Periodic Reviews for the Renewable Fuel Standard Program


Periodic Reviews for the Renewable
Fuel Standard Program

£%	United States
Environmental Protect
Agency

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Periodic Reviews for the Renewable
Fuel Standard Program
Assessment and Standards Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
kl	Agency
EPA-420-S-17-002
November 2017

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Periodic Reviews for the Renewable Fuel Standard Program
Under Section 21 l(o)(l 1) of the Clean Air Act, EPA is required to conduct certain
periodic reviews. The paragraph provides that:
To allow for the appropriate adjustment of the requirements described in
subparagraph (B) of paragraph (2), the Administrator shall conduct periodic
reviews of—
(A)	existing technologies;
(B)	the feasibility of achieving compliance with the requirements; and
(C)the	impacts of the requirements described in subsection (a)(2) on each
individual and entity described in paragraph (2).
This document explains our interpretation of this paragraph and describes how we have
fulfilled it. Section I explains our interpretation of the statutory text, including both ambiguities
and unintelligible aspects of Subparagraph (C). Section II describes our fulfillment of the
obligation to conduct periodic reviews notwithstanding the interpretive issues, and the contexts
in which we have used the results of those periodic reviews.
I. Legal Interpretation of CAA 211(o)(ll)
A. Introductory Text
The language in the introductory text of 21 l(o)(l 1) 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. For one, the statute does not provide direction on the
extent of the required reviews (e.g. qualitative versus quantitative), or the format in which
periodic reviews must be publicized (e.g. standalone reports versus assessments done in the
context of other actions, such as setting annual RFS standards or responding to petitions for
rulemaking). The statute merely directs EPA to conduct "reviews," a broad and open-ended
activity which requires the exercise of agency judgment. See review, Black's Law Dictionary
1514 (10th ed. 2014) (defining "review" as "[c] on si deration, inspection, or reexamination of a
subject or thing"). Further, it is reasonable to interpret the scope of the review in light of the
scope of EPA's actions in making "appropriate adjustment" of the relevant RFS requirements,
where the word "appropriate" further highlights the significant discretion conferred upon EPA.
See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (explaining that "'appropriate' is the classic
broad and all-encompassing term" and "leaves agencies with flexibility").
In addition, the statute does not require the issuance of any specific and discrete agency
document or action, or for EPA to identify at the time it takes actions that is satisfying the
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periodic review provision. It does not require EPA to issue this document.1 It suffices that EPA
has, on a periodic basis, taken actions with the effect of complying with the provision. See
Murray Energy Corp. v. EPA, 861 F.3d 529, 533 n.l (4th Cir. 2017) (explaining that EPA's
actions could satisfy CAA section 321 even though they were not prepared with the intent of
doing so).
The statute also does not specify the precise timing or frequency with which EPA must
complete the reviews. It sets neither a deadline for the first review, nor time intervals at which
that review must be updated or subsequent reviews completed. Rather, the statute only directs
EPA to conduct "periodic reviews" to "allow for the appropriate adjustment" of the requirements
in Section 21 l(o)(2)(B), indicating that such reviews should occur more than once and facilitate
the "appropriate adjustment" of the relevant requirements.
In addition, the phrase "appropriate adjustment" does not indicate which statutory
adjustment provision it is referring to. There are three provisions in Section 21 l(o) that authorize
the agency to "adjust" some aspect of the RFS program:
•	Section 21 l(o)(3)(C) - Adjustments to percentage standards
•	Section 21 l(o)(4) - Adjustments to greenhouse gas reduction percentages
•	Section 21 l(o)(7)(D)(ii) - Adjustments to cellulosic waiver credit prices for inflation
None of these provisions authorize EPA to adjust the renewable fuel applicable volumes
specified in Section 21 l(o)(2)(B).
On the other hand, the statute, without explicitly using the words "adjust" or
"adjustment," does authorize EPA to use its authorities in Section 21 l(o)(7)(A)-(E) to waive the
applicable volumes in Section 21 l(o)(2)(B) in appropriate circumstances, and to set and reset the
statutory volume targets in Section 21 l(o)(2)(B) in the circumstances described in Section
21 l(o)(2)(B)(ii) and Section 21 l(o)(7)(F) respectively.2 EPA thus interprets the phrase
"appropriate adjustment" to refer to the waiver and reset and set authorities described in
21 l(o)(7) and 21 l(o)(2)(B)(ii). We have not to date adjusted any of the statutory volume targets
under the reset provisions of (o)(7)(F). However, we have used both the set and waiver
provisions to establish standards:
1. We have set the biomass-based diesel volume under 21 l(o)(2)(B)(ii) for 2013 and all
subsequent years.
1	Unlike our annual standards and certain other RFS regulatory actions that do establish legal requirements for
regulated parties, neither our interpretation of the statute nor the description of our studies in this document require
any party or the agency to do (or not do) anything beyond what the statute requires. The underlying studies
themselves also do not impose any such requirements. In addition, our reviews of the RFS program occur on a
continuing basis, and are subject to change in both approach and results. Indeed, we regularly consider new
approaches and update our RFS technical analysis, and we intend to continue doing so. For instance, as described
below, in deciding whether or not to exercise our waiver authorities in RFS annual standards rules, EPA reviews
relevant aspects of the program based on updated data and new technical methods as appropriate.
2	We also note that Section 21 l(o)(8) allowed EPA to waive statutory volume targets in calendar year 2006, but not
in any later year.
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2. We have used the cellulosic waiver authority to reduce the applicable volume for
cellulosic biofuel for every year since 2010, and to reduce the applicable volumes for
advanced biofuel and total renewable fuel for every year since 2014.
3. We have used the general waiver authority, on the basis of a finding of inadequate
domestic supply, to provide a further reduction in the total renewable fuel applicable
volume, beyond that obtained through use of the cellulosic waiver authority, in 2016.3
We have also considered, but denied, a number of petitions since 2007 that have requested that
we exercise the general waiver authority to address alleged severe economic harm or alleged
inadequate domestic supply of cellulosic biofuel. As described in more detail below, we have
conducted the periodic reviews required by 21 l(o)(l 1) in the context of the above decisions, as
well as in other contexts, and the results of the periodic reviews have informed these decisions.4
B. Subparagraph (C)
Subparagraph (C) presents particular interpretive issues due to a cross-reference to a
paragraph that does not exist. As a result, we conclude that Subparagraph (C) is unintelligible
and inoperative. But if we assume this provision is operative, we would construe it as directing
EPA to review the impacts of the RFS volume requirements on refineries, blenders, distributors,
and importers; as well as on consumers of transportation fuel.
1. Unintelligible and Inoperative
Subparagraph (C) directs EPA to consider "the impacts of the requirements described in
subsection (a)(2) of this section on each individual and entity described in paragraph (2)."
However, "subsection (a)(2)," which naturally refers to Section 211(a)(2), does not exist, nor did
it exist at the time when EISA was passed.5 It is impossible for EPA to review the impacts of the
requirements described in a nonexistent provision. The reference to "subsection (a)(2) of this
section" is thus unintelligible, and an "unintelligible text is inoperative." Antonin Scalia&
3 We note that on July 28, 2017, the U.S. Court of Appeals ruled that EPA's consideration of demand-side factors
under the inadequate domestic supply prong of the general waiver authority was improper, and remanded the rule
back to EPA for further consideration. See Americans for Clean Energy v. EPA, 864 F.3d 691 (D.C. Cir. 2017).
EPA will respond to that remand in a separate action.
4 See, e.g., "A Preliminary Assessment of RIN Market Dynamics, RIN Prices, and Their Effects," Dallas
Burkholder, Office of Transportation and Air Quality, US EPA. May 14, 2015, EPA Air Docket EPA-HQ-OAR-
2015-0111; see also "Denial of Petitions for Rulemaking to Change the RFS Point of Obligation," available in
docket EPA-HQ-OAR-2016-0544.
5 Section 211(a), which does exist and authorizes the Administrator to regulate the sale of fuels or fuel additives, is
neither part of the RFS program and nor part of either public law that enacted the RFS. A review of the impacts of
the Administrator's Section 211(a) authority to regulate fuel or fuel additives would not appear to facilitate the
"appropriate adjustment" of the RFS volume requirements or to otherwise further the goal of the RFS program. It
therefore is improbable that Congress mistakenly intended to refer to subsection (a). For this and other reasons
described below, EPA declines to rewrite the statutory reference to "subsection (a)(2)" to refer to "subsection (a)."
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Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 134 (2012);6 accord
EPA v. EMEHomer City Generation, L.P., 134 S. Ct. 1584, 1613 (2014) (Scalia, J., dissenting)
("There are sometimes statutes which no rule or canon of interpretation can make effective or
applicable to the situations of fact which they purport to govern. In such cases the statute must
simply fail." (citing 3 R. Pound, Jurisprudence 493 (1959))).7
EPA recognizes that in some cases agencies may avoid the literal construction of a statute
by applying the scrivener's error doctrine to rewrite an erroneous cross-reference. To do so,
however, requires "an extraordinarily convincing justification," such as where the "cross-
reference[] as written point[s] in one direction, all the other evidence from the statute points the
other way " Appalachian Power Co. v. EPA, 249 F.3d 1032, 1041 (D.C. Cir. 2001). Here, there
is no such extraordinarily convincing justification. Construing the text literally does not
undermine any other statutory provision because no other provision references this text. Cf id. at
1041-43 (applying the scrivener's error doctrine because the literal meaning "makes no sense of'
two other statutory sections). Nor does a literal construction enact a fundamental revision to a
statutory program that "is impossible to accept." Id. at 1042. Indeed, while Section
21 l(o)(l 1)(C) describes periodic reviews that may inform the adjustment of the statutory
applicable volumes, completing the periodic review is not a legal precedent to the exercise of
EPA's authorities to adjust the volumes. See, e.g., Section 21 l(o)(7), (o)(2)(B)(ii). There is also
no obviously correct rewriting of "subsection (a)(2)"; even assuming that it refers to some
statutory requirement of the RFS program, there are numerous such requirements for which EPA
could sensibly analyze the impacts.8 In sum, there is no "overwhelming evidence from the
structure, language, and subject matter" of the statute pointing in a single direction warranting
application of the scrivener's error doctrine. United States Nat'l Bank v. Indep. Ins. Agents of
Am., 508 U.S. 439, 462 (1993).
The legislative history does not compel a different result. As a general matter, while
legislative history may help resolve statutory ambiguities, the history cannot rewrite an
unambiguous statutory provision. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 568 (2005). EPA is unaware of any recent federal case applying the scrivener's error
doctrine based solely on legislative history. Cf. Shannon v. United States, 512 U.S. 573, 584
(1994) ("courts have no authority to enforce [a] principle gleaned solely from legislative history
that has no statutory reference point").
6	This treatise on statutory interpretation is a persuasive authority in the courts. See, e.g., Tex. Dep't of Hous. &
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2539 (2015) (citing the treatise); S.C. Pub. Serv.
Auth. v. FERC, 762 F.3d 41, 61 (D.C. Cir. 2014) (same).
7	See also United States v. Matchett, 837 F.3d 1118, 1128 (11th Cir. 2016) (Pryor, J., statement respecting denial of
rehearing en banc); I ire/ v. Guam Mem'l Hosp. Auth., 726 F.2d 594, 598 (9th Cir. 1984); State exrel. Brnovich v.
City of Tucson, 399 P.3d 663, 685-86 (Ariz. 2017) (Gould J., concurring in part and in the result) (collecting
numerous state law authorities). This result also follows from the canon that when statutory language is
unintelligible without reference to a repealed act, the language is inoperative. See 1A Sutherland Statutory
Construction § 22:3 n.6 (7th ed.) (collecting authorities). Here, the language is a fortiori inoperative because it is
unintelligible without reference to a nonexistent provision.
8	EPA could, for instance, analyze the impacts of the statutory volume targets, Section 21 l(o)(2)(B)(i), the
percentage requirements, Section 21 l(o)(3)(B), the point of obligation, Section 211(o)(3)(B)(ii)(I), the credit
program, Section 21 l(o)(5), the limitations imposed by the definition of renewable biomass, Section 21 l(o)(l)(I),
and so forth.
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But even assuming that in the abstract, unambiguous legislative history could rescue
otherwise unintelligible statutory text, the history here does not avail. While committee reports
are especially valuable, see Zuber v. Allen, 396 U.S. 168, 186 (1969), EPA is unaware of any
committee report language directly addressing this issue. Indeed, the sole relevant legislative
history EPA is aware of is language in an earlier version of the bill that eventually resulted in
Section 21 l(o)(l 1)(C). In that bill, the relevant language (that now refers to "subsection (a)(2)")
referred to earlier versions of the RFS volume requirements. See H.R. 6, 110th Cong. 29 (as
passed by the Senate, June 21, 2007) ("Public Print").9
Arguably, this suggests that we rewrite the "subsection (a)(2)" reference to instead refer
to the RFS volume requirements. But that suggestion is ultimately unacceptable for at least two
independent reasons. First, the applicable volumes contained in those earlier versions are
significantly different from those contained in the version that became law (what is now codified
at CAA section 21 l(o)(2)(B)). For instance, comparing the Public Print and the law as passed,
Congress specified applicable volumes for different years and different types of fuel, with
different numerical values for the same years, and different considerations for EPA to assess in
resetting the volume requirements.10 Thus, were EPA to faithfully implement the text of the
earlier bill, for purposes of the periodic review, the agency would then analyze the impacts of
provisions that did not pass and that are significantly different from the provisions that passed
into law. We do not believe that this would be consistent with Congressional intent as embodied
in the enacted bill.
Second, rewriting Section 21 l(o)(l 1) to refer to the statutory volume target tables that did
pass would likewise be inappropriate. It would require the agency to rewrite an existing law by
splicing in one piece of the earlier, failed bill into the bill that ultimately became EISA, based
solely on the language of that failed bill and no other statutory evidence. EPA declines to take
such a radical step. The agency generally does not rely on failed bills to divine the meaning of
enacted legislation, much less to rewrite enacted legislation. See Caraco Pharmaceutical
Laboratories, Ltd. v. NovoNordiskA/S, 132 S.Ct. 1670, 1686 (2012). EPA's obligation — and
the obligation of reviewing courts — is to apply the text of the statute as it is written, not to
rescue the Congress from its drafting errors. Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004).
For these reasons, EPA construes the statutory reference to "subsection (a)(2)" literally as
written, and therefore finds Section 21 l(o)(l 1)(C) unintelligible and inoperative.
2. Impacts of the RFS Volume Requirements on Refineries, Blenders, Distributors,
and Importers; as well as on Consumers of Transportation Fuel
As noted above, the cross-reference to paragraph (a)(2) does not exist. Notwithstanding
this textual difficulty, EPA recognizes the canon of construction that presumes giving effect to
every statutory provision. See, e.g., Bennett v. Spear, 520 U.S. 154, 173 (1997) ("It is the
9	Later versions of the bill, like the final law, refer to a nonexistent provision. See H.R. 6, 110th Cong. 29 (as passed
by the House, Dec. 6, 2007); id. (as passed by the Senate, Dec. 13, 2007).
10	Compare Public Print 14-15, with Section 21 l(o)(2)(B)(i)-(iv).
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cardinal principle of statutory construction that it is our duty to give effect, if possible, to every
clause and word of a statute... "). On balance, EPA believes that this canon is outweighed by the
other canons described above, so that the plain meaning of Section 21 l(o)(l 1)(C) is a nullity. See
Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (individual "canons are not
mandatory rules" but rather "are guides that need not be conclusive"). Nonetheless, should our
legal premise be faulty, we also consider what meaning we would give to Section 21 l(o)(l 1)(C)
were it operative. Cf. United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) ("Where a
statute grants an agency discretion but the agency erroneously believes it is bound to a specific
decision, we can't uphold the result as an exercise of the discretion that the agency disavows,
(citing Prill v. NLRB, 755 F.2d 941, 947-48 (D.C. Cir. 1985))).
Thus, assuming that this provision is operative, EPA would construe Subparagraph (C) as
directing EPA to review the impacts of the RFS volume requirements on refineries, blenders,
distributors, and importers; as well as on consumers of transportation fuel. That is, we would
construe "the requirements described in subsection (a)(2)" as referring to the volume
requirements in CAA 21 l(o)(2)(B). And we would construe "each individual and entity
described in paragraph (2)" to mean "refineries, blenders, distributors, and importers," CAA
21 l(o)(2)(A)(iii)(I), and consumers of transportation fuel, CAA 21 l(o)(2)(B)(ii)(V); cf. also
CAA 21 l(o)(2)(A)(iv).
We begin with our construction of "the requirements described in subsection (a)(2)."
Assuming for purposes of this construction only that the cross-reference is operative, the
unintelligible statutory text still does not and cannot plainly address which requirements EPA is
supposed to assess. This ambiguity allows EPA to adopt any reasonable construction. We
reasonably construe it to refer to the volume requirements in CAA 21 l(o)(2)(B). Our reading is
supported by the context and structure of the statute. The context indicates that the purpose of the
periodic review is "[t]o allow for the appropriate adjustment of the requirements described in
subparagraph (B) of paragraph (2)," that is the volume requirements described in CAA
21 l(o)(2)(B). To allow for the appropriate adjustment of the volume requirements, it is
obviously reasonable to assess the impacts of those same requirements. For similar reasons, this
reading is also reasonable in light of the overall statutory structure. Congress gave EPA authority
to waive and reset the statutory volume targets, as well as to set the applicable volumes in years
for which the statute the statute only specifies a minimum volume (for biomass-based diesel,
BBD) or does not specify any volume at all . See CAA 21 l(o)(7), (o)(2)(B)(ii). To inform the
exercise of these authorities in deciding whether and to what extent to adjust the statutory
volumes, it is reasonable to consider the impacts of the same volumes.
These reasons suffice to warrant our reading of Subparagraph (C) of paragraph
21 l(o)(l 1). In addition, we note that our reading is consistent with the legislative history
described above — indicating that in a prior version of the bill that became EISA, this cross-
reference referred to the statutory volume targets included in that bill.
We now construe the reference to "each individual and entity described in paragraph (2)."
We begin by defining "individual" and "entity." "Individual" ordinarily refers to natural persons.
See Mohamad v. Palestinian Auth, 566 U.S. 449 (2012). "Entity" typically "refers to an
organization, rather than an individual" natural person, Samantar v. Yousuf 560 U.S. 305, 315
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(2010), and includes corporations, companies, associations, firms, partnerships, societies, joint
stock companies, and so forth. See Mohamad, 566 U.S. at 454-55. Taken together, these readings
give different meaning to the two different terms ("individual" and "entity"). See Loughrin v.
United States, 134 S.Ct. 2384, 2390 (2014) (noting that every word of the statute should, where
possible, be given some operative effect). They are also well supported by the larger context of
how these terms are used throughout the EISA bill,11 and the larger U.S. Code. See Mohamad,
566 U.S. at 454-55.
The cross-reference to "paragraph (2)" naturally refers to Section 21 l(o)(2).12 This
section includes a list of regulated individuals and entities ("refineries, blenders, distributors, and
importers," CAA 21 l(o)(2)(A)(iii)(I)) as well as consumers of transportation fuel, CAA
21 l(o)(2)(B)(ii)(V); cf. also CAA 21 l(o)(2)(A)(iv). EPA construes the statute to refer to these
individuals and entities. Assessment of the impacts of the RFS volume requirements on
refineries, blenders, distributors, and importers, as well as on consumers of transportation fuel,
may reasonably inform the "appropriate adjustment" of the volume requirements.
We note that CAA 21 l(o)(2) includes stray references to other individuals or entities as
well. Nevertheless, we believe it is implausible that Congress intended EPA to review the
impact of the RFS on every single individual or entity which happens to be described somewhere
in this portion of the U.S. Code. Beyond the individuals and entities described above, the other
references appear nonsensical. For instance, the very first individual or entity to which the statute
refers is the Administrator of the EPA. CAA 21 l(o)(2)(A)(i). Likewise, the paragraph refers to
the Secretary of Energy and the Secretary of Agriculture. CAA 21 l(o)(2)(B)(ii). However, it is
not clear how or why EPA would conduct an analysis of regulatory impacts on the head of this
agency or of other federal departments. Indeed, we are unaware of ever before having done an
analysis of regulatory impacts on an agency head. Nor do we believe that such an impacts
analysis would inform the "appropriate adjustment" of the volume requirements or otherwise
further the intent of Congress.13 Applying this cross-reference as written would therefore appear
nonsensical, and we decline to do so.
11	For example, EISA appears to use these two words with similar meaning in EISA section 203(a)(5) (requiring the
National Academy of Sciences, in conducting a study of RFS impacts, to seek the participation and consider the
input of "individuals and entities interested in issues relating to conservation, the environment, and nutrition"); EISA
section 423 (requiring the government to "carry out public outreach to inform individuals and entities of the
information and services available governmentwide"); EISA section 654 (adding 42 U.S.C. 16396(f)(3), which
describes an eligible "individual or entity" as respectively referring to citizens and legal permanent residents, and
entities incorporated and maintaining a primary place of business in the United States).
12	EPA notes that, in a prior version of the bill that became EISA, this cross-reference referred to an entirely
different list of individuals and entities. See Public Print section 11 l(j)(6)(A)(iii) (referring to Public Print section
11 l(j)(2)). (That list was included as part of the EISA bill, albeit with substantial revisions. The list, however, was
not added in to the CAA as an amendment). We are not aware of any statutory evidence indicating whether
Congress intentionally superseded the reference to the earlier list with the existing reference to CAA 21 l(o)(2). In
any event, since the text of the enacted phrase ("each individual and entity described in paragraph (2)") is at least
partially sensible, the enacted text controls. See Hamer v. Neighborhood Housing Servs., — U.S. No. 16-658, Slip
Op. 7-8 (2017) ("we resist speculating whether Congress acted inadvertently," and rather "presume more modestly
instead that the legislature says what it means and means what it says" (internal formatting omitted)).
13	CAA 21 l(o)(2)(A)(i) also includes the phrase "new facilities that commence construction after the date of
enactment of this sentence [December 19, 2007]," as part of the requirement for EPA to establish regulations to
ensure that transportation fuel contains at least the applicable volumes of renewable fuel. We do not believe that this
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II. Fulfillment of the Obligation to Conduct Periodic Reviews
The following three subsections describe the periodic reviews we have conducted for the
three prongs set forth in CAA 21 l(o)(l 1): existing technologies, the feasibility of achieving
compliance with the requirements, and the impacts of the requirements described in subsection
(a)(2) on each individual and entity described in paragraph (2). 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
these as "periodic reviews," they nevertheless satisfy the requirements of Section 21 l(o)(l 1).
A. Existing Technologies
In compliance with CAA 21 l(o)(l 1)(A), we have conducted periodic reviews of existing
technologies in several contexts. The first was conducted as part of the RFS1 final rulemaking
published on May 1, 2007,14 and a more comprehensive review was conducted as part of the
RFS2 final rulemaking published on March 26, 2010.15 In the RFS2 rulemaking, we reviewed a
full array of technologies throughout the full supply chain system. This review included
technology for producing renewable feedstocks and renewable fuels (Section IV.B of that
rulemaking) and technology for distributing, blending, dispensing, and consuming renewable
fuel (Section IV.C). In subsequent rulemakings, including those in which we set the applicable
annual standards, we reviewed updated and new data on advances in various technologies.16 For
instance, in the rulemaking that established the 2017 annual standards, we reviewed technology
associated with cellulosic biofuel production (Section III.B) and infrastructure to produce and
dispense higher-level ethanol blends (Section V.B.I).17 In 2014, in light of developments in
technology, we approved a pathway for cellulosic biofuel using biogas as a feedstock.18 In a
passing reference can sensibly be understood to impose a requirement for EPA to evaluate the impact of the RFS
volume requirements on these biofuel production facilities (and no others). Had Congress wanted EPA to conduct
periodic reviews for "renewable fuel production facilities," it could easily have used that phrase or a similar phrase
like "biofuel production facilities," particularly in the extensive list of subjects for analysis in section
21 l(o)(2)(B)(ii). Cf. CAA 21 l(o)(2)(B)(ii)(V) (referring to "consumers of transportation fuel"). Moreover, it is not
clear why Congress would want EPA to study the impacts on only the new facilities that commenced construction
after the date of EISA's enactment. The purpose of the periodic reviews is to facilitate EPA's "appropriate
adjustment" of the volume requirements in CAA 21 l(o)(2)(B), but our adjustment occurs on a fuel category basis,
see, e.g., CAA 211 (o)(7)(D) (authorizing EPA to adjust volumes of cellulosic, advanced, and BBD biofuels), and
not according to when facilities were built. Furthermore, the purpose of the statutory distinction between "new
facilities that commence construction after the date of enactment of this sentence" and other facilities was to
establish grandfathering provisions relating to the RFS lifecycle GHG performance thresholds at the start of the
program — not EPA's authority to make subsequent adjustments of volume requirements.
14	72 FR 23900.
15	75 FR 14670. See also the associated Regulatory Impact Analysis (EPA-420-R-10-006, February 2010), Chapter
1.
16	See, e.g., 75 FR 76790, 77 FR 1320, 77 FR 59458, 78 FR 49794, 80 FR 77420.
17	81 FR 89746.
18	79 FR 42128.
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proposed rulemaking to implement other aspects of the RFS program, we have reviewed existing
technologies for producing biointermediates and for generating Renewable Identification
Numbers (RINs) for renewable electricity.19
Finally, we have also reviewed and considered existing technologies in a number of non-
rulemaking contexts. In the context of reviewing petitions for new RIN-generating pathways
submitted through §80.1416 and the Efficient Producer petition process, we have evaluated
numerous technologies for converting renewable biomass into qualifying renewable fuel.20 We
have also reviewed technologies for separating recyclable material from municipal solid waste in
the context of waste separation plans required under §80.1426(f)(5).21
B. Feasibility of Achieving Compliance with the Requirements
In compliance with CAA 21 l(o)(l 1)(B), we have conducted periodic reviews of the
feasibility of achieving compliance with the requirements of the RFS program primarily in the
context of rulemakings which establish the applicable annual standards. For purposes of this
component of the periodic review, EPA has focused on the feasibility of achieving compliance
with the annual percentage standards for the market as a whole, and has provided impacts on
individuals and entities in the next section.
In the RFS2 final rulemaking, we reviewed the feasibility of achieving compliance with
the statutory volume targets for 2010, concluding that meeting the volume target for cellulosic
biofuel was not feasible but that meeting the other three volume targets were feasible (Section
II.E.l.b). In subsequent rulemakings to set the applicable annual standards, we also reviewed the
feasibility of achieving compliance with the statutory volume targets in the context of
determining whether and to what degree to employ the waiver authorities. For instance, in the
rulemaking to set the 2012 standards we again concluded that the statutory volume target for
cellulosic biofuel was not feasible, but that there was no need to waive the advanced biofuel or
total renewable fuel standards because those standards could be met (Section II.B).22 In the
rulemaking to set the 2013 standards, we evaluated whether the total renewable fuel and
advanced biofuel standards could be met, and concluded that compliance could be achieved
through the use of carryover RINs.23
However, in the rulemakings setting the applicable standards for 2014-2016, 2017, and
2018, we concluded that none of the statutory volume targets for cellulosic biofuel, advanced
biofuel, and total renewable fuels were feasible based on a review of existing production and
distribution technologies and infrastructure.24 In the context of the 2018 final rule, we evaluated
all of the waiver authorities provided in 21 l(o)(7) to determine whether additional reductions
19	81 FR 80828.
20	"Completed pathway assessments," available in docket EPA-HQ-OAR-2017-0627.
21	See, e.g., "Decision Document - Approval of Fiberight Municipal Solid Waste Separation Plan," June 2012.
Available in docket EPA-HQ-OAR-2017-0627.
22	77 FR 1320; see also 75 FR 76790 (annual rule establishing the 2011 standards).
23	78 FR 49794.
24	80 FR 77420, 81 FR 89746.
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were justified beyond those achieved using the cellulosic waiver authority. The waiver
authorities are designed to address different elements of feasibility, including supply, economic
or environmental harm, and significant price increases for BBD. EPA concluded that waiver of
the volume requirements beyond reductions under the cellulosic waiver authority were not
warranted.25
Our reviews of the feasibility of achieving compliance with the requirements of the RFS
program in these rulemakings have typically included considerations of such factors as the
availability of qualifying feedstocks and the potential for feedstock switching, domestic
renewable fuel production capacity, potential for imports of renewable fuel, an assessment of the
E10 blendwall and opportunities for use of higher ethanol blends such as E15 and E85, the size
and utility of the carryover RIN bank, and costs. EPA also evaluates the feasibility of achieving
compliance with the requirements of the RFS program in setting the BBD standards for years
after 2012. CAA 21 l(o)(2)(B)(ii) directs that EPA shall set the standards based on a review of
implementation of the program and consideration of a number of factors, including the expected
rate of production of renewable fuels, and the sufficiency of infrastructure to deliver and use
renewable fuel. EPA has done this evaluation to establish the BBD standards for 2013-2019.26
EPA has also evaluated the feasibility of achieving compliance with the requirements of
the RFS program in the context of requests for waivers of the statutory volume targets under
CAA 21 l(o)(7). EPA received and responded to a request from the Governor of Texas to waive
the 2008 and 2009 standards, which EPA evaluated and found was not warranted.27 EPA
received and responded to requests to waive the RFS standards in 2012 from the Governors of
several states.28 EPA also received requests for waivers of the 2014 standard and evaluated these
requests, finding that to the extent that EPA's own action in waiving the volumes satisfies the
requests, they were moot, and denying the request for any additional reductions.29 EPA has
received and responded to requests to waive the RFS standards as recently as January of 2017 for
the 2016 cellulosic biofuel standard.30
Based on these considerations and our assessment of the feasibility of achieving
compliance with the requirements of the RFS program, we have fulfilled the requirement to
conduct a periodic review consistent with subparagraph (B) of 21 l(o)(l 1).
C. Impacts of the Volume Targets on Refineries, Blenders, Distributors and
Importers; and Consumers of Transportation Fuel
25	See "Renewable Fuel Standards Program: Standards for 2018 and Biomass-Based Diesel Volume for 2019,"
available at Docket ID No. EPA-HQ-OAR-2017-0091.
26	See 75 FR 76790, 77 FR 1320, 77 FR 59458, 78 FR 49794, 80 FR 77420.
27	73 FR 47168.
28	See 77 FR 70752.
29	80 FR 77420, 77429.
30	Denial of AFPM Petition for Waiver of 2016 Cellulosic Biofuel Standard, January 17, 2017, available at:
https://www.epa.gov/sites/production/files/2017-01/documents/afipm-rfs-petition-decision-ltr-2017-01-17.pdf. EPA
has also received a waiver request from Pennsylvania (November 2, 2017) to which EPA will respond in a separate
action.
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Because the statutory language of Subparagraph (C) is unintelligible, it is inoperative.
But if we assume the provision is operative as described in Section I.B.2 above, we would
construe the statute as directing EPA to review the impacts of the RFS volume targets in CAA
211(o)(2) on certain regulated entities (specifically refineries, blenders, distributors, and
importers) and consumers of transportation fuel. In this context, actions on several fronts fulfill
the obligation to conduct periodic reviews in compliance Subparagraph (C) of 21 l(o)(l 1).
In the 2010 rulemaking which instituted the RFS2 program, we evaluated the impacts of
the program on regulated small entities in the context of the small producer exemption (Section
III.C) and exemptions for small refineries and small refiners (Section III.E). We also conducted
an analysis of small entities that may be subject to the RFS2 program and presented the analysis
in a Report of the Small Business Advocacy Review Panel.31 In addition, we evaluated the
impacts of the program on all regulated entities in the context of the 20% RIN rollover cap
(Section III.D), in establishing Information Collection Requests, and in evaluating impacts on
consumers of transportation fuel through our assessment of costs (Section VII).32
Under CAA section 21 l(o)(9), small refineries may, on a case-by-case basis, petition
EPA for an extension of their exemption beyond the December 31, 2010 automatic exemption
provided by the statute. EPA may approve such petitions if it finds that "disproportionate
economic hardship" exists.33 These evaluations are facility-specific and include considerations
of each facility's unique structural and economic circumstances in light of the specific standards
from which they are seeking an exemption.
In 2012 we received a waiver request from several States. In the context of evaluating
and responding to that request, we evaluated impacts of the program on ethanol production and
use, feed prices, and fuel prices.34 Implicit in this evaluation were impacts on refiners and
importers of petroleum fuels, blenders, fuel distributers, ethanol producers, farmers, and
consumers.
The annual rulemakings that establish the applicable standards for each compliance year
have included an evaluation of the impacts on regulated parties of those standards in the context
of our assessment of whether the standards are feasible and appropriate. These evaluations have
included the ability of refineries to blend ethanol into their gasoline or, in lieu of such blending,
purchase RINs on the open RIN market.35 These rulemakings have also included an evaluation
of impacts on consumers of transportation fuel in the estimation of illustrative costs of the
31	Available in the docket EPA-HQ-OAR-2005-0161.
32	Beyond impacts on refineries, blenders, distributors and importers, we also evaluated the impacts on renewable
fuel production facilities in the context of the ethanol production facility grandfathering provisions of Section 210 of
the Energy Independence and Security Act of 2007 (Section II.B.3), and conducted an assessment of biofuel
distribution, blending, and dispensing (Sections IV.C and IV.D).
33	At the current time, EPA estimates that there are 38 refineries eligible for RFS small refinery hardship relief. For
2013, EPA evaluated 16 petitions. For 2014, EPA evaluated 12 petitions. For 2015, EPA evaluated 14 petitions. For
2016, EPA evaluated 16 petitions.
34	"Response to 2012 waiver request," available in docket EPA-HQ-OAR-2017-0627.
35	While this is not required by Section 21 l(o)(l 1)(C), we have also evaluated the impacts of the BBD and advanced
biofuel standards on biodiesel producers.
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standards.36 In the rulemakings which established the 2014-2016 standards and the 2017
standards, we evaluated the impact of RIN values on regulated parties to determine whether and
to what degree those values were passed through from producers and importers of renewable fuel
to retail consumers.37 In the annual rulemakings, EPA has also evaluated the impacts of the
standards on small entities.38
Finally, in our response to several petitions to reconsider or initiate a rulemaking to
modify the point of obligation, codified at 40 CFR 80.1405, we evaluated the comparative
impact of the point of obligation on affected parties. Many petitioners suggested that the current
point of obligation was harming merchant and small refiners, as well as other parties such as
small retailers, and that it was unfairly benefiting non-obligated parties who nonetheless blended
and acquired RINs. Before responding to the petitions, EPA closely examined the impact of the
current program on refiners and other market participants, and the impact that could be expected
from moving the "point of obligation." After review and consideration of comments received on
a proposed denial to change the point of obligation, EPA denied these petitions for rulemaking
and reconsideration. EPA found that the current regulations do not appear to disproportionately
harm merchant or small refiners, nor do they harm small retailers or provide windfall profits to
unobligated blenders. Additionally, EPA found that the current "point of obligation" is
appropriate, and that changes proposed by petitioners could result in significant disruption in the
fuels marketplace and would be unlikely to result in additional renewable fuel being used.39
Within the denial, EPA also evaluated the contention that the current point of obligation was
increasing fuel prices for consumers.40
36	See, e.g., 81 FR 89746 (Section V.D).
37	80 FR 77420, 81 FR 89746.
38	See, e.g., 80 FR 77420 (Section IX.C.), "Screening Analysis for the Final Renewable Fuel Standard Program
Renewable Volume Obligations for 2017," memorandum to the docket EPA-HQ-OAR-2016-004.
39	See "Denial of Petitions for Rulemaking to Change the RFS Point of Obligation," available in docket EPA-HQ-
OAR-2016-0544, November 22, 2017.
40	See "Denial of Petitions for Rulemaking to Change the RFS Point of Obligation," available in docket EPA-HQ-
OAR-2016-0544, November 22, 2017.
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