Ethanol Groups Seek EPA Documents on Small Refinery Waivers

Source: By Todd Neeley, DTN/Progressive Farmer • Posted: Tuesday, September 4, 2018

Two leading ethanol interest groups and one of the nation’s largest ethanol producers asked a federal court on Thursday to force two federal agencies to hand over records related to the issuance of small refinery waivers to the Renewable Fuel Standard.

In a lawsuit filed by the Renewable Fuels Association, Growth Energy and POET, all three entities outline how the EPA and the U.S. Department of Energy have stonewalled their requests dating back to April 2018 and missed deadlines outlined by the Freedom of Information Act, or FOIA.

“EPA conducts the process of evaluating and granting these exemption extensions entirely in secret,” the lawsuit filed in the U.S. District Court for the District of Columbia on Thursday said. “It has even refused to release the documents that reflect its final determinations on whether to extend an exemption for a refinery on the grounds that such information has been claimed as confidential business information. EPA refuses to disclose promptly or at all the basic information regarding exemption extensions.”

The EPA granted a total of 49 such waivers for 2016 and 2017 renewable volume obligations. The EPA said in its latest RFS volumes proposal that it waived a total of 2.25 billion gallons those years. New EPA Acting Administrator Andrew Wheeler has indicated the agency will continue to consider future waiver requests in the same manner.

Thirty-nine senators wrote EPA Acting Administrator Andrew Wheeler on Aug. 24, largely about issues with biodiesel blends. The letter did say, however, “It is critical that EPA appropriately account for any small-refiner economic hardship exemptions that it reasonably expects to grant during the 2019 compliance year in the final rule, or EPA will not be able to fulfill its duty to ensure RVOs are met.”

Wheeler said during recent testimony in Congress that the agency would be providing an online “dashboard” with more details about small-refinery waivers.

Refineries producing transportation fuel are required by the RFS to demonstrate each year that they have blended certain volumes of renewable fuel into gasoline or diesel fuel, or acquired biofuels credits from others called renewable identification numbers, or RINs.The RFS allows certain small refineries — those that produce 75,000 barrels or less per day — to petition EPA for a temporary extension of an exemption.

To date, EPA has yet to make public details regarding how it determines who qualifies for small refinery exemptions. That includes the fact it has granted an exemption, names of exempted refineries, the volume of biofuels exempted, the years covered by the exemptions, as well as EPA’s analysis of whether a small refinery would be subject to disproportionate economic harm complying with the RFS.

“As recently as November of 2016, EPA itself has proposed a rule that would make basic information regarding small refiner exemptions available to the public, including the name of the refinery requesting the exemption, its location, and the nature of the relief requested,” Bob Dinneen, president and chief executive officer of the RFA said in a news release. “EPA has admitted that such information should not be treated as confidential.”

Growth Energy Chief Executive Officer Emily Skor said in a statement the industry “deserves to know why EPA has supercharged” the pace of approvals of small refinery waivers.

“EPA should come clean and provide the public with what it deserves — a full accounting of the stark increase in the number of small refinery exemptions it has granted in recent years,” she said.

Earlier this year, RFA, Growth Energy and other organizations filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit. In addition, RFA, the National Corn Growers Association and others filed a lawsuit in the U.S. Court of Appeals for the 10th Circuit in Denver on specific exemptions granted by EPA.