RIN Futures Become a Reality
In a development that will increase liquidity and transparency in the RIN market, two major providers are making RIN future contracts available to be traded. Both CME Group and the IntercontinentalExchange (ICE) will have RIN products available to be traded by mid May. CME Group and ICE will enable over the counter trading (OTC) of D4 RINs, D5 RINs, and D6 RINs. D6 RINs are the most common RINs, typically fulfilled by corn ethanol production. D5 RINs are the most flexible premium RINs, representing advanced biofuel that may consist of biogas, advanced drop in fuels, or other fuel types that meet the 50% GHG reduction standard. D4 RINs are biomass-based diesel RINs, fulfilled primarily by biodiesel and renewable diesel fuels. The development of a futures market could provide a substantial boost to the development of advanced biofuel facilities by enabling their financing. Many financial market participants have in the past regarded RIN revenue as too speculative to include in a plant's pro forma but are likely to be reassured by the presence of RINs in the OTC market. We speculated in our recent white paper that the EPA's rulemaking on Quality Assurance Programs (QAPs) could facilitate the establishment of a RIN futures market. See http://www.stoel.com/showarticle.aspx?Show=10180
EPA Releases Green Diesel Notice of Violation
Yesterday the EPA released the third major Notice of Violation ("NOV") against a biofuel producer in the past six months under the Renewable Fuel Standard ("RFS"). The NOV states that EPA has determined that Green Diesel, LLC of Houston, Texas, generated 60,034,033 invalid Renewable Identification Numbers (“RINs’) with a current market value of perhaps $85 million. Coming on the heels of 31 settlement agreements relating to the Clean Green Diesel and Absolute Fuels RINs, this NOV is likely to trigger immediate market reaction. The EPA has been enforcing invalid RIN cases first against the RIN generator then subsequently against the obligated party, i.e., the company that uses the RINs for compliance with RFS. Obligated parties under the RFS are petroleum refiners and importers in the U.S. About a month after the Clean Green Fuel filing, the EPA filed NOVs against the obligated parties. It remains to be seen whether EPA will do so again. The agency may instead rely upon its past actions and its recently released Interim Enforcement Response Policy to motivate corrections by obligated parties.
Some market participants have criticized the EPA for their managing of the RFS program and questioned the RFS program itself. In response, the biofuel industry and particularly the National Biodiesel Board have taken significant steps to address the validity issues. While there is significant time delay as many of the alleged activities date back to 2010, it appears that the EPA enforcement activities have motivated substantial due diligence activities that will serve the RFS program participants well in future years. The immediate challenge is in addressing the new Green Diesel NOV and the resulting contractual implications for market participants who transacted in these RINs. The rapid growth in the value of the RIN market has certainly presented substantial challenges. Nonetheless, private market responses to date suggest that the resourceful biofuel and petroleum industries can weather these storms and ultimately make the RFS program more effective toward its goals of reducing U.S. dependence on foreign oil imports and reducing GHG emissions.
EPA Issues Proposed RFS2 Rules for 2011
The EPA has issued proposed RFS2 rules for 2011 that provide some indications that the agency is dedicated to jump starting the advanced biofuels industry. Most notably, the EPA held fast to an overall mandate of 13.95 billion gallons of renewable fuel. While the agency intends to deviate downward on cellululosic biofuels with a cut of 90% or more anticipated, the proposed rule maintains the overall Advanced biofuel mandate at 1.35 billion gallons and the Biomass-based diesel requirement at 800 million gallons. Thus the agency is paying significant attention to the existing capacity of the biodiesel industry despite the lack of approval for the blender's credit six months into the year. Biofuel supporters hope that this policy gap will be addressed shortly or that RIN values will continue to increase for Biomass based diesel.
The proposed rule contains two other notable components: tentative but retroactive RIN credit for canola, sorghum, pulpwood and palm oil biofuel producers; and a petition process for foreign countries to avoid the onerous feedstock obligations that now apply in favor of the aggregate approach available within the US. The referenced feedstocks have been under consideration by EPA for Life Cycle Analysis since prior to the original RFS2 Final Rule was released but the work has still not been completed. The severe challenge for this group of biofuel producers is that EPA has previously indicated that RIN generation would trigger only when the pathway was certified. EPA's proposed new flexibility is an improvement but still falls short of providing full RIN value for these producers due to the lag time and uncertainty associated with the approach. The proposed petition process for foreign countries is an apparent attempt to level the playing field for foreign producers who now must trace and certify feedstocks such as soy and corn in a manner not required within the US.
The rules will be published in the Federal Register shortly and the public comment period will likely run to approximately August 13th.
Secretary Chu Announces $80M for Biofuels
DOE Secretary Chu's announcement today regarding $80 million of ARRA funding for biofuels is potentially a positive development for the long-term development of the biofuels industry. What is worrisome from a practical perspective is the division of funding. The National Alliance for Advanced Biofuels and Bioproducts, centered in St. Louis, received $44 million to develop a systems approach for the sustainable commercialization of algal biofuel and bioproducts. The National Advanced Biofuels Consortium, based here in the Pacific Northwest, received up to $34 million to develop infrastructure compatible biomass-based fuels. Meanwhile eight infrastructure projects received up to $1.6 million to support expanded fueling infrastructure for ethanol blends. While the Administration is ahead of the curve in recognizing the importance of long-term support for the development of advanced biofuels, it is overlooking the increasingly challenging environment in first generation biofuels. Simply put- and purely in my opinion- there will be no second generation of biofuels if the first generation does not again thrive. The ethanol industry has hit a blend wall that the EPA has not been willing to help them overcome in the short term. Adding $1.6 million in E-85 infrastructure is but a chip in that wall when one considers the massive costs involved in building a national infrastructure. On the biodiesel side, the current industry has not yet received an extension of its tax credit and was already facing severe challenges. The investors who supported the expansion of the first generation biofuels industry are still tracking their investments and the policy support for the industry. While government funding will further the development of the science of advanced biofuels, private sector involvement will be essential to the ultimate commercialization of these fuels. To accomplish its ultimate goals, the Administration will need to begin to address these issues in a systematic manner.
Show me the Money: $564 Million Awarded to Integrated Biorefinery Projects
In an earlier blog post, Debra Frimerman reported that the U.S. Department of Energy was seeking applications for grants to help promote the construction and operation of pilot, demonstration, and commercial scale integrated biorefinery projects. Today, DOE announced the selection of 19 projects to receive up to $564 million in grant money authorized by the American Recovery and Reinvestment Act.
Notable awards include the following:
· $81 million to Bluefire LLC for a Mississippi project to produce up to 19 million gallons of ethanol fuel annually from woody biomass, mill residue, and municipal solid waste.
· $50 million to Sapphire Energy, Inc. for a New Mexico project to produce algal fuels using the Dynamic Fuels refining process.
· $23 million to Clearfuels Technology Inc. for a Colorado scale project to produce renewable diesel and jet fuel from woody biomass.
A complete list of awards is available here.
SHOW ME THE MONEY:Funding of $85 million for Algal and Advanced Biofuels
The U.S. Department of Energy (“DOE”) today announced Recovery Act funding of up to $85 million over a three year period for the development of algae-based biofuels and advanced, infrastructure-compatible biofuels. DOE wants leading scientists and engineers from universities, private industry, and government to collaborate in developing advanced biofuels and a thriving domestic bio-industry. Examples of advanced biofuels include green aviation fuels, green gasoline, and green diesel from a variety of biomass feedstocks.
The DOE will award between $25 million and $50 million to one or two teams that develop cost-effective algae-based biofuels. The remaining $35 million will be awarded to one team that can use the existing infrastructure to produce, distribute and transport algae-based biofuels.
Only teams may apply and applications are due September 14, 2009. No letters of intent are required.
Algal Fuels Developments
The recent blog posting (available here) regarding Exxon's $600 million investment in biofuels served as a reminder to me that comments are due soon (August 3, 2009) on the Department of Energy's draft "National Algal Biofuels Technology Roadmap" (the "Roadmap").
The Roadmap was prepared by a working group commissioned by DOE. The working group was commissioned to assess the current state of algae technology and to determine the next steps toward commercialization. For more information, see my earlier blog.
To submit comments, complete the "Algal Road-Mapping: Request for Information (RFI) Response Form" and submit it as an attachment to an e-mail message addressed to algaeRFI@go.doe.gov
Further, Gary Hunt has reported (available here) that Prize Capital, LLC has issued a $10 million algae fuel prize to encourage the development of advanced algal fuels. For more information about this contest, click here.
Show me the Money: Applications Available now for Washington's State Energy Program
On July 1, 2009, Washington State’s Department of Community, Trade and Economic Development (“CTED”) issued application guidelines and forms for its State Energy Program (“SEP”) (available by clicking here). The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) provided $60.9 million in new funding for Washington’s SEP. Subsequently, the Washington Legislature allocated $38.5 million to CTED to administer a loan and grant program for energy efficiency and renewable energy program (see our client alert, available here, regarding the legislative action).
Eligible energy efficiency, renewable energy, and clean energy projects may be eligible for SEP funding between $500,000 and $2 million.
Eligible energy efficiency projects are those that use technologies that have been deployed at commercial scale that result in the reduction in energy consumption through increases in the efficiency of energy use, production, or distribution, and high-efficiency cogeneration. Ineligible projects are those that are eligible for Recovery Act Funding for community wide urban residential and commercial energy efficiency upgrades as described in (i) Chapter 379, Laws of 2009; (ii) Low income weatherization projects and programs which are eligible for funding through the state’s low-income weatherization program; (iii) Loans support to financial institutions for energy efficiency projects as described in Chapter 379, Laws of 2009; (iv) state energy efficient appliance rebates; and (v) green jobs training as described in Chapter 536, Laws of 2009.
Eligible renewable energy projects are those that are located in Washington and use existing commercial scale technologies that generate liquid fuels, process heat or electricity using algae, bark, biodiesel, biomass, biosolids, food waste, fresh water, gas from sewage treatment facilities, landfill gas, geothermal, pulping liquors, sawdust, solar, hydrokinetics, wind, wood chips and various other waste products. Ineligible projects include those that use the following feedstocks: municipal solid waste, wood from old growth forests, and chemically treated wood.
Eligible clean energy innovation projects include are those that offer innovative new technologies or service delivery models for energy efficiency, renewable energy, or other areas of clean energy. Projects must have a solid chance at commercial scale deployment within two to three years. Ineligible projects include carbon sequestration projects, lab scale projects, and those excluded under federal SEP guidelines.
Interested parties must file a notice of intent to apply by July 27, 2009 at 5:00 p.m. Pacific.
Full applications are due on August 17, 2009 at 5:00 p.m. Pacific.
Information workshops will be held on July 13, 14, 15, and 16. Click here for the specific dates and times. I will be attending the July 13 workshop in Everett, WA. An informational webinar will also be held on July 23.
Advanced Biofuel Producer Payments - FY 2009 Deadline Approaching!
Advanced biofuels producers must enroll by August 11, 2009 to be eligible to receive payments from the USDA for FY 2009 production under Section 9005 of the 2008 Farm Bill. Eligible producers of advanced biofuels may receive payments for advanced biofuels produced from October 1, 2008 through September 30, 2009 (FY 2009). $30 million is available for distribution under this program for advanced biofuels producers in FY 2009.
The amount of payments made to individual producers will depend on the number of program participants and the volume of advanced biofuels being produced. Payments will be made in one lump sum to eligible producers after FY 2009. Contact your local USDA Rural Development State Office for application materials or to learn more.
EPA Extends RFS 2 Comment Period
Last week, the US EPA extended the rulemaking period on RFS 2 until September 25, 2009. This extends the period by 60 days. While this rulemaking is highly complicated and contentious, it is unclear that extending the comment period will improve this situation. In addition, the effective date of the regulations continues to be delayed. This could undermine Congress' intentions in passing the Energy Independence and Security Act that established RFS 2. Let's hope EPA is able to move quickly and efficiently in finalizing and implementing the regulations.
NEW HOPE FOR SHUTTERED MINN. BIODIESEL PLANT
A Minnesota biodiesel plant that has been shuttered for more than one year was approved for a $25 million loan from the U.S. Department of Agriculture (“USDA”). This loan is the second made by its Rural Development division under Section 9003 of the Farm Bill (the Biorefinery Assistance Program).
The loan is to help SoyMor Biodiesel, a 30-million gal/yr plant in Albert Lea "diversify its operations." The old plant could only process soy bean oil and the feedstock costs effectively put it out of business. The USDA Rural Development loan will allow SoyMor to process multiple types of feedstocks for the production of biodiesel. Construction will begin once the plant has secured debt financing and will last approximately six months. The plant employed about 32 people in its heyday.
SoyMor will use Renewable Energy Group (REG) proprietary technology for the upgrades and once the plant is up and running, REG will market the plant's biodiesel.
Show Me the Money: Renewable Energy Financing in the Farm Bill
In an earlier blog, my colleague, Debra Frimerman reported about the Rural Energy for America Program (REAP). REAP provides grants and loan guarantees to agricultural producers and rural small businesses to purchase renewable energy systems, make energy efficiency improvements and conduct feasibility studies for renewable energy systems.
REAP is a program under the Food, Conservation, and Energy Act of 2008 (the "2008 Farm Bill"). The 2008 Farm Bill also includes numerous other programs to help develop renewable energy in rural areas and promote the production of sustainable feedstocks for renewable energy production. Please see this recent alert for specifics.
$18 Million of Value-Added Producer Grants Available
USDA Rural Business-Cooperative Service is accepting applications for $18 million in Value-Added Producer Grants. Funds are available for value-added agricultural projects, including farm-based renewable energy projects, for either planning or working capital purposes. Examples of eligible projects include developing ethanol and biodiesel plants, pelletizing biomass and installing anaerobic digesters.
The maximum grant award is $100,000 for a planning grant and $300,000 for a working capital grant. Applicants must provide matching funds of at least 100% of the grant award. Eligible applicants include (1) independent agricultural producers, (2) eligible agricultural producer groups, (3) farmer-owned or rancher-owned cooperatives and (4) majority controlled producer-based businesses.
Check out our client alert on this opportunity for more information.
Is More Bad By-Product News Coming for Biofuels Producers?
(this article was written by my colleague, Rick Goldfarb, and may also be accessed at www.foodliabilitylaw.com)
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2008 was a terrible year for makers of ethanol and biodiesel. Huge spikes in the prices of raw materials, natural gas and transportation and drops in the prices they received for their main products have driven many of them to cut back production, shutter plants or even seek bankruptcy protection. In addition, U.S. biodiesel producers saw themselves faced with an antidumping investigation by the EU that might affect their export market.
If you thought it couldn’t get any worse, hang on.
The National Grain and Feed Association reports that at the International Feed Expo in Atlanta on January 27, Dr. Daniel McChesney of the Food and Drug Administration spoke about studies the agency has reviewed concerning distillers’ grains, the main by-product of ethanol, and glycerin, the main by-product of biodiesel. The information presented by the FDA’s Center for Veterinary Medicine is of concern to anyone in the biofuels industry, as well as anyone who feeds livestock or purchases, processes or consumes meat and poultry.
The FDA has tested 45 samples of distillers’ grains from ethanol plants and in over half of them detected antibiotics, including virginiamycin, erythromycin and tylosin. NGFA later learned that the concentration of those antibiotics exceeded the level (0.5 ppm) from a letter of no objection relating to virginiamycin issued in 1993 to the predecessor of Philbro Animal Health. There are no safe levels established for the other two antibiotics in feed grain. The FDA has 15 more samples to test and intends to make its final report available this summer.
With regard to biodiesel-derived glycerin, Dr. McChesney stated that the FDA does not consider it to be GRAS, or generally recognized as safe, for use as animal feed. Two issues raised concerns:
· Many samples contained more methanol than the 150 ppm level recognized as safe for animal feed; and
· Samples contained salt in concentrations as high as 16,500 ppm.
Accordingly, the FDA will be conducting a safety review of glycerin as a by-product of biodiesel. This will focus on the type of feedstock used, the manufacturing process and how the glycerin is introduced into feed.
Developing markets for by-products has been a significant challenge for the emerging biofuels industry. The latest news of the FDA’s concerns about both distillers’ grains and glycerin will increase those challenges in an already difficult environment.
Deadline Approaching for Minnesota Biodiesel Grants
The Minnesota Department of Agriculture has announced that it will be providing $300,000 in grants to qualified applicants to use for the addition of infrastructure that would allow for the blending of biodiesel in all types of weather, including cold conditions. Facilities must offer biodiesel for a minimum of five years, contingent upon the availability of diesel or biodiesel fuel. The Grantee must notify the Minnesota Department of Agriculture in writing in the event that diesel or biodiesel fuel is not readily available. Complete information is available on the Department's website.
The deadline for submitting applications is December 12, 2008.
EPA Stalls Regarding RFS Waiver
EPA Administrator Stephen Johnson granted himself a continuance last week to make his decision on whether to grant Texas Governor Rick Perry’s request for a waiver of the Renewable Fuel Standard (RFS). As an attorney accustomed to living with deadlines, I certainly appreciate the lure of being able to grant oneself a continuance. Like many others participating in the biofuels industry, however, it is somewhat frustrating to encounter yet another delay on the policy front.
To be fair, Administrator Johnson has his work cut out for him in resolving this issue. Advocates on both sides see potentially substantial impact from a decisive ruling on the waiver. The waiver provision has been described as a pressure relief valve for the RFS. The interesting thing about this pressure valve is that no one knows what pressure the valve will withstand before it releases. Oil industry advocates would prefer a “hair trigger” type pressure release valve whereas biofuel advocates would like to see a more robust fixture.
Governor Perry’s request has some unique attributes. He actually based his request not on the RFS causing difficulty for the petroleum industry- which would have been difficult since ethanol has typically been less costly than gasoline and in ample supply- but on food and livestock supply arguments. Governor Perry’s request also precedes the ramp up period in the RFS when the real challenges will likely begin and thus his request could be viewed as an early attempt to hobble the RFS.
Let us hope that cooler heads prevail. Given the tremendous energy security and cost issues presently caused by our fossil fuel dependence, now is not the time for the EPA to start buckling on the RFS. As noted by the NBB’s CEO, Joe Jobe, "If the RFS is waived or cut in half in 2008, then the growth of all biofuels, including 'advanced biofuels' such as biodiesel, will be severely hindered." As Jobe and others have noted, these advanced biofuels may hold the real key to relieving the pressure on both fuel and food prices in the future.
