Recap of New Pathways Added to the Renewable Fuel Standard in 2013

This is the week that public comments are due on EPA’s controversial proposed rule that would scale back certain of the 2014 volume mandates under the Renewable Fuel Standard, which I’ve more fully described in a post on Biofuel Policy Watch. EPA has (rightly) taken a lot of flak from the biofuels industry for rolling back the target volumes for cellulosic and advanced biofuels and the overall target for all renewable fuels, and we’ll see in the coming weeks whether the torrent of negative comments EPA will no doubt receive will have any impact on the final 2014 volume mandates. At any rate, I felt it would be good to take a “time out” from all the criticism over EPA’s 2014 proposal to look back at other EPA actions under the RFS in the past year, which have generally been more favorable to the industry and which have also significantly expanded the scope of the program.

I’d like to focus primarily on EPA’s rulemaking activities relating to new fuel pathways. As I described in a post last year, the original legislation that established the RFS set up the four broad categories of renewable fuels (renewable fuels, advanced biofuels, cellulosic biofuels, and biomass-based diesel), and EPA’s implementing regulations specified certain fuels and feedstock production pathways that were originally qualified for inclusion within these categories. The regulations further provided that fuel pathways not included within the original rule would need to be reviewed and approved by EPA to be considered as renewable fuels under the RFS. New pathways can be added to the regulations as generic pathways, applicable to any manufacturer using a specified feedstock as long as the specified conditions are met. These actions usually arise as a result of reviews initiated by EPA staff and are accomplished through formal rulemaking procedures. Other pathways are added in response to petitions submitted by a manufacturer, and approval of such pathways may be more narrowly applicable to the submitter’s proprietary pathway. Last year’s post described the petition process in more detail, with additional information on the process available on EPA’s website.

EPA’s RFS website contains a great deal of information on the RFS program and specifically on the approved pathways and those that are currently under review. Specifically, the complete list of all the approved pathways can be found on this page on the EPA website. This page includes the list of pathways that appears in the formal RFS regulations in Table 1 within 40 CFR Part 80.1426, and also includes a list of company-specific pathways that have been approved.

The most notable 2013 rulemaking actions adding generic pathways to the list in Part 80.1426 are the following:

• In February 2013, EPA issued a final rule creating pathways for biofuels produced from camelina oil and energy cane, as well as renewable gasoline and renewable gasoline blendstock made from certain qualifying feedstocks such as crop residue, pre-commercial thinnings, and separated components of certain waste materials.
• In June 2013, EPA approved new pathways for the production of renewable fuel from giant reed (Arundo donax) and napier grass (Pennisetum purpureum) as feedstocks for cellulosic biofuel. As I described in a blog post last year, these approvals included specific requirements for management techniques for the growth of these crops, which have the potential to behave as invasive species.
• In September 2013, the agency issued a final rule that expanded the definition of the heating oils that would qualify for generation of Renewable Identification Numbers (RINs) under the RFS, an action taken in response to industry comments that the definitions in the original legislation were too narrow.

Also on this page on the EPA website is a listing of the manufacturer-specific petitions that have been approved. My January 2013 post included a chart listing those pathways that had been approved through the end of 2012. To update that listing, the following are the new pathways that EPA approved in 2013 – although all of these represent manufacturer-filed petitions, some of these correspond to the new generic pathways described above.

Company	Fuel	Feedstock	Determination
Marquis Renewable Energy-Wisconsin	Ethanol	Corn Starch	Approved, November 2013
Valero Fort Dodge	Ethanol	Corn Starch	Approved, November 2013
Guardian Energy	Ethanol	Corn Starch	Approved, November 2013
Diamond Green Diesel, LLC	Naphtha, LPG	Non-food grade corn oil	Approved, October2013
Valero Welcome	Ethanol	Corn Starch	Approved, July 2013
Hankinson Renewable Energy, LLC	Ethanol	Corn Starch	Approved, July 2013
Chemtex Group	Cellulosic Biofuel	New (Arundo donax)	Approved, July 2013
BP Biofuels North America, LLC	Ethanol, cellulosic diesel, jet fuel and heating oil; naphtha	Energy cane and Napier grass	Approved, March 2013
Kior, Inc.	Renewable gasoline and renewable gasoline blendstock	Cellulosic biomass**	Approved, March 2013
Sundrop Fuels, Inc.	Renewable gasoline and renewable gasoline blendstock	Cellulosic biomass**	Approved, March 2013
Terrabon, Inc.	Renewable gasoline and renewable gasoline blendstock	Cellulosic biomass**	Approved, March 2013
Sustainable Oils	Biodiesel, renewable diesel, jet fuel, heating oil, naphtha, LPG	Camelina sativa oil	Approved, March 2013
Dakota Spirit AgEnergy, LLC	Ethanol	Corn starch	Approved, February 2013
Absolute Energy, LLC	Ethanol	Corn starch	Approved, February 2013
Western Plains	Ethanol	Grain sorghum	Approved, January 2013

**In these approvals, the term “cellulosic biomass” includes biomass from crop residue, slash, pre-commercial thinnings, tree residue, annual cover crops; cellulosic components of separated yard waste; cellulosic components of separated food waste; and cellulosic components of separated municipal solid waste.

As you can see, EPA approved 15 petitions during calendar year 2013, bringing the overall total approvals to 22, although it should be noted that in some cases groups of two or more individual petitions were likely reviewed as a unit due to commonalities in the pathways, or as part of EPA’s development of a generic pathway. Nevertheless, this is still reasonably good productivity for an agency that has come under fire for its backlog of petition reviews, over and above the criticism over the scaled-back 2014 volume mandates.

In a post last summer, I commented on a study from the University of Illinois Energy Biosciences Institute that analyzed EPA’s response time for new RFS petition reviews, and which found that overall, EPA’s average review time for all approved and pending petitions was 500 days, and that the ten petitions successful as of the time of their analysis had an average wait time of 290 days. I haven’t attempted to try to recalculate any of the figures in the Illinois study to see if review times had changed at all, but it seems to me that EPA is moving a bit faster in processing pathway petitions. On the other hand, as of today the EPA website lists 34 petitions still undergoing or awaiting review at the agency, so a substantial backlog still remains. It’s not clear to what extent these delays in approving pathways are affecting the petitioning companies, because in my experience I know that EPA staff encourages companies to submit petitions as early as possible; and companies can’t be fully approved to issue RINs until their first production facilities are operational and are registered with EPA under the RFS regulations. While I’m sure there are several among the 34 pending petitions whose ability to issue RINs is being held up by EPA’s backlog, it may be that many of the companies having pending petitions are earlier in the development process and are not being unduly disadvantaged by the delays. Here’s hoping that EPA is able to continue to work through this backlog, so that more and more companies and pathways are qualified for the issuance of RINs to help meet the annual volume obligations under the RFS.

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. 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 any other organization with which Dr. Glass is affiliated. Please visit our other blog, Biofuel Policy Watch.

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