Renewable fuel advocates are fuming after the Environmental Protection Agency confirmed Thursday it is considering 52 new pending small refinery exemptions that date as far back as 2011.
Biofuel groups argue so-called “gap-filings” are circumventing a 10th Circuit Court of Appeals ruling from January.
“This absurd maneuver is a blatant attempt to dodge the law at the expense of rural communities,” Growth Energy CEO Emily Skor said in a statement. “EPA’s dashboard confirms that the refiners hope to rewrite years of history.”
Geoff Cooper, president and CEO of the Renewable Fuels Association, strongly urged EPA deny the petitions.
“Just when we thought we’d seen everything; the refiners have come up with another new scam to undermine the RFS,” he said. “This ‘gap year’ waiver ploy is as surreal as it is appalling, and certainly the courts would frown upon EPA flouting another unequivocal decision.”
In January, a federal court ruling on a lawsuit filed by RFA, the National Corn Growers Association, National Farmers Union, and American Coalition for Ethanol found EPA had overstepped authority by granting waivers to refiners that were not continuous exemptions.
The court said EPA cannot “extend” exemptions to any small refineries whose earlier, temporary exemptions had lapsed. This was the case for a Cheyenne, Wyo., refinery that had an SRE in 2012 but did not apply for an extension in 2013 or 2014.
Kurt Kovarik, National Biodiesel Board’s vice president of federal affairs, said allowing these gap filings renders the program completely unpredictable for renewable fuel producers.
“Make no mistake — this handout to the oil industry comes at the expense of biodiesel producers and soybean farmers across the country, and particularly the Midwest,” Kovarik noted.
An American Fuel and Petrochemical Manufacturers spokesperson said AFPM has no insight into SRE filings of individual members but said the law is clear that refiners can apply for RFS hardship relief at any time.
The group argues there are two 10th Circuit cases that apply: The most recent January ruling that addresses continuity, and an earlier Sinclair ruling that found EPA had wrongly denied waivers to qualified facilities in the past.
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The refiners said until the court overruled the agency’s decisions and incorrect application of a viability threshold, it’s reasonable to conclude that qualified facilities may not have sought or may have even been denied the exemptions for which they were eligible noting the facilities “shouldn’t be forever disqualified” from SRE eligibility and the law provides them the ability to seek exemptions “at any time.”
“Facilities have every right under the law to try to correct this with EPA — especially given the biofuel industry’s push to circumvent Congress’s intent and make future SRE eligibility dependent on a facility’s ‘continuous’ receipt of a waiver,” the AFPM spokesperson noted, further adding if continuity were breached because of EPA’s earlier misinterpretation, it would be wrong for the agency not to rectify an error for qualifying facilities.
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