U.S. Renewable Fuel Standard: Fuel Pathways and Petitions

The previous blog entries have described the U.S. Renewable Fuel Standard (RFS), its importance for the biofuels industry, and some of the policy debates and controversies that have arisen regarding its implementation. As discussed in the initial entry, the original legislative language of the Energy Independence and Security Act (EISA) of 2007, in setting up the “RFS2” program, established four categories of renewable fuels, and in EPA’s implementing regulations under this law, the agency specified that certain fuels and feedstock “pathways” qualified for inclusion within these categories. However, fuel pathways not included within the original regulations must be reviewed and approved by EPA to be considered as renewable fuels under the RFS. In this entry, I’ll briefly describe the petition process by which companies can propose that their fuel pathways be covered under the RFS, and how EPA makes these determinations.

EPA’s regulations implementing the RFS can be found at 40 CFR Part 80. The portion of the regulations which lists all the approved fuels and pathways, and the information needed to generate Renewable Identification Numbers (RINs) for each fuel, is found in Part 80.1426 and is called  “Table 1 To § 80.1426—Applicable D Codes for Each Fuel Pathway for Use in Generating RINs.” This table, which can be found here,  lists for each applicable fuel, the fuel type (e.g. diesel, ethanol, etc.), the feedstock from which it is produced (e.g. corn starch, soybean oil, etc.), production process requirements (if any), and also the “D Code” which identifies the type of fuel in the RINs that each producer is entitled to generate. From time to time, after undergoing a formal rulemaking process, EPA may add generic pathways to this Table. The most recent is the decision that certain processes using grain sorghum to produce ethanol qualified either as an “advanced biofuel” or a “renewable fuel” under the regulations.

EPA created a process by which producers of renewable fuels can apply to have new pathways certified. This is done by the filing of petitions with the EPA Office of Transportation and Air Quality.  Instructions and guidance for filing these petitions are available on EPA’s website. EPA uses these petitions to determine whether or not the fuel is produced from feedstock(s) that qualify as “renewable” under the law’s definitions, and whether production of the fuel will meet the applicable threshold levels of greenhouse gas (GHG) emission reductions (20% for “renewable fuels”, 50% for “advanced biofuels” or “renewable biodiesel”, or 60% for “cellulosic biofuels”). EPA does this by conducting its own Life Cycle Analysis (LCA), using its preferred mathematical modeling based on information supplied by the applicant.

The information required for petitions is as follows:

  • Certain basic identifying information about the company and its facilities, as specified in 40 CFR §80.76.
  • A technical justification for inclusion of the pathway, that includes a description of the renewable fuel, the feedstock(s) used to make it, and the production process. This section of the petition must include process modeling flow charts.
  • A description of the significant differences between fuel production processes already evaluated in the RFS2 rule and the petitioned fuel pathway, and any other relevant information.
  • The estimated mass balance for the pathway, including feedstocks, fuels produced, co-products and waste materials production.
  • Information on any co-products that are anticipated to arise from the process, including their expected use and market value.
  • An energy balance for the pathway, including a list of any energy and process heat inputs and outputs used in the pathway, including such sources produced off site or by another entity. This should include fuels used by type, including purchased electricity and the source and fuel required for any steam or hot water purchased for the fuel production process. In addition, the energy output information should include energy content (with heating value specified) of the fuel product produced and any co-products produced. The extent to which excess electricity is generated and distributed outside the production facility should be described.
  • Any other relevant information pertaining to energy saving technologies or other process improvements.

EPA also asks that petition demonstrate the technical and commercial feasibility of the proposed pathway. The website suggests that, to do this, petitions could include copies of applications for air or construction permits, copies of blueprints of the facility, or photographs of the facility or a pilot plant. This information will help EPA prioritize action on the petition, since it is EPA’s intent to address on a priority basis petitions for products that are closest to actual production.

In addition, if the process makes use of a feedstock which EPA has not previously reviewed or modeled, the following information is needed.

  • The type of feedstock and description of how it meets the definition of renewable biomass at §80.1401.
  • Market value of the feedstock, including market data such as current and projected commodity prices, if applicable.
  • List of other uses for the feedstock, e.g. information on current and projected domestic and international uses and possible international exports.
  • List of chemical inputs needed to produce the renewable biomass source of the feedstock and to prepare the renewable biomass for processing into feedstock, such as fertilizer, pesticides, etc. .
  • The type and amount of energy needed to obtain the feedstock and deliver it to the facility, including, if applicable, the energy needed to plant and harvest the renewable biomass and/or modify the source to create the feedstock.
  • Current and projected yields of the feedstock that will be used to produce the fuels.
  • Any anticipated changes in feedstock and fuel production yields over time.

To date, EPA has not provided any template or any further guidance for how petitions should be structured, so that applicants have a fair amount of leeway in how to provide the requested information and its supporting documentation. EPA has developed Excel spreadsheets which applicants are requested to use to report to the mass balance and energy balance information for the petition, as well as certain information about the source and production of the renewable feedstock. As is always the case in regulatory interactions, it is advisable to have presubmission meetings with agency staff to help in the preparation of petitions and the information that is needed to be included. In my experience in working with EPA to develop a petition under the RFS, I found agency staff to be extremely helpful and cooperative in guiding the petition process. In fact, you may find the agency to be quite flexible on the structure and content of the formal petition, provided that the essential information on mass and energy balance is provided. In other words, there is no “right” or “wrong” format for a new fuel pathway petition, as long as the key information is provided.

As of this writing, EPA has approved the following seven petitions for certifications of additional pathways.

Company Fuel/Feedstock* Date Completed Determination
Sabine Biofuels II, LLC Biodiesel from biogenic waste oils September 26, 2012 Approved
High Plains Bioenergy, LLC Biodiesel from free fatty acids February 17, 2012 Approved
Viesel Fuel, LLC Renewable diesel September 29, 2011 Approved
Changing World Technologies, Inc. Biodiesel from biogenic waste oils, food wastes June 10, 2011 Approved
Endicott Biofuels, LLC Biodiesel e.g. from soybean oil April 6, 2011 Approved
Global Energy Resources Renewable diesel e.g. from soybean oil April 6, 2011 Approved
Triton Energy, LLC Renewable diesel e.g. from soybean oil December 10, 2010 Approved

*I’ve shortened some of these feedstock descriptions, so please note that many of these processes are approved for a broader range of feedstocks than what is listed. Additional information can be found in EPA’s decision letters for these actions, which can be found at the links in the table and on the EPA website.

As of this writing, there are at least 34 additional pathways now being reviewed by EPA. The complete list can be found here. The time required by EPA to review and approve pathways seems to be variable and somewhat hard to predict, and also depends on the novelty of the process. Where a pathway is similar to an existing pathway, EPA can issue a simple letter determination. This is how EPA has approved the 7 pathways noted above, and historically this has taken perhaps 9-12 months from the time of initial submission to the time of approval. Many industry officials have lately observed that the large backlog of petitions at the EPA is leading to extremely long review and approval times for new pathway petitions.

Pathways that utilize new feedstocks or processes not previously modeled by EPA generally require a more lengthy notice-and-comment rulemaking. This requires advance public comment likely would require a longer period of time. Pathways approved in this way would be added to Table 1 of Section 1416, as described above.

Overall, my experience with the RFS program is that EPA staff are available and interested to help potential applicants navigate the process. The staff can be flexible on the structure of new pathway petitions, and can be very helpful in identifying the information that is most needed, as well as the information which is less critical even if required by the regulations. Many have observed that industry and EPA share a common interest in seeing as many fuel pathways added to, or acknowledged under, the RFS as legitimately possible, to make it easier for the yearly fuel volume obligations to be met. As long as a proposed pathway can be shown to utilize an appropriate renewable feedstock and to meet the specified GHG emission reductions, EPA staff should be very willing to assist companies provide the information needed to successfully gain the pathway’s approval.

D. Glass Associates, Inc. is a consulting company specializing in government and regulatory affairs support for renewable fuels and industrial biotechnology. David Glass, Ph.D. is a veteran of over thirty years in the biotechnology industry, with expertise in industrial biotechnology regulatory affairs, U.S. and international renewable fuels regulation, patents, technology licensing, and market and technology assessments. Dr. Glass also serves as director of regulatory affairs for Joule Unlimited Technologies, Inc. More information on D. Glass Associates’ regulatory affairs consulting capabilities, and copies of some of Dr. Glass’s prior presentations on biofuels and biotechnology regulation,  are available at www.slideshare.net/djglass99 and  at www.dglassassociates.com. The views expressed in this blog are those of Dr. Glass and D. Glass Associates and do not represent the views of Joule Unlimited Technologies, Inc. or any other organization with which Dr. Glass is affiliated. Please visit our other blog, Biofuel Policy Watch.

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