RFA asks EPA to deny secretive ‘gap year’ RFS waiver requests

By Renewable Fuels Association | May 26, 2020

The Renewable Fuels Association on Friday urged the U.S. Environmental Protection Agency to deny new petitions submitted by refiners for past-year waivers from their renewable volume obligations. In a letter to EPA Administrator Andrew Wheeler, RFA President and CEO Geoff Cooper argued that granting such waivers would be unlawful, inconsistent with the statute, and contrary to EPA’s own policies and regulations. According to the letter, the petitions are nothing more than a “thinly veiled attempt to circumvent” the Tenth Circuit’s decision in January, in the case of Renewable Fuels Association et al. v. EPA, that struck down a number of exemptions granted by the agency.

In the letter, Cooper cited May 20 testimony by U.S. Department of Energy Under Secretary Mark Menezes, who described these new petitions as “gap filings” intended to establish, without regard to merit, a continuous string of exemptions “to be consistent with the Tenth Circuit decision.” In January, the court found that refiners may only receive an exemption if it is an extension of a previously existing exemption. In light of the court’s ruling, some small refineries are now seeking retroactive exemptions for previous years to “fill the gaps” so that they may argue they had a continuously extended exemption.

According to RFA, some refiners are trying to “…pretend there could have been a hardship years ago that could justify the granting of an exemption today, years after the compliance deadline had passed for the year the exemption is sought. It is utterly preposterous that EPA would even consider requests for prior-year exemptions from refineries who readily complied with that year’s RFS obligations and who did not originally seek exemptions during the year of purported ‘hardship.’ Now, these refiners are attempting to re-write history in a cynical attempt to maintain an illegally exploited compliance loophole.”

In his letter, Cooper also noted that these prior-year petitions are not being counted on the EPA’s online small refinery exemption “dashboard,” significantly undermining the promise of increased transparency made by EPA following the secretive issuance of 54 exemptions from the 2016-2017 RFS compliance years. “Clearly, only refiners applying for past-year petitions know what is going on at EPA, while biofuel producers and the general public are again being kept in the dark.”

“We urge EPA to clarify that small refinery exemption extension petitions for past compliance years are inconsistent with the RFS and will not be entertained by the Agency,” Cooper concluded. “We also urge that EPA expeditiously deny any petitions that have already been received, or that are received going forward, for past compliance years.”