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.
EPA: Possible Increase in "Blend Wall"
The U.S. Environmental Protection Agency (“EPA”) expects to make a final determination in mid-2010 regarding a potential increase in the current 10% allowable ethanol content in fuel, the so-called “blend wall”.
In May 2009, Growth Energy, a biofuels industry association headed up by General Wesley Clark, requested a waiver that would allow the use of up to 15 % ethanol in gasoline. As mandated by the Clean Air Act, EPA was required to respond to the waiver request by December 1, 2009. The EPA responded earlier this week in a letter explaining that despite not completing all the applicable tests, early test results on 2 vehicles indicated that engines in newer (i.e. later than 2001) vehicles could probably handle an ethanol blend higher than the current limit. The EPA’s final determination will follow completion of testing on 19 vehicles (the number recommended by the Department of Energy (“DOE”)) which may take another 6 months.
The EPA recognizes that the limit on blends must be raised to achieve the renewable fuel mandate of 36 billion gallon by 2022. EPA has been reviewing public comments and working with DOE to determine the feasibility of a higher ethanol blend. Concerns include the impact on engine component longevity when a higher blend is used long term and appropriate labeling at the fuel pump.
Full text of the letter: http://www.epa.gov/otaq/additive.htm
IRS Issues Notice on Depreciation of Ethanol Facilities
On Monday, August 24, the IRS issued Notice 2009-64. The notice sets forth a proposed revenue ruling that concludes that ethanol facilities are depreciable over 7 years (rather than 5 years). A link to the notice appears below.
The proposed ruling classifies ethanol facilities as assets used in Waste Reduction and Resource Recovery Plants (7 years) and not assets used for manufacture of Chemical and Allied Products (5 years).
The IRS did not state when it will issue a final revenue ruling. The notice does request comments , which must be submitted by November 23, 2009.
The reasoning underlying the proposed ruling is subject to potential criticism. This may explain why the ruling was issued in proposed form and comments requested.
Clients that are interested in learning more about the proposed ruling or submitting comments should speak with their favorite Stoel Rives attorney.
Show me the Money: $5.5 million available for Ethanol Blends
Today, the Department of Energy (DOE) announced the release of a funding opportunity announcement (FOA) related to ethanol blends. The FOA provides up to $5.5 million from the American Recovery and Reinvestment Act to increase the use of higher ethanol blends through expanding refueling infrastructure and funding outreach to promote public awareness.
$3.5 million is available to fund refueling infrastructure related to higher ethanol blends. Potential projects include modifications, upgrades, or expansions of fuel pumps at retail gas stations.
$2 million is available to fund national campaign projects that increase public awareness of the benefits, safety, and use requirements of higher ethanol blends.
Applications for this FOA are due October 4, 2009.
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.
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.
President Obama Directs USDA to Promote and Expand Biofuels
On, May 5, 2009, President Obama announced federal efforts to increase investment and use of advanced biofuels. The President signed a Presidential Directive establishing the Biofuels Interagency Working Group, ordering the Department of Agriculture (“USDA”) to implement financing opportunities from the Food Conservation and Energy Act of 2008 (“FCEA”), and announcing additional Recovery Act funds for renewable fuel projects.
The Biofuels Interagency Working Group will be co-chaired by the Secretaries of Agriculture and Energy and the Administrator of the Environmental Protection Agency. The Biofuels Interagency Working Group will coordinate existing policies and identify new policies to support the development of sustainable next-generation biofuels production.
President Obama has directed the USDA to immediately begin restructuring existing renewable fuels investments in order to preserve industry employment and develop a comprehensive approach to accelerate the production of American biofuels. Further, the USDA has 30 days to begin deployment of renewable energy financing opportunities from the FCEA. Financing opportunities under the FCEA include loan guarantees and grants for research, development, construction and retrofitting of demonstration and commercial scale biorefineries.
President Obama also announced that $786.5 million from the American Recovery and Reinvestment Act (for more information on the American Recovery and Reinvestment Act please see Show Me the Money: The Law of the Stimulus) will be used to expand commercial biorefineries and jumpstart advanced biofuels research and development. The money will be divided as follows:
- $480 million for integrated pilot and demonstration scale biorefinery projects
- $176.5 million for commercial-scale biorefinery projects
- $110 million for fundamental research
- $20 million for ethanol research
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.
Article: The Implications of Ethanol Plant Optimization
A recent article co-authored by Boise partner John Eustermann in Ethanol Producer magazine highlights certain considerations that plant managers must keep in mind in the event of ethanol plant optimization. These considerations include examination and re-evaluation of common project-related documents, such as technology licenses and permits/site control issues, when investigating optimization activities or technological modifications to the plant.
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.
Ethanol - Coming Soon to a Pipeline Near You?
According to John Eustermann, a partner in our Boise office specializing in biofuels, while the measure is seen by those in the ethanol industry an encouraging step towards moving ethanol to the retail pump, it's part of a long-term effort he's seen to augment the almost exclusive transport of ethanol via rail cars. Challenges will include the potential incompatibility and understanding the short- and long-term risks of transporting fuel-grade ethanol through pipelines, whether dedicated or existing.
