OMAHA (DTN) -- Two years after filing a Freedom of Information Act request with EPA seeking company names and other information about companies granted small-refinery exemptions, two ethanol groups asked a federal court to issue a ruling requiring the agency to provide more information.
The EPA released a number of documents in September 2020 in response, but according to court documents the agency made a number of redactions, including refinery locations and the names of their parent companies.
Growth Energy and the Renewable Fuels Association filed a motion for partial summary judgment with the U.S. District Court for the District of Columbia on Tuesday.
"EPA claims those pieces of information are covered by FOIA Exemption 4, which reaches 'commercial or financial information obtained from a person and privileged or confidential," the groups said in their motion.
"Exemption 4 plainly does not apply to the withheld information -- and worse, EPA knows it, for it previously recognized that such information is not 'obtained from a person.' Further, the information is not 'commercial or financial,' nor has not been treated as confidential by refineries. In short, the information meets none of the elements of Exemption 4."
The groups said EPA's refusal to disclose basic information about exemptions granted, "is impermissibly making a secret body of law, reducing nationally mandatory volume requirements outside of the public's view and beyond the reach of adversely affected entities who would seek judicial review."
In a joint statement, RFA President and Chief Executive Officer Geoff Cooper and Growth Energy Chief Executive Officer Emily Skor, said the industry has been pressing the agency for transparency for years.
"For the last several years, biofuels interests have pleaded with EPA to lift the veil of secrecy that it has held over the issuance of small-refinery exemptions under the Renewable Fuel Standard," they said.
"These clandestine agency actions have destabilized markets and allowed numerous refineries to avoid their RFS compliance obligations at the expense of renewable fuel producers and supporters, including America's farmers. Fundamentally, this request is about fairness and transparency in government."
In the original lawsuit, the groups said the EPA and the U.S. Department of Energy stonewalled their requests dating back to April 2018 and missed deadlines outlined by the FOIA.
Since 2016, the EPA has granted 85 small-refinery exemptions amounting to about 4 billion gallons in biofuels demand.
The ethanol industry has been pressing the agency to comply with a ruling in the U.S. Court of Appeals for the 10th Circuit in Denver that ruled the EPA had mishandled the program. Ethanol groups want the agency to apply the ruling nationally.
In the motion for partial summary judgment, the RFA and Growth Energy argued the information they request is readily shared by refining companies on their websites.
"Companies' and refineries' names and locations are not secret at all," the motion said.
"For example, companies may keep confidential information whose disclosure 'could create a windfall for competitors.' That is not how companies treat their name and locations. Just the opposite, they freely disclose that information to inform customers, partners and regulators of their existence and operation.
"EPA's refusal to release the names and locations of refineries receiving exemptions is extremely troubling and goes beyond the ordinary efforts of an agency to avoid mandatory FOIA disclosure. Here, EPA is refusing to disclose essential elements of final, binding decisions it has made to relieve dozens of entities from their congressionally imposed legal duties to comply with the RFS program's national volume requirements."
Refineries producing transportation fuel are required by the Renewable Fuel Standard to demonstrate each year they have blended certain volumes of renewable fuel into gasoline or diesel fuel or acquired biofuels credits from others called renewable identification numbers, or RINs.
The RFS allows certain small refineries -- those that produce 75,000 barrels or less per day -- to petition EPA for a temporary extension of an exemption.
To date, EPA has yet to make public details regarding how it determines who qualifies for small refinery exemptions.
That includes the fact it has granted an exemption, names of exempted refineries, the volume of biofuels exempted, the years covered by the exemptions, as well as EPA's analysis of whether a small refinery would be subject to disproportionate economic harm complying with the RFS.
Todd Neeley can be reached at firstname.lastname@example.org
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