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GAO Recommends EPA and DOE Improve Decision-Making in Small Refinery Exemption Program

The U.S. Government Accountability Office (GAO) published a report on November 3, 2022, entitled Renewable Fuel Standard: Actions Needed to Improve Decision-Making in the Small Refinery Exemption Program. The Renewable Fuel Standard (RFS) requires that gasoline and diesel fuels be blended with a minimum volume of renewable fuel. Small refineries can petition the U.S. Environmental Protection Agency (EPA) annually for an exemption from their RFS obligations based on disproportionate economic hardship. EPA must evaluate small refinery exemption petitions in consultation with the Department of Energy (DOE). Congressional requesters asked GAO to review issues related to EPA’s and DOE’s implementation of the small refinery exemption program. GAO examined the information, policies, and procedures EPA and DOE use to make decisions about exemptions and the extent to which exemption decisions are timely. GAO analyzed data and documents related to exemptions from 2013 through 2021 and interviewed agency officials and industry stakeholders. 

According to GAO, EPA does not have assurance that its decisions about small refinery exemptions under the RFS are based on valid information. In addition, EPA and DOE do not have policies and procedures specifying how they are to consult about and make exemption decisions.

  • Information. Small refinery exemption decisions for compliance years 2019 through 2021 were based on an EPA conclusion that small refineries do not experience disproportionate economic hardship from the RFS. GAO states that this conclusion relies on a potentially flawed assumption -- that all parties pay and receive one price for the tradable credits used to demonstrate compliance with the RFS. GAO found that EPA has not analyzed whether this assumption is valid. GAO’s analysis showed that small refineries have paid more on average for compliance credits than have large refineries. Without reassessing its conclusion, EPA does not have assurance that its small refinery exemption decisions are based on valid information.

  • Policies and procedures. According to GAO, EPA has generally documented its decisions. EPA has no policies or procedures for how it assesses petitions and makes exemption decisions, however. Similarly, DOE does not have policies or procedures for how it provides consultation to EPA. GAO states that administration of the program has been inconsistent, and the number of exemptions granted and denied has varied from year to year. Consequently, agency decisions appear ad hoc, resulting in market uncertainty. This can harm small refineries and renewable fuel producers by undermining their ability to plan for infrastructure upgrades and renewable fuel demand.

GAO states that EPA has routinely missed the 90-day statutory deadline for issuing exemption decisions and does not have procedures to ensure that it meets these deadlines. In five of the nine years GAO analyzed, EPA took more than 200 days to issue a decision for more than half of the petitions submitted. According to GAO, these late decisions diminish the benefit of exemptions, create market uncertainty, discourage investment, and undermine the design of the RFS more broadly. 

GAO made seven recommendations, including that EPA reassess its conclusion that all small refineries recover their RFS compliance costs in the price of the gasoline and diesel they sell; that DOE and EPA develop documented policies and procedures for making small refinery exemption decisions; and that EPA develop procedures to ensure that it meets deadlines. DOE agreed with GAO’s recommendations. EPA disagreed with one recommendation and partially agreed with the others. GAO “maintains that the recommendations are valid.”

©2023 Bergeson & Campbell, P.C.National Law Review, Volume XII, Number 321
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About this Author

Lynn Bergeson, Campbell PC, Toxic Substances Control Act Attorney, federal insecticide lawyer, industrial biotechnology legal counsel, Food Drug Administration law
Managing Partner

Lynn L. Bergeson has earned an international reputation for her deep and expansive understanding of the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and especially how these regulatory programs pertain to nanotechnology, industrial biotechnology, synthetic biology, and other emerging transformative technologies. Her knowledge of and involvement in the policy process allows her to develop client-focused strategies whether...

202-557-3801
Carla Hutto, Bergeson Campbell PC environmental law regulatory analyst,Toxic Substances Control Act law attorney
Regulatory Analyst

Since 1996, Carla Hutton has monitored, researched, and written about regulatory and legislative issues that may potentially affect Bergeson & Campbell, P.C. (B&C®) clients. She is responsible for creating a number of monthly and quarterly regulatory updates for B&C's clients, as well as other documents, such as chemical-specific global assessments of regulatory developments and trends. She authors memoranda for B&C clients on regulatory and legislative developments, providing information that is focused, timely and applicable to client...

202-557-3809
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