A lawyer representing several operators of small refineries asked the US Environmental Protection Agency on July 8 to not widely share reasons they are seeking exemptions from ethanol quotas under the federal Renewable Fuel Standard.
“Recent media reports indicate that [US Department of Agriculture Sec. Sonny Perdue] is attempting to gain access to the confidential business information (CBI) submitted by small refineries during the hardship petition process,” said LeeAnn Johnson Koch, a partner in Perkins Coye LLP’s Washington office.
Small refinery operators submitted the information under claims of confidentiality with the understanding that only EPA and the US Department of Energy would have access to it, Koch said in a letter to EPA Administrator Andrew R. Wheeler. “USDA has no reason to access small refineries’ CBI because it has no legal authority or role with respect to the petitions,” Koch said.
Petitions for hardship relief contain confidential financial information about each small refinery and the unique hardship it experiences under the RFS, Koch said. “The information is extremely sensitive from a competitive standpoint, illustrating both the financial and commercial vulnerability experienced by the small refinery petitioning for relief. As a result, small refineries have gone to great lengths to protect the confidentiality of their CBI,” Koch said.
“The USDA seeks the small refineries’ CBI in order to assert influence over EPA’s final decisions and thereby reduce the number of small refinery petitions granted by EPA. This interference is improper as a matter of law,” Koch said. “Moreover, USDA’s ties to farmers create a significant risk that small refinery CBI released to the USDA will be shared beyond the agency. [Perdue] has made clear his commitment to farmers by expressing his position that farmers should have greater access to small refinery exemption information.
“The decision whether to grant small refinery hardship is a legal decision, not a political one, and EPA should act in accordance with the law and the several court decisions directing EPA to grant hardship relief as Congress intended,” Koch said.
Her letter followed one that Environment and Public Works Committee Chairman John A. Barrasso (R-Wyo.) and 12 other Senate Republicans from oil and gas producing states sent to US President Donald Trump on June 28. They asked the president to prevent Perdue’s interfering or trying to influence the EPA administrator’s deliberations on granting small refinery operators hardship relief from meeting the RFS’s renewable fuel quotas.
“We would view any decisions to delay, reduce, or deny hardship relief to small refineries, or reallocate the obligation of small refineries to other refineries, as the result of the Secretary of Agriculture’s impermissible interference,” they said in their letter. “We are confident that others, including the federal courts, would do the same.”
Contact Nick Snow at [email protected].
