United States: EPA Finalizes Renewable Identification Number Quality Assurance Program

Last Updated: August 18 2014
Article by Charles T. Wehland and Jane K. Murphy

In an effort to prevent fraud that threatens to undermine the Renewable Fuel Standard ("RFS") program, and to restore faith in the trading system established to facilitate RFS compliance, the United States Environmental Protection Agency ("EPA") published final regulations for a renewable identification number ("RIN") quality assurance program on July 18. This codifies a voluntary program to ensure that RINs are valid and clarifies responsibility for replacing RINs if they are later determined invalid.

RINs are used to track RFS compliance. Pursuant to this program, a designated percentage of gasoline and diesel fuel produced or imported into the United States must be renewable fuel, cellulosic biofuel, biomass-based diesel, or advanced biofuel (collectively, "Renewable Fuel"). A RIN is assigned to each batch of Renewable Fuel. Regulated parties can demonstrate they have met the RFS requirement for each reporting period by either acquiring the Renewable Fuel itself with the attached RIN, or by acquiring RINs alone.

EPA issued the rule in response to several high-profile enforcement cases that invalidated more than 140 million RINs for biomass-based diesel. These cases resulted in criminal charges against individuals and companies that generated fraudulent RINs, and civil enforcement against the refiners and marketers who unwittingly bought the fraudulent RINs and used them to demonstrate compliance. The enforcement actions also spawned a variety of civil lawsuits among participants in the RIN trading market, with plaintiffs seeking compensation from traders and other parties who sold RINs that turned out to be invalid. The rule also addresses what EPA perceived as inequities in the RIN market for small Renewable Fuel producers.

Last year, EPA proposed a quality assurance program for RINs that included standards for ensuring that RINs were valid and for clarifying who is responsible for replacing RINs subsequently found to be invalid. After reviewing comments, EPA finalized a voluntary RIN quality assurance program that provides the RIN user with an affirmative defense to an EPA civil enforcement action citing the transfer or use of fraudulently generated RINs. To obtain the affirmative defense, the party transferring or using the fraudulent RINs will need to establish:

  • The RINs were verified by an independent third-party auditor in accordance with an EPA-approved quality assurance program;
  • The RIN owner did not know or have reason to know that the RINs were invalidly generated prior to being verified by the independent third-party auditor;
  • The auditor or RIN owner informed EPA within five business days of discovering that the RINs in question were invalidly generated;
  • The RIN owner did not cause the invalidity;
  • The RIN owner did not have a financial interest in the company that generated the invalid RIN; and
  • The RIN owner replaced the invalidated RINs with valid RINs.

Putting responsibility for replacing the invalidated RIN on the owner who used it to demonstrate compliance is a significant difference from the more robust auditing option discussed by EPA in the proposed rule. The proposed option would have placed responsibility for replacing the invalidated RIN on the third-party auditor. EPA ultimately decided to abandon this option in the final rule because it wanted to offer an incentive for the RIN owner to provide "significant robust oversight" of the auditors and because of the perceived difficulty that the third-party auditors may have in obtaining sufficient financial assurance to replace invalidated RINs. RINs audited pursuant to the more robust program in the proposed rule between February 21, 2013, and December 31, 2014, however, will remain as validly audited RINs that need to be replaced by the auditor if they are later invalidated.

In order to be approved by EPA, quality assurance plans must include procedures to verify that:

  • Feedstocks used in the production process meet the definition of renewable biomass;
  • The production process is consistent with that in the EPA Moderated Transaction System for the purchase, sale, and transfer of RINs;
  • The renewable fuel produced has been designated for qualifying uses;
  • RINs are separated from the actual renewable fuel; and
  • The renewable fuel has been sampled, as appropriate, to confirm any of the requirements identified above.

An entity must register with EPA prior to conducting any RIN audits in order to qualify as an independent third-party auditor. The registration materials must include documentation that the audit team includes both a professional engineer and a certified public accountant along with professional liability insurance (although the final rule, unlike the proposed rule, does not specify the required level of coverage). Although EPA does not envision that every member of the audit team with be either a professional engineer or a certified public accountant, the engineer and accountant will both need to certify audit reports.

To demonstrate that they are an independent third party, audit teams cannot be owned or operated by any renewable fuel producer (including any employee, subsidiary, or obligated entity). In addition, the auditor must not own, buy, sell, or trade RINs, or have any interest or appearance of interest in any renewable fuel-producing business. If any invalid RINs are discovered during an audit, the auditor must notify both EPA and the generator of the RIN within one day.

The auditors must conduct an on-site visit at the renewable fuel facility at least two times per calendar year (and no less often than once every 200 days) to verify the RINs from that facility. The on-site visit must be overseen by a professional engineer and must include an inspection or evaluation of all physical attributes of the facility necessary to verify compliance with the quality assurance plan elements.

The new rule is effective on September 16. As noted above, the final rule allows for the continued use of RINs that were verified pursuant to either the more robust ("Option A") or less stringent ("Option B") procedures identified in the proposed rule as long as those RINs were verified between February 21, 2013 and December 31, 2014. A key difference between RINs verified pursuant to Option A and to Option B is that the auditor is obligated to replace any subsequently invalidated RINs pursuant to Option A, while the party using the RINs is obligated to replace any subsequently invalidated RINs pursuant to Option B. The validation program ultimately finalized by EPA is relatively similar to Option B.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Charles T. Wehland
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions