EPA issues Final Rule for controversial RFS pathways

In late June, the U.S. Environmental Protection Agency announced the promulgation of a final rule establishing that biofuels made using two plant species – giant reed (Arundo donax) and napier grass (Pennisetum purpureum) – as feedstock would qualify as “cellulosic biofuels” under the Renewable Fuel Standard (RFS). This announcement was just the latest in a series of RFS rulemakings that EPA has announced during 2003, but it is notable because approval of the pathways for these two feedstocks had been delayed due to concerns over the potential invasiveness of these species.

EPA’s announcement, made in late June but not yet, as of this writing, published in the Federal Register, was the third regulatory announcement under the RFS that the agency has made in 2013. Just recently, in May of this year, the agency issued a package of proposed regulatory amendments under the RFS, that included proposals for a number of new pathways, notably including production of butanol and several pathways in which landfill biogas is used to manufacture transportation fuels. Following Federal Register publication of this Proposed Rule on June 14, 2013, the public comment period is scheduled to end on July 15. Earlier this year, on February 22, EPA issued a Final Rule adding several new fuel production pathways to the list of approved pathways under the FRS, including the use of Camelina (Camelina sativa) oil as a feedstock for production of biomass-based diesel and naphtha and liquefied petroleum gas, and energy cane (certain hybrids derived from Saccharum spontaneum) as a feedstock for ethanol. The February rule-making was discussed in a bit more detail in an entry in my Biofuel Policy Watch blog. Notable in the February rule-making was EPA’s announcement that it had not yet reached a conclusion about whether to approve pathways for biofuels produced from giant reed or napier grass, in view of the comments it received from the public about the potential invasive nature of these species. The late June announcement indicates that EPA has reached a favorable conclusion about these species, and that the agency has determined that these plants can be used as a feedstock under the RFS, subject to certain conditions included in the Final Rule.

The issues regarding these two species and their potential invasiveness have been widely discussed over the past several years (for example, this article on Arundo donax). I wrote about these concerns in a blog post in April regarding the broader issue of whether restrictions or controls were needed on the use of invasive or noxious plant species for biofuel production. There has always been concern over the potentially negative environmental consequences of the growth of invasive species, and the recent commercial interest in large-scale cultivation of nontraditional plant species for industrial purposes has once again brought such concerns into the limelight. Although there are federal and state laws in the U.S. regarding the growth or proliferation of invasive or noxious species, some observers have questioned whether such laws are sufficient to regulate large-scale commercial use of species that, in some environments, may have invasive characteristics. My April blog post discussed two academic papers analyzing the existing regulatory framework, and among my conclusions were that the cultivation of such species should be allowed as long as growers were required to follow best practices for growth management of such species.

EPA’s decision to approve pathways under the RFS based on giant reed and napier grass followed a similar line of thinking, and for what I believe is the first time under the RFS the acceptance of the pathways was made contingent upon adherence to specified growing practices and related administrative requirements. First, EPA confirmed that it had conducted a life cycle analysis (LCA) for these pathways as required under the regulations, and has confirmed that biofuels made from these species would achieve the 60% reduction in greenhouse gas emissions that would qualify the fuels as “cellulosic biofuels” under the RFS. This analysis was based on EPA’s previous LCA for fuels produced from switch grass; but it is important in that cellulosic biofuels can generate Renewable Identification Numbers (RINs) having the greatest potential economic value, and because commercially-available cellulosic fuels are sorely needed to meet the yearly mandates under the RFS. So the availability of new pathways for cellulosic fuels is significant, especially since there is at least one commercial biofuel facility under construction that has been designed to use Arundo donax as its feedstock – this is the Chemtex plant being built in North Carolina (described in my earlier blog post about commercial-scale cellulosic fuel plants in operation or under construction). The significance of this decision for this planned 20 million gallon-per-year ethanol plant is evidenced by the fact that EPA’s approval in June was heralded by a press release from one of North Carolina’s two U.S. senators.

However, in deciding to add these pathways to the list of approved pathways under the RFS, EPA has adopted additional registration, recordkeeping, and reporting requirements to minimize the potential risk of invasiveness. Specifically, in the Final Rule EPA is requiring that renewable fuel producers demonstrate that the growth of giant reed or napier grass will not pose a significant likelihood of spreading beyond the planting area or that such a risk will be minimized through an EPA-approved Risk Mitigation Plan (RMP). According to EPA’s Regulatory Announcement for this Rule, acceptable RMPs would include “plans for early detection and rapid response to potential spread, best management practices as modeled by existing state and federal invasive species management programs, continuous monitoring and reporting of site conditions, a plan for site closure and post-closure monitoring, and identification of a third party auditor who will evaluate the performance of the RMP on an ongoing annual basis.” The preamble to the Final Rule discusses existing federal and state regulations relating to management practices for invasive species, as well as voluntary best management practices such as the one developed for Arundo donax by the North Carolina Department of Agriculture and Consumer Services, the NC State University Cooperative Extension, and the Biofuels Center of North Carolina, which I discussed in my April blog post. What is interesting about this requirement is that, while clearly made in response to public commenters’ concerns over the potential invasiveness of these species, EPA has cast the decision in the context of the LCA for these pathways, specifically that these management practices were necessary to prevent these crops from behaving as invasive species which would require remediation activities that may cause additional greenhouse gas emissions, thus possibly causing the pathway to fail to meet the 60% emission reduction threshold.

My opinion is that EPA’s resolution of this issue is appropriate. As I stated in my April blog post, I believe the correct approach to the use of invasive species is not to ban them outright, but to require that they be grown and cultivated in accordance with best practices to monitor and prevent possible invasive behavior: practices which already exist or are being developed by appropriate experts. I noted in April that in many cases, the use of such species would begin at small scale, and would gradually be phased into larger-scale cultivation, so that any potential problems could be identified and remediated before the species is used at larger scale. It is too soon to know the reaction to EPA’s decision from the environmental community or others who have expressed concerns over the use of invasive species, and it is of course too soon to know how workable the registration, recordkeeping and reporting requirements will be, and whether or not they pose an undue burden on growers or fuel producers. But EPA’s action seems to be a prudent resolution of the situation, at least for the present, with the understanding that the rule’s requirements can always be revised in the future based on early experiences with these crops.

The prepublication version of the Final Rule can be found on EPA’s website. The Rule has been made effective as of its prepublication date of June 28, 2013, even though it has not yet appeared in the Federal Register.

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.