additional peer review candidates to strengthen underrepresented areas of expertise, specifically economics, water quality, and ecology disciplines. According to EPA, ERG will ensure the peer reviewers’ combined expertise best spans the following disciplines: economics, engineering, agronomics, land use change, remote sensing, air quality, biogeochemistry, water quality, hydrology, conservation biology, limnology, and ecology. Comments are due August 16, 2022.
 
The first report to Congress (RtC1), completed in 2011, provided an assessment of the environmental and resource conservation impacts associated with increased biofuel production and use. The second report to Congress (RtC2) was completed in 2018 and reaffirmed the overarching conclusions of RtC1. RtC3 builds on the previous two reports and provides an update on the impacts to date of the RFS Program on the environment. It assesses air, water, and soil quality; ecosystem health and biodiversity; and other effects. RtC3 also includes new analyses not previously included in RtC1 and RtC2.

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By Lynn L. Bergeson and Carla N. Hutton
 
On January 21, 2022, the U.S. Environmental Protection Agency (EPA) announced a new effort under the Toxic Substances Control Act (TSCA) to streamline the review of new chemicals that could be used to displace current, higher greenhouse gas (GHG) emitting transportation fuels. The Office of Chemical Safety and Pollution Prevention’s (OCSPP) New Chemicals Division (NCD) has implemented a “robust, consistent, and efficient process to assess the risk and apply mitigation measures, as appropriate, for substitutes to petroleum-based fuels and fuel additives that use biobased or waste-derived sources to produce biofuels.” EPA states that this effort supports its goals under the Renewable Fuel Standard (RFS) program, as well as its 2021 Climate Adaptation Action Plan. According to the announcement, EPA has received over 30 biofuel premanufacture notices (PMN) “that collectively describe plans for close to 800 million gallons per year of production of advanced biofuels, that could contribute to annual volume mandates under the RFS program and help support the goals of energy security through increasing domestic production” within the United States.
 
The announcement includes:
 
New Chemicals Division Integrated Approach to Biofuels
 
Under this effort, NCD formed a dedicated team to collaborate on the review of PMNs for biobased or waste-derived feedstocks used to make transportation fuel substitutes with the goals to use the best available science while creating a consistent and efficient review process. EPA states that NCD developed a standardized process for the way biofuel PMNs are reviewed. For example, the same dedicated team will be conducting reviews for all biofuels PMNs, helping to ensure the assessments and determinations are consistent and aligned with requirements. Further, NCD will generate one report for biofuels PMNs that combines the six different risk assessments typically conducted for PMNs, helping to provide a clearer summary explanation of how EPA conducted its assessment and made its determination.
 
For risk management actions, NCD will apply appropriate mitigation measures to address any potential for unreasonable risk identified in an efficient and consistent manner within TSCA consent orders and significant new use rules (SNUR).
 
Outreach and Training
 
According to the announcement, OCSPP is launching outreach and training for interested stakeholders in the biofuels sector to review TSCA requirements, outline the streamlined approaches for risk assessments and risk management actions, and provide information on how to navigate the new chemicals PMN process.
 
OCSPP will hold a kick-off meeting on February 9, 2022, to provide an overview of this initiative and answer questions from stakeholders. Registration for the meeting is open.
 
Other planned outreach and training related to this biofuels initiative include webinars on:

• TSCA requirements and the PMN process;
• The TSCA Inventory, nomenclature, and Bona Fide process;
• New chemicals risk assessments, including applications of the tools, models, and databases; and
• New chemicals risk management actions, including TSCA Section 5 orders and SNURs.

EPA states that it may add additional outreach and training sessions, including training opportunities applicable to all new chemical submitters, based on stakeholder interest and feedback.

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By  Lynn L. Bergeson 
 
On May 25, 2021, U.S. Senators Deb Fischer (R-NE) and Tammy Duckworth (D-IL) introduced the bipartisan Renewable Fuel Standard (RFS) Integrity Act of 2021. Aiming to provide more certainty to rural America, this legislation would require that small refineries petition for RFS hardship exemptions by June 1 of each year. According to Senator Fischer, the RFS Integrity Act of 2021 would ensure that the U.S. Environmental Protection Agency (EPA) properly accounts for exempted gallons in the annual Renewable Fuel Obligations (RVO) it sets every November. The legislation would also require that EPA publish the name of the refinery and volume that is exempted at the same time that the refiner receives the exemption.

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By Lynn L. Bergeson

On November 18, 2020, U.S. Representatives Cheri Bustos (D-IL) and Jim Hagedorn (R-MN) introduced a bipartisan, bicameral legislation that aims to lower greenhouse gas (GHG) emissions and encourage low-carbon fuel production. Titled “The Streamlining Advanced Biofuels Registration Act,” this bill would eliminate existing barriers for biofuels plants to increase production of cellulosic biomass into renewable fuels. Representative Bustos criticized the lack of timely response from the U.S. Environmental Protection Agency (EPA), adding that through this bill, “we can encourage the use of cellulosic biomass in low-carbon, renewable fuel production and continue to create cleaner, more environmentally-friendly fuels.” The legislation would ensure that EPA acts on outstanding applications under the Renewable Fuel Standard (RFS) and compel EPA to accept applications if the fuel could participate in at least one state’s clean transportation program. Biofuels industry stakeholders have demonstrated support for the bill.

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By Lynn L. Bergeson

On October 8, 2020, the European Commission (EC), under the European Union (EU) State aid rules, approved the prolongation of tax exemptions for biofuels in Sweden. Having exemptions for liquid biofuels from energy and carbon emissions taxation since 2002, Sweden’s scheme aims to increase biofuels use while reducing the fossil fuels use in transport. With EC’s decision, the tax exemption has now been prolonged by one year from January 1, 2021, until December 31, 2021. EC stated that the tax exemptions are not only appropriate, but necessary for stimulating the production and consumption of domestic and imported biofuels in Sweden. In addition, EC found that the Swedish scheme will contribute to the delivery of the EU’s goals in the Paris Agreement and EU’s move towards its 2030 renewables and carbon emissions targets.

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By Lynn L. Bergeson 

On September 18, 2020, ELI will host a webinar titled “Advanced Biofuels: Fuel for the Future?” from 12:00 p.m. to 1:30 p.m. (EDT). The webinar, as implied by its title, will focus on the practical and policy challenges and opportunities facing advanced biofuels and the impacts of the coronavirus on biofuel production and research. Panelists may include:

• Lauren Helen Leyden, Partner, Akin Gump Strauss Hauer & Feld, L.L.P. (invited);

• Lynn McKay, Assistant General Counsel, Volkswagen Group of America (invited);

• Shailesh Sahay, Senior Regulatory Counsel, POET, Inc.;

• Luke Tonachel, Director, Clean Vehicles and Fuels Group, Climate & Clean Energy Program, Natural Resources Defense Council (NRDC); and

• Stephanie Wettstein, Ph.D., Associate Professor, Montana State University (invited).

The webinar will be open to the public; registration, however, is required. Click here to register.

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By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On October 2, 2019, the Governor of Minnesota, Tim Walz, announced that applications are now open for all 15 seats on the Governor’s Biofuels Council.  Established in September 2019 by Governor Walz, the Governor’s Biofuels Council advises the Governor and cabinet on how best to support Minnesota’s biofuels industry. Council members will include representatives of agriculture, biofuels, and transportation industries and environmental and conservation groups.  The Governor’s Biofuels Council is tasked with creating a report to advise the Governor and cabinet on the best methods to expand the use of biofuels, increase the carbon efficiency of biofuels, and implement biofuels as part of Minnesota’s larger goal to reduce greenhouse gas (GHG) production in the transportation sector.  Under Governor Walz’s September 16, 2019, Executive Order, the Governor’s Biofuels Council must complete the report by November 2020.  Thus far, 30 individuals have applied, and Governor Walz encourages “Minnesotans in every corner of the state to apply and share their expertise on this critical issue.”  Interested parties can access the application here.

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By Lynn L. Bergeson

On March 13, 2019, the European Commission (EC) published a fact sheet on the sustainability for biofuels specified.  EC adopted a delegated act that sets out the criteria for determining high low indirect land-use change (ILUC) risk feedstock for biofuels and the criteria for certifying ILUC-risk biofuels, bioliquids, and biomass fuels.  ILUC-risk fuels consist of fuels produced from food and feed crops that significantly expand globally into land with high carbon stock (high ILUC-risk fuels).  The consequences of creating high ILUC-risk fuels relate to the release of greenhouse gas (GHG) emissions, which negates the emissions savings from the use of biofuels rather than fossil fuels.  ILUC is addressed in the delegated act through two measures:   one measure sets national limits for the total contribution towards the renewable energy targets for biofuels, bioliquids, and biomass fuels from food or feed crops; and the other measure sets national limits as Member States’ 2019 level for the period 2021-2023.

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By Lynn L. Bergeson

On February 7, 2019, the U.S. Department of Energy (DOE) Energy Efficiency and Renewable Energy’s (EERE) Bioenergy Technologies Office (BETO) announced the development of spatial models, from a BETO-funded project, to determine how forest management can produce biofuels, restore at-risk salmonids, and reduce the risk of wildfires. Conducted by scientists at Pacific Northwest National Laboratory (PNNL), Oak Ridge National Laboratory (ORNL), and the U.S. Forest Service (USFS), the study assessed the impacts of thinning forests on habitats, which include benefits to the environment and the economy. While PNNL researchers are focused on using a model to relate forest treatments to streamflow and temperature and ORNL researchers are focused on models linking streamflow and temperature, USFS is using a model to evaluate synergies among thinning effects, which includes biofuel feedstock production. For further details on how the study supports the biomass industry, click here.

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