Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C., law firm providing biobased and renewable chemical product stakeholders unparalleled experience, judgment, and excellence in bringing innovative products to market.

By Lynn L. Bergeson
 
On May 5, 2021, the U.S. Environmental Protection Agency (EPA) published a notice of disclosure to all obligated parties under the Renewable Fuel Standard (RFS) program that have submitted small refinery exemption (SRE) petitions and to all parties whose RFS information otherwise resides in EPA’s Moderated Transaction System (EMTS).  EPA’s action is in response to a U.S. Government of Accountability Office (GAO) request to disclose such information that has been submitted to EPA that claims to be, or is determined to be, confidential business information (CBI).  The information to be disclosed includes documents and data related to SRE petitions received by EPA since the beginning of the RFS program through the present. Such records include:

  • All materials submitted by small refineries as part of its SRE petition;
  • Any documentation sent by the U.S. Department of Energy (DOE) to EPA summarizing DOE’s findings and score(s) associated with the petition(s) and any EPA responses to such petitions;
  • Any EPA record that addresses the subject of the exemption petition(s), including EPA analysis done in addition to DOE’s findings;
  • EPA’s final exemption decision sent to the refinery; and
  • RFS related transaction-level data contained in EMTS, including Renewable Identification Number (RIN) transactions under RFS.

These records and information will be shared with GAO no later than 16 days after the publication of the notice.  All CBI-claimed documents will be destroyed, deleted, or returned to EPA at the conclusion of GAO's review.

Tags: RFS, SRE, CBI, Biofuel, DOE

 

By  Lynn L. Bergeson

On April 1, 2021, the U.S. Environmental Protection Agency (EPA) issued its final modifications of certain compliance dates under the Renewable Fuel Standard (RFS) program. The final rule extends the RFS compliance deadline for the 2019 and 2020 compliance years and its associated deadlines for submission of attest engagement reports for the 2019 and 2020 compliance years for small refineries. The new 2019 compliance year and attest engagement report deadlines are now November 30, 2021, and June 1, 2022, respectively. The new 2020 compliance year and attest engagement report deadlines are now January 31, 2022, and June 1, 2022, respectively. EPA has also extended the deadline for submission of attest engagement reports for the 2021 compliance year for obligated parties to September 1, 2022. The final rule became effective on March 20, 2021.

Tags: EPA, RFS, Biofuel

 

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

EPA, on January 15, 2021, issued a proposed rule to modify certain compliance dates under the Renewable Fuel Standard (RFS). The proposed deadline extension for the 2019 compliance year and the associated deadline for submission of attest engagement reports for the 2019 compliance year for small refineries are as follows: November 30, 2021, and June 1, 2022, respectively. The second extension would be for the 2020 compliance year and the associated deadline for submission of attest engagement reports for obligated parties and Renewable Identification Number (RIN)-generating renewable fuel producers and importers, among other parties holding RINs. The new deadlines for these would be January 31, 2022, and June 1, 2022, respectively.

Comments on the proposed rule must be submitted by March 11, 2021. A virtual public hearing will take place on February 9, 2021, to discuss questions and concerns about the proposed rule.


 

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

On January 19, 2021, EPA issued a request for comment on petitions submitted in 2020 for a waiver of the RFS obligations that apply to 2019 and 2020. The petitions argue that recent events warrant EPA exercising its general waiver authority on the basis of severe economic harm. In late March 2020, a group of small refineries requested a waiver of the 2019 and 2020 RFS obligations. In April 2020, Governors of several states submitted three petitions for waivers of the nationwide volumes. Under the Clean Air Act (CAA), EPA is granted the discretion to waive the requirements of the RFS program in whole or in part if the EPA Administrator determines, after a notice and comment, that the implementation of the applicable annual volume requirements would severely harm the economy or environment of a state, region, or the United States. Comments on the aforementioned petitions are due on February 18, 2021.


 

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.


 

By Lynn L. Bergeson

On May 11, 2020, a total of 70 Mayors from various cities in the United States submitted a letter to Andrew Wheeler, U.S. Environmental Protection Agency (EPA) Administrator, criticizing the decision not to uphold the Renewable Fuel Standard (RFS) and not to reject proposed waivers under Section 211(o)(7) of the Clean Air Act. The Mayors state that this decision on waivers is already causing damage to the economy and will continue to devastate farmers, workers, and families who depend on the biofuels industry. The letter emphasizes:

The request for these waivers is unjustified under the law. Such waivers from RFS requirements may only be granted if there is a demonstration that the RFS causes severe economic harm to the economy as a whole. In reality, refiner market conditions are a result of plummeting demand for gasoline across the country, not compliance with the RFS. Further, the RFS already considers demand reduction by adjusting annual blending volumes to reflect actual motor fuel demand.

Furthermore, the signatory Mayors oppose the claim that higher Renewable Identification Numbers (RIN) prices damage biofuel refineries. Referencing an EPA market analysis, the Mayors argue that higher RIN prices are recovered in the sale of the product rather than disadvantaging merchant refiners. The letter concludes by requesting that EPA reject unjustifiable RFS waiver requests.

Tags: Biofuel, RFS

 

By Lynn L. Bergeson

On February 6, 2020, EPA issued its final rule setting 2020 renewable fuel percentage standards under its Renewable Fuel Standard (RFS) Program. The final rule established the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to gasoline and diesel transportation fuel produced or imported in 2020. The volume requirements set are below the statutory volume targets. In addition to the 2020 annual percentage standards, the final rule establishes the applicable volume of biomass-based diesel for 2021. Other changes include the percentage standard calculations to account for fuel volumes exempted from the renewable volume obligation (RVO). Effective on April 6, 2020, this rule finalizes regulatory changes to the RFS Program, including clarifications of existing regulations, new pathways, and flexibilities for regulated parties.

Tags: RFS, Biofuel

 

By Lynn L. Bergeson

On December 19, 2019, the U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, signed the final rule on the Renewable Fuel Standard (RFS) program, setting the renewable fuel percentages for 2020. Titled Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021 and Other Changes, the final rule establishes the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to gasoline and diesel transportation fuel produced or imported in 2020. The rule also establishes the applicable volume of biomass-based diesel for 2021. The final volume requirements can be accessed here. Thus far, industry stakeholders seem displeased with the standard calculations to account for volumes of fuels projected to be exempted from the renewable volume obligations (RVOs). The waiver limits biofuel producers were hoping for are not reflected in the final rule. While the final rule has not yet been published in the Federal Register (FR), it will become effective 60 days after the FR publication. Bergeson & Campbell, P.C. will continue to monitor and provide further details once the final rule is published.

Tags: RFS, Biofuel

 

By Lynn L. Bergeson

On November 14, 2019, Senator Tom Udall (D-NM) and Representative Peter Welch (D-VT) introduced legislation seeking to reform the Renewable Fuel Standard (RFS) under the Clean Air Act (CAA). The Growing Renewable Energy through Existing and New Environmentally Responsible (GREENER) Fuels Act is intended to mitigate the “harmful environmental impacts of the corn ethanol mandate,” according to a press release issued by the lawmakers. The bill would phase out the corn ethanol mandate and immediately reduce the amount of ethanol in fuel by as much as 1 billion gallons by capping the amount of ethanol that can be blended into conventional gasoline at 9.7 percent. The legislation also seeks to help farmers return cornfields to pasture and wildlife habitat through a 10 cents per renewable identification number (RIN) fee to fund a new Private Land Protection and Restoration Fund in the U.S. Treasury. The fund will help pay for Department of Interior (DOI) programs that pay for easements on private lands to keep them out of agricultural production; keep the lands in conservation uses like grass, forest, stream buffers, or pollinator habitat; and help farmers transition land currently in crop production into other uses. The GREENER Fuels Act also would extend the cellulosic and advanced next-generation biofuel mandate until 2 billion gallons of annual production is achieved or 2037, whichever is sooner, and alters the way the mandate is implemented to produce liquid transportation fuels that dramatically reduce greenhouse gas emissions.

Tags: RFS, Biofuel

 

By Lynn L. Bergeson

On November 4, 2019, 60 organizations unified in an effort to urge U.S. President Donald Trump to reconsider EPA’s proposed amendments to the Renewable Fuel Standard (RFS) program. Signed by organizations such as the Biotechnology Innovation Organization (BIO), a Biobased and Renewable Products Advocacy Group (BRAG®) member, the letter to the President indicates flaws within the aforementioned proposal released on October 15, 2019. Arguing that the proposed amendments would not accurately account for small refiner exemptions (SRE), the letter authors state that “[t]he flawed proposal swaps out a critical component of the SRE remedy sought by farmers and the biofuels industry,” failing to achieve its mission to incentivize farm economies. Given the proposal to recover gallons of biofuel exemptions based on the U.S. Department of Energy’s (DOE) recommendations, the proposed amendment would lead to a “bureaucratically uncertain path that recovers only one fraction of those gallons lost to SREs and could result in RFS backsliding in 2020.” Therefore, the letter concludes by urging President Trump to consider SRE accountability based on a rolling average of the actual volumes exempted by EPA during the three compliance years. Similar concerns and requests have been expressed by many industry stakeholders via docket comments as well as during last week’s public hearing held by EPA. The comment period ends on November 29, 2019, and doubts continue as industry expects EPA’s final rulemaking.

Tags: RFS, BIO, BRAG

 
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