[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]


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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.

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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\
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    \1\ 75 FR 14670, March 26, 2010.
    \2\ Pub. L. 110-140, 121 Stat. 1492 (2007) (``EISA'').
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    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.
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    \3\ 83 FR 63704.
    \4\ 85 FR 7016.
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    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\
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    \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).
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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\
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    \7\ See 73 FR 47168 (August 13, 2008) and 77 FR 70752 (November 
27, 2012).
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     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.
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    \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]
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