Notice of Receipt of Petitions for a Waiver of the 2019 and 2020 Renewable Fuel Standards
| Published date | 19 January 2021 |
| Citation | 86 FR 5182 |
| Record Number | 2021-01017 |
| Section | Notices |
| Court | Environmental Protection Agency |
Federal Register, Volume 86 Issue 11 (Tuesday, January 19, 2021)
[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Notices]
[Pages 5182-5184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01017]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2020-0322; FRL-10011-04-OAR]
Notice of Receipt of Petitions for a Waiver of the 2019 and 2020
Renewable Fuel Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Request for comment on petitions received.
-----------------------------------------------------------------------
SUMMARY: EPA has received a number of petitions last year for a waiver
of the Renewable Fuel Standard (RFS) obligations that apply in 2019 and
2020. These petitions argue that recent events warrant EPA exercising
its general waiver authority on the basis of severe economic harm. In
late March, a group of small refineries requested a waiver of the 2019
and 2020 obligations of their individual small refineries. In April and
May, the Governors of several states submitted three separate petitions
for waivers of the nationwide volumes. The Clean Air Act grants EPA the
discretion to waive the requirements of the RFS program in whole or in
part if the Administrator determines, after notice and comment, that
implementation of the applicable annual volume requirements would
severely harm the economy or environment of a State,
[[Page 5183]]
region, or the United States. EPA is inviting comment on the petitions
we have received.
DATES: Comments: Comments must be received on or before February 18,
2021.
ADDRESSES: You may send your comments, identified by Docket ID No. EPA-
HQ-OAR-2020-0322, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
(our preferred method) Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2020-0322 in the subject line of the message.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov, including any personal information
provided. For the full EPA public comment policy, information about CBI
or multimedia submissions, and general guidance on making effective
comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
Out of an abundance of caution for members of the public and our
staff, the EPA Docket Center and Reading Room will be closed to public
visitors beginning at the close of business on March 31, 2020 (4:30
p.m.) to reduce the risk of transmitting COVID-19. Our Docket Center
staff will continue to provide remote customer service via email,
phone, and webform. We encourage the public to submit comments via
https://www.regulations.gov or email, as there will be a delay in
process mail and no hand deliveries will be accepted. For further
information on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Lauren Michaels, Office of
Transportation and Air Quality, Assessment and Standards Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105; telephone number: (734) 214-4640; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Renewable Fuel Standard (RFS) program began in 2006 pursuant to
the requirements in Clean Air Act (CAA) section 211(o) that were added
through the Energy Policy Act of 2005 (EPAct). The statutory
requirements for the RFS program were subsequently modified through the
Energy Independence and Security Act of 2007 (EISA), leading to the
publication of major revisions to the regulatory requirements on March
26, 2010.\1\ EISA's stated goals include moving the United States
(U.S.) toward ``greater energy independence and security [and]
increas[ing] the production of clean renewable fuels.'' \2\
---------------------------------------------------------------------------
\1\ 75 FR 14670, March 26, 2010.
\2\ Pub. L. 110-140, 121 Stat. 1492 (2007) (``EISA'').
---------------------------------------------------------------------------
The statute includes annual volume targets and requires EPA to
translate those volume targets (or alternative volume requirements
established by EPA in accordance with statutory waiver authorities)
into compliance obligations that obligated parties must meet every
year. EPA promulgated a rulemaking establishing the RFS volume
obligations for 2019 that was published in the Federal Register on
December 11, 2018.\3\ EPA promulgated a rulemaking establishing the RFS
volume obligations for 2020 that was published in the Federal Register
on February 6, 2020.\4\ In those rulemakings, EPA waived the statutory
volumes for cellulosic biofuel, advanced biofuel, and total renewable
fuel utilizing EPA's cellulosic waiver authority; determined the
biomass-based diesel volume for the subsequent year; and established
annual percentage standards for obligated parties. Under the RFS
program, obligated parties, typically gasoline or diesel refiners or
importers, are required to meet annual percentage standards to be in
compliance.
---------------------------------------------------------------------------
\3\ 83 FR 63704.
\4\ 85 FR 7016.
---------------------------------------------------------------------------
Section 211(o)(7)(A) of the CAA provides the Administrator the
discretion to waive the national quantity of renewable fuel required
under the RFS program, in whole or in part, upon petition by one or
more States, or by any party subject to the requirements of the RFS
program. The Administrator may also waive the volume requirements on
his own motion. The Administrator may do so only after consultation
with the Secretary of Agriculture and the Secretary of Energy, and
after public notice and opportunity for comment. A waiver may be issued
if the Administrator determines that implementation of the RFS volume
requirement would severely harm the economy or environment of a State,
region, or the United States, or that there is an inadequate domestic
supply. EPA has previously interpreted this waiver authority in prior
denials of requests for a waiver of the RFS volume requirements \5\ and
in annual rulemakings.\6\
---------------------------------------------------------------------------
\5\ See 73 FR 47168 (August 13, 2008) and 77 FR 70752 (November
27, 2012).
\6\ See, e.g., Renewable Fuel Standard Program--Standards for
2020 and Biomass-Based Diesel Volume for 2021 and Other Changes:
Response to Comments, EPA-420-R-19-018; see also American Fuel &
Petrochemical Manufacturers v. EPA, 937 F.3d 559, 580 (D.C. Cir.
2019) (upholding EPA's interpretation of the severe economic harm
waiver authority in the 2018 RFS rulemaking).
---------------------------------------------------------------------------
II. Petitions Before the Agency
Last year EPA received several petitions from a group of small
refineries and several states seeking a waiver under CAA section
211(o)(7)(A) on the basis of severe economic harm. These petitions are
described below.
A group of small refineries submitted a petition to the
Administrator, dated March 30, 2020, requesting a waiver of the 2019
and 2020 RFS obligations. These parties seek a waiver of their
individual renewable volume obligations (RVOs). They argue that EPA
must grant the waiver under CAA section 211(o)(7)(A) to avoid severe
economic harm to the States and regions in which they operate. The
petition argues that the harm to their individual small refineries is
caused by the coronavirus pandemic and the ensuing drop in
transportation fuel demand; the court decision in Renewable Fuels
Association v. EPA, 948 F.3d 1206, (10th Cir. 2020) (RFA), if the
decision is implemented nationwide; and a rise in RIN prices. The
petition also puts forth a new legal interpretation allowing EPA to
waive individual obligations under the general waiver authority; EPA's
prior interpretations of the general waiver authority only allowed a
reduction in the nationwide volume requirements. EPA also received a
petition from a single small refinery, dated December 30, 2020,
requesting a waiver of its 2019 and 2020 RFS obligations. This petition
provided similar justifications as the above described petition.
Subsequently, several Governors submitted three separate petitions
under CAA section 211(o)(7)(A) on the basis of severe economic harm.
These petitions ask EPA to lower the nationwide renewable volume
obligations. They argue that reduced gasoline and diesel demand due to
the coronavirus pandemic has harmed refiners, and that the 2020 RFS
volume requirements are and will continue to inflict further harm on
these parties. Specifically, the Governor of Louisiana submitted a
petition to the Administrator, dated April 7, 2020, seeking a waiver of
the RFS obligations by an amount commensurate with the current
projected shortfall in national gasoline and diesel consumption. The
Governors of Oklahoma, Texas, Utah, and Wyoming submitted a single
similar petition, dated April 15, 2020; unlike
[[Page 5184]]
the Louisiana petition, this petition does not specify the volume that
should be waived.
Finally, the Governor of Pennsylvania submitted a similar petition
on May 11, 2020, seeking a waiver of the RFS volume requirements. The
Pennsylvania petition alleges that increasing annual RFS volume
obligations severely harmed Pennsylvania and the East Coast region, and
that such harm was compounded both by the Tenth Circuit's RFA decision,
and the coronavirus pandemic and ensuing fall in gasoline and diesel
demand.
Several organizations and individuals, including the environmental
group National Wildlife Federation (NWF), and Members of Congress, have
submitted letters expressing support for the granting of a waiver.
Other organizations and individuals, including the Renewable Fuels
Association and various mayors, have submitted letters expressing
opposition to the granting of a waiver. These petitions and related
letters are available in the docket for this action. Should we receive
additional petitions and letters, we will also add those petitions and
letters to the docket and consider them together with requests already
received. We encourage commenters to carefully review both the
petitions and the letters in the docket in formulating their comments.
EPA is seeking comment on the above-described petitions and the
discrete issues the petitions raise, including:
In general, whether the petitioners have satisfied the
criteria for granting a waiver that EPA previously set forth and/or
whether EPA should modify those criteria as requested by the
petitioners; \7\
---------------------------------------------------------------------------
\7\ See 73 FR 47168 (August 13, 2008) and 77 FR 70752 (November
27, 2012).
---------------------------------------------------------------------------
Whether the petitioners have demonstrated severe economic
harm to a State, a region, or the United States;
Whether the petitioners have demonstrated a sufficient
causal nexus between the RFS volume requirements and such harm
(including whether that nexus is actual causation, significant
contribution, or some other relationship);
Whether the petitioners have accurately assessed the
impacts of a waiver on other directly and indirectly affected persons
(including but not limited to biofuel producers, farmers, consumers of
transportation fuel, and any affected petroleum refiners and
importers), and how such impacts should affect EPA's decision on the
petitions;
Whether, as requested by the petition from the group of
small refineries, EPA may target relief to certain refineries under the
general waiver authority; and
Ultimately, whether EPA should exercise the general waiver
authority in response to any of the petitions. If the commenter
believes EPA should waive volumes, we ask that the commenter identify
the specific obligation that should be waived (e.g., the 2019 or 2020
RFS volume obligations), the amount of the waiver, and any other
details of the remedy desired.
We strongly encourage commenters to include data, specific
supporting examples, and technical analysis, to the extent feasible.
EPA also received a letter from the National Wildlife Federation
suggesting that relief could be granted on the basis of severe
environmental harm. The NWF letter suggests there is evidence of
environmental harm due to land conversion to cropland resulting in
habitat loss and climate change, agricultural runoff and resulting
water quality impacts, an increase in water use to irrigate crop
fields, and increasing smog and corresponding impacts on air quality
due to increasing ethanol content in gasoline. We also solicit comment
on the discrete issues raised by this letter and whether the evidence
presented in the letter would support a waiver on the basis of severe
environmental harm.
EPA is publishing and seeking comment on these petitions to foster
public dialogue on these issues and to inform our future decision-
making. At this time, we are not reconsidering or otherwise reexamining
the 2019 or 2020 RFS rulemakings or any other prior action,\8\ or
soliciting comment on any issues beyond those specifically raised by
the petitions and the NWF letter in support.\9\ We are also not
proposing to either grant or to deny any of the petitions.
---------------------------------------------------------------------------
\8\ See Nat'l Mining Ass'n v. United States Dep't of the
Interior, 70 F.3d 1345, 1351 (D.C. Cir. 1995) (``The decision to
publish a petition for rulemaking . . . is not evidence of a
reexamination of the policy at issue in the petition.''); P & V
Enterprises v. U.S. Army Corps of Engineers, 516 F.3d 1021, 1026
(D.C. Cir. 2008) (``an agency must be able to initiate a public
dialogue without inadvertently reopening established precedent, or
its communications with the public would be unnecessarily
stifled'').
\9\ For example, we are not soliciting comment on EPA's small
refinery exemption policy, the point of obligation, the generation
of RINs for exported fuel, or any other issue beyond those discrete
issues raised by the petitions and the NWF letter.
Dated: January 7, 2021.
Anne L. Austin,
Principal Deputy Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2021-01017 Filed 1-15-21; 8:45 am]
BILLING CODE 6560-50-P
