Notice2024-06375
Notice of Denial of Petition for Partial Waiver of 2023 Cellulosic Biofuel Standard Under the Renewable Fuel Standard Program
Primary source
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Published
March 26, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is providing notice of its final action entitled Denial of AFPM Petition for Partial Waiver of 2023 Cellulosic Biofuel Standard ("AFPM Petition Denial Action"), in which EPA denied a petition from the American Fuel & Petrochemical Manufacturers (AFPM) for a partial waiver of the 2023 cellulosic biofuel standard under the Renewable Fuel Standard (RFS) program. EPA is providing this notice for public awareness of, and the basis for, EPA's decision issued on March 15, 2024.
Full Text
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<title>Federal Register, Volume 89 Issue 59 (Tuesday, March 26, 2024)</title>
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[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Notices]
[Pages 20961-20962]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06375]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-11849-01-OAR]
Notice of Denial of Petition for Partial Waiver of 2023
Cellulosic Biofuel Standard Under the Renewable Fuel Standard Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Denial of petition.
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SUMMARY: The Environmental Protection Agency (EPA) is providing notice
of its final action entitled Denial of AFPM Petition for Partial Waiver
of 2023 Cellulosic Biofuel Standard (``AFPM Petition Denial Action''),
in which EPA
[[Page 20962]]
denied a petition from the American Fuel & Petrochemical Manufacturers
(AFPM) for a partial waiver of the 2023 cellulosic biofuel standard
under the Renewable Fuel Standard (RFS) program. EPA is providing this
notice for public awareness of, and the basis for, EPA's decision
issued on March 15, 2024.
DATES: March 26, 2024.
FOR FURTHER INFORMATION CONTACT: Lauren Michaels, Office of
Transportation and Air Quality, Compliance Division, Environmental
Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105;
telephone number: (734) 214-4640; email address:
<a href="/cdn-cgi/l/email-protection#503d39333831353c237e3c312522353e103520317e373f26"><span class="__cf_email__" data-cfemail="620f0b010a03070e114c0e031710070c220712034c050d14">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Clean Air Act (CAA) provides that EPA, in consultation with the
Secretary of Agriculture and the Secretary of Energy, may waive the
volume requirements under the RFS program, in whole or in part, under
specified circumstances, including when EPA finds that ``there is an
inadequate domestic supply'' or that the RFS volume requirements
``would severely harm the economy or environment of a State, a region,
or the United States'' (``severe economic harm'').\1\ Section
211(o)(7)(A) is structured to allow any person subject to the
requirements of the RFS program to petition EPA to waive, in whole or
in part, the volume requirements.
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\1\ EPA refers to the authority in CAA section 211(o)(7)(A) as
the ``general waiver authority.''
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On December 22, 2023, AFPM requested that EPA issue a partial
waiver of the 2023 cellulosic biofuel standard under CAA section
211(o)(7)(D) and CAA section 211(o)(7)(A)(i).\2\ On March 4, 2024, AFPM
submitted an update to its original petition.\3\
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\2\ AFPM, ``Petition for Partial Waiver of 2023 Cellulosic
Biofuel Volumetric Requirements,'' December 22, 2023 (``AFPM
Petition'').
\3\ AFPM, ``AFPM's Petition for Partial Waiver of the 2023
Cellulosic Biofuel Volumetric Requirements--Update,'' March 4, 2024.
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II. Decision
Our assessment of the volume of 2023 cellulosic RINs and 2022
cellulosic carryover RINs indicates that obligated parties will be able
to readily comply with the existing 2023 cellulosic biofuel standard.
Moreover, obligated parties will still be able to comply by carrying a
cellulosic RIN deficit into 2024, if necessary. On the other hand, a
partial waiver of the 2023 cellulosic biofuel standard would be
injurious to the RFS program because it would be disruptive to program
participants and could result in reduced future demand for cellulosic
biofuel production. For these and all other reasons described in the
AFPM Petition Denial Action, and after consultation with the Secretary
of Agriculture and the Secretary of Energy under CAA section
211(o)(7)(A), the RFS program is best served by maintaining the
existing 2023 cellulosic biofuel standard and we are denying the AFPM
Petition.
III. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed only in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``any other nationally applicable. . .final action taken by the
Administrator,'' or (ii) when a final action is locally or regionally
applicable but ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' The
CAA reserves to EPA the complete discretion to decide whether to invoke
the exception in (ii) described in the preceding sentence.\4\
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\4\ Sierra Club v. EPA, 47 F.4th 738, 745 (D.C. Cir. 2022)
(``EPA's decision whether to make and publish a finding of
nationwide scope or effect is committed to the agency's discretion
and thus is unreviewable''); Texas v. EPA, 983 F.3d 826, 834-35 (5th
Cir. 2020).
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This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). Whether an action is ``nationally
applicable'' is a narrow inquiry based only on the ``face'' of the
action.\5\ The question is whether the action itself is nationally
applicable, not whether the nature and scope of the arguments raised or
relief sought by a petitioner challenging the action are nationally
applicable.\6\ On its face, this final action is nationally applicable
because it denies a petition to waive a portion of the nationally
applicable 2023 cellulosic biofuel standard promulgated in the Set Rule
for all parties who qualify as obligated parties \7\ and thus are
subject to the requirements of the RFS program no matter their location
across the country. Parties that have registered with EPA as obligated
parties under the RFS program are located in all states except Alaska,
which is not subject to the RFS program.\8\ In denying this petition,
EPA applied a consistent interpretation of the relevant CAA provisions
and the Agency's ``common, nationwide analytical method'' for
evaluating the fuels available, the fuels market data, and the RIN data
to determine whether a partial waiver is necessary to enable compliance
with the 2023 cellulosic biofuel standard.\9\ This final action applies
equally to all obligated parties.
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\5\ Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir.
2015); Hunt Refining Co. v. EPA, 90 F.4th 1107, 1110 (11th Cir.
2024) (``Hunt'').
\6\ S. Ill. Power Coop. v. EPA, 863 F.3d 666, 670-71 (7th Cir.
2017); ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1198-1199 (10th
Cir. 2011); RMS of Ga., LLC v. EPA, 64 F.4th 1368, 1372-1373 (11th
Cir. 2023); Hunt, 90 F.4th at 1110-1112.
\7\ 40 CFR 80.2 (``obligated party''), 80.1406.
\8\ CAA section 211(o)(2)(A)(i); 40 CFR 80.1407(f)(3).
\9\ S. Ill. Power, 863 F.3d at 671; ATK Launch Sys.,651 F.3d at
1197; Hunt, 90 F.4th at 1112; Oklahoma v. EPA, ---; F.4th ---, 2024
WL 799356 at *3 (10th Cir. Feb. 27, 2024).
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For these reasons, this final action is nationally applicable.
Under CAA section 307(b)(1), petitions for judicial review of this
action must be filed in the United States Court of Appeals for the
District of Columbia Circuit by May 28, 2024.
Joseph Goffman,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2024-06375 Filed 3-25-24; 8:45 am]
BILLING CODE 6560-50-P
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