EPA issues documents discussing periodic reviews of the RFS

By Erin Voegele | December 05, 2017

On Nov. 30, the U.S. EPA published documents describing its interpretation of statutory requirements to conduct periodic reviews of certain aspects of the Renewable Fuel Standard and prior actions the agency has taken to fulfill its obligations to conduct these reviews. The statutory review requirements addressed by the EPA are those found under Section 211(o)(11) of the Clean Air Act.

Within the documents, the EPA explains that the CAA language requiring periodic reviews of the RFS “is ambiguous in many respects, and provides EPA significant discretion to determine how and when the periodic reviews will be conducted and made available to the public.”

The agency notes that the statute does not provide direction on the extent of the required reviews, such as qualitative versus quantitative, or the format in which the reviews should be publicized. “The statute merely directs EPA to conduct ‘review,’ a broad and open-ended activity which requires the exercise of agency judgement,” the EPA said.

According to the EPA, the statute does not require the issuance of any specific and discrete agency document or action, and does not specify the precise timing or frequency with which the EPA must complete the reviews.

The agency stresses that it has conducted periodic reviews on existing technologies, the feasibility of achieving compliance with the requirements of the RFS, and the impacts of the RFS requirement. “In past years, we have conducted such periodic reviews, and made them publicly available through rulemakings published in the Federal Register and in supporting documents, as well as through non-rulemaking actions associated with the RFS program. Notwithstanding that we have not until today explicitly labeled those as ‘periodic reviews,’ they nevertheless satisfy the requirements of 211(o)(11),” the agency said in the notice documents.

The EPA explains that it has conducted periodic reviews of existing technologies in several contexts, including RFS1 final rulemaking, RFS2 final rulemaking, and in subsequent rulemakings, including those in which the agency set annual standards. Technologies have also been reviewed and considered in non-rulemaking contexts, including pathway petitions.

Periodic reviews of the feasibility of achieving compliance with the requirements of the RFS program have been primarily completed in the context of rulemakings to set annual standards.

In addition, the EPA said it has conducted reviews focused on the impacts of RFS volume targets on certain regulated entities, including refineries, blenders, distributors, importers, and on consumers. EPA indicated these reviews have taken place within the context of rulemaking activities, and as part of its actions to evaluate and respond to waiver requests. These factors were also reviewed as part of the agency’s effort to respond to several petitions to reconsider or modify the RFS point of obligation.

Additional information is available on the EPA website