Quick Links to Articles for January 20, 2023

FMCSA Proposes New Emergency Declaration Restrictions Limiting Scope and Duration of Regulatory Waivers

Annual EPCRA Tier II Reports Due March 1st

Multi-State Hours of Service Waiver Issued for Gasoline, Diesel and Jet Fuel

Reminder: The Economic Census Begins January 31 and Responses are Required by Law

Weekend Reads

Federated Insurance: Risk Management Corner

EMA Member Services Spotlight Featuring: National Purchasing Partners (NPP)

On Wednesday, Energy Secretary Granholm sent a letter to House Republicans warning them that limiting President Joe Biden's authority to tap the nation's oil reserves would undermine national security, cause crude oil shortages and raise gasoline prices. The Strategic Production Response Act was introduced earlier this month by House Energy & Commerce Committee Chair Cathy McMorris Rodgers (R-WA), to limit presidential authority in releasing oil from the strategic reserve, except in the case of a severe energy supply interruption.

Meanwhile, Republican Attorneys General are beginning to take aim at investment firm’s push for certain climate investments, claiming that these climate-friendly policies could run afoul of the firm’s fiduciary responsibilities. In a letter led by Utah Attorney General Sean Reyes, the group questioned “woke” financial decisions based on addressing climate change.

In June, EMA submitted comments on the SEC’s proposed rule that would mandate extensive climate disclosures by public companies. While most energy marketers represented by EMA are not public companies and, therefore, are not required to report directly to the SEC, EMA is concerned due to the costs and burdens their SEC-regulated suppliers would incur by being required to disclose greenhouse gas emissions from upstream and downstream activities in its value or supply chain under many, if not most, circumstances.

In other news, the EPA released its final “Waters of the United States” (WOTUS) rule. The US Supreme Court currently has on its docket the Sacket v. EPA case to review whether a narrow definition of navigable waters is constitutional. The rule is important to marketers and every business across the country because it will remove barriers imposed by the Clean Water Act to development of areas categorized as “wetlands” that are dry except for occasional severe storm runoff. If the Biden Administration’s rule is upheld, energy marketers with facilities near streams, rivers, and other bodies of water, could be impacted.

On Capitol Hill, the House and Senate are in recess this week though organizing for the 118th Congress continues. New members of the House Transportation & Infrastructure Committee were announced this week and include: Burgess Owens (R-UT), Tracey Mann (R-KS), Rudy Yakym (R-IN), Lance Gooden (R-TX), Aaron Bean (R-FL), Lori Chavez-DeRemer (R-OR), Mike Collins (R-GA), Anthony D’Esposito (R-NY), Chuck Edwards (R-NC), John James (R-MI), Tom Kean, Jr. (R-NJ), Marc Molinaro (R-NY), Brandon Williams (R-NY), Eric Burlison (R-MO), John Duarte (R-CA), Mike Ezell (R-MS), and Derrick Van Orden (R-WI).

The Federal Motor Carrier Safety Administration (FMCSA) is proposing to significantly narrow the scope of regulatory exemptions available to CDL drivers during a declared emergency as well as the length of time those regulations are waived. The proposed rule is important to energy marketers because it could hinder the ability to adequately maintain fuel supply during declared emergencies while imposing new hours of service (HOS) related record keeping and reporting requirements. If adopted, the FMCSA proposed rule would:

• Restrict the automatic 30-day waiver period to presidential emergency declarations only.

• Reduce the automatic waiver period for emergency declarations made by a governor or the FMCSA from 30-days to just 5 days.

• Limit the regulatory exemptions in emergency waivers to driver HOS only under 49 CFR 395.3 rather than the current practice of waiving all regulations contained in sections 49 CFR 390 to 399. Among the major regulations contained in 390 to 399 are those safety rules relating to hours of service, safe driving practices, drug and alcohol testing, vehicle maintenance and inspection, and general driver qualifications.

• Require motor carriers to record and report how often each driver relied on the HOS waiver during the period of emergency.

• Eliminate events caused by market forces, including supply shortages, supply chain disruption and driver shortages as valid reasons for an emergency waiver unless an immediate threat to human life exists.

The proposed rule would maintain the authority of a governor to issue 30-day automatic waivers with two optional 30-day extension periods for shortages of heating fuels (heating oil, propane, natural gas) as required under the Reliable Home Heating Act (49 U.S.C. 31136 note). EMA is currently analyzing the rule and will submit written comments to the FMCSA by the February 6, 2023 deadline.

The Emergency Preparedness and Community Right to Know Act (EPCRA) of 1986 was created to help communities plan for chemical emergencies. EPCRA requires facilities to report each year on the storage, use and release of hazardous chemicals (including petroleum products) during the previous calendar year. Typically, Tier II reports are filed with the state or local Fire Marshall (see state compliance section in linked Compliance Bulletin below). The information on the EPCRA Tier II report is used by state and local governments for emergency response to risks associated with stored hazardous chemicals.

Facilities that store over 10,000 pounds of hazardous chemicals (petroleum products) onsite at any point during the previous calendar year must file an EPCRA Tier II. The 10,000 pounds compliance trigger is calculated by combining the volume of all petroleum on site in every storage container including above ground and underground bulk storage tanks, portable skid tanks, and heating fuel or propane tanks used to heat facility buildings (see gallon to pound conversion chart below). Retail gasoline facilities with 75,000 gallons or less of gasoline storage capacity and 100,000 gallons or less of diesel fuel storage capacity are exempt from EPCRA reporting requirements. Card lock fueling facilities are also subject to the retail fueling facilities exemption, with the same storage capacity limits above. Tier II reports for 2022 must be filed with state emergency response authorities by March 1, 2023. To see the entire Compliance Bulletin, and to use a conversion chart to determine the 10,000-pound reporting trigger go here.

The Federal Motor Carrier Safety Administration (FMCSA) issued a multistate Hours of Service waiver for gasoline, diesel and jet fuel through February 15, 2023, for the following states due to an unanticipated shutdown of the Suncor refinery in Colorado and severe winter storms: COLORADO, KANSAS, NEBRASKA, NEW MEXICO, OKLAHOMA, TEXAS, UTAH AND WYOMING.

The emergency declaration applies to all states and jurisdictions listed above. This waiver covers all fuel deliveries in the states and jurisdictions listed because they support the "emergency," which in this case, is maintaining adequate fuel distribution in those areas.

Important: The FMCSA waiver covers interstate shipment of fuel in and out of the states and jurisdictions listed in the waiver letter. The FMCSA waiver does not cover intrastate only shipments (deliveries that stay within the boundaries of a single state). State governors must issue waivers for intrastate shipments within their boundaries. State Governors typically issue such waivers as part of their Emergency Declaration, or when FMCSA waivers are put into effect. Some of these states have already issued intrastate HOS waivers. Click here to read the notice and here for questions regarding the waiver.

The Energy Marketers of America will continue to work closely with the FMCSA, DOE, DHS/FEMA and other federal agencies to ensure emergency preparedness and response waivers and solutions to problems that arise in response to the Suncor refinery outage.

The 2022 Economic Census, the U.S. Census Bureau’s official measure of American business, begins mailing out to selected companies on January 31st. Data provided by businesses fuels the most comprehensive economic statistics available. If you receive an official Economic Census letter, response is due March 15th and is required by law.

Wyoming legislators propose bill to phase out EVs by 2035

Republicans Increasingly Like Tesla Thanks to Elon Musk. That Hasn’t Translated to Greater Interest in Buying EVs | Morning Consult

 OPEC Chief Is ‘Cautiously Optimistic’ on Global Economy | Bloomberg

Lithium’s Next Big Risk Is Grand Supply Plans Falling Short | Bloomberg

A risk to Biden’s climate law: Depleted agencies | E&E News

Citi, BofA Lead Wall Street Banks Funding Fossil-Fuel Expansion | Bloomberg

EV chargers are easier to find in white, wealthy neighborhoods | Axios

U.S. climate envoy Kerry outlines carbon offset initiative for developing nations | Reuters

Day to day life at your business shouldn’t be risky or dangerous — you want to create a safe, clean space for your employees and clients. But without proper safety checkups conducted on a regular basis, it can quickly become unsafe, potentially leading to accidents and losses. Take a close look at your business. Is it up to par in terms of general safety, cleanliness, and functionality? Take a few moments each year to complete an annual safety checkup, and follow up with periodic inspections and regular safety meetings to help create a culture of risk management at your business.

For a general list of items for your annual safety checkup and other resources on this topic, please click here. Please always feel free to contact your Federated regional representative or EMA’s National Account Executive Jon Medo at 800.533.0472 for any additional information or risk management questions. Federated is a Partner in EMA’s Board of Directors Council.
This article is for general information and risk prevention only and should not be considered legal or other expert advice. The recommendations herein may help reduce, but are not guaranteed to eliminate, any or all risk of loss. The information herein may be subject to, and is not a substitute for, any laws or regulations that may apply. Qualified counsel should be sought with questions specific to your circumstances. © 2023 Federated Mutual Insurance Company.