Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C., law firm providing biobased and renewable chemical product stakeholders unparalleled experience, judgment, and excellence in bringing innovative products to market.
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By  Lynn L. Bergeson 

On December 21, 2020, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of proposed updates to the Toxic Substances Control Act (TSCA) Fees Rule. Specifically, the proposed updates to the original 2018 TSCA Fees Rule include:

  • Narrowing the scope of the rule by exempting importers of articles containing a chemical substance, companies that produce a chemical as a byproduct or manufacture or import as an impurity, companies that produce a chemical in de minimis amounts, companies that use chemicals solely for research and development (R&D) purposes, and companies that manufacture a chemical that is produced as a non-isolated intermediate from fees;
     
  • Using cost data gathered over the past two years, instead of estimates, to update the fee calculations;
     
  • Ensuring fees are fairly and appropriately shared across companies by proposing a production-volume based fee allocation and including export-only manufacturers for EPA-initiated risk evaluations;
     
  • Allowing for corrections to be made to the list of manufacturers subject to fees for EPA-initiated risk evaluations after the final list is published, ensuring the accuracy of the list;
     
  • Increasing flexibility for companies by extending the amount of time to form consortia to share in fee payments;
     
  • Ensuring that EPA can fully collect fees and enabling companies to prepare better for paying fees by allowing payments in installments for EPA-initiated and manufacturer-requested risk evaluations; and
     
  • Adding new fee categories associated with new chemicals activities.

EPA will accept public comments on the proposal for 45 days after its publication in the Federal Register. Further details are available here, and a Bergeson & Campbell, P.C. (B&C®) commentary can be accessed here.


 
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By  Lynn L. Bergeson 

EPA has posted a Compliance Advisory entitled “Applicability of the Toxic Substances Control Act to Chemicals made from Petroleum and Renewable Sources Used as Fuels and Fuel Additives and Distillates.” The Compliance Advisory states that EPA is reaffirming that chemical substances used as fuels, fuel additives, and distillates made from either petroleum or renewable sources are subject to TSCA. Anyone who plans to manufacture (including import) a chemical made from petroleum or renewable sources must comply with the statutory and regulatory new chemical requirements under TSCA Section 5. According to the Compliance Advisory, EPA has received stakeholder inquiries “as to whether fuel and fuel additives made from renewable sources (such as renewable naphtha) are subject to the TSCA new chemicals requirements under section 5.” EPA states that it is issuing the Compliance Advisory “to affirm that fuel and fuel additives either made from petroleum or renewable sources are subject to TSCA and have been subject to its requirements since 1976.”

According to the Compliance Advisory, there are about 142 “naphthas” and 178 “distillates” (that compositionally can qualify as naphthas) currently on the TSCA Inventory, and they are considered Unknown, Variable composition, Complex, or Biological (UVCB) substances. Any substance that is not on the TSCA Inventory is a new chemical under TSCA Section 5(a)(1)(A). Prior to manufacture (including import) of a new chemical for commercial use, a premanufacture notice (PMN) must be filed with EPA under TSCA Section 5. The Compliance Advisory includes several questions and answers (Q&A), including:

Can you manufacture or import a chemical substance made from a renewable source if it is not listed on the TSCA Inventory?

No. Anyone who intends to manufacture (including import) a new chemical substance that is subject to TSCA for a non-exempt commercial purpose is required to submit a PMN at least 90 days prior to the manufacture of the chemical. Manufacturers (importers) are in violation of TSCA if they fail to comply or are late in complying with TSCA notice requirements. If you are required to submit a PMN, failure to do so is a violation of TSCA Section 15 and you may be subject to penalties. PMN submissions must include all available data, pursuant to 40 CFR 720.45 and 720.50. TSCA requires EPA to review the notice and make a determination; and, if appropriate, regulate the proposed activity.

EPA’s “compliance advisory” is disappointing. It signals this EPA is disinclined to promote renewable petroleum cuts and essentially (and emphatically) reaffirms what we believe to be EPA’s inflexible and unimaginative stance on “source” being determinative in petroleum cut UVCBs. This position, as we have noted in a variety of regulatory contexts, is a substantial disincentive to commercializing renewable petroleum cuts. EPA’s view is especially problematic when a refinery might wish to use a combination of petroleum and renewable feedstocks to make a single naphtha (or other distillate) cut.

For example, to avail itself of the equivalence determination, a company would have to submit a PMN for the renewable equivalent of a petroleum cut, sign the almost certain resultant consent order (EPA will undoubtedly identify aquatic toxicity concerns and may also identify health concerns), commence manufacture, file a Notice of Commencement of Manufacture or Import (NOC), and then request an equivalency determination. If EPA denies the equivalency determination, any downstream processor or user will have to either segregate the renewable products from the petroleum products so that the downstream entity can maintain records of compliance with the consent order or treat both the renewable and petroleum products as being subject to the order. Neither option is commercially feasible or sustainable.

This sequence of events illustrates why commercial entities are disinclined to avail themselves of renewable sources in the distillate space. EPA’s compliance advisory is an unexpected and, to many, unwanted parting gift from the Trump Administration. The Biden Administration may wish to revisit the wisdom and prudence of this inflexible, antiquated, and inequitable view.


 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On December 17, 2020, the U.S. Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE) announced the seven winners of Phase II of the Lithium-Ion Battery Recycling Prize. The prize is designed to facilitate innovative solutions to collecting, storing, and transporting discarded lithium-ion batteries for eventual recycling. Its goal is to develop processes that have the potential to capture 90 percent of all discarded or spent lithium-based batteries in the United States and reintroduce key materials into the U.S. supply chain. The seven selected prize teams will focus on building industry partnerships to design, simulate, and prototype a proof-of-concept solution. Each Phase II winner will receive a $357,000 cash prize in addition to $100,000 in non-cash vouchers to use at DOE National Laboratories and approved organizations within the American-Made Challenges Network. The winners will also advance to the third and final phase of the prize that entails a pilot validation.


 
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By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On December 14, 2020, DOE’s Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs Office issued its fiscal year (FY) 2021 Phase I Release 2 Funding Opportunity Announcement (FOA) for the SBIR and STTR Programs. Participating in the FOA are the following DOE program offices:

  • Office of Cyber Security, Energy Security, and Emergency Response;
  • Office of Defense Nuclear Nonproliferation;
  • Office of Electricity;
  • Office of Environmental Management;
  • EERE;
  • Office of Fossil Energy;
  • Office of Fusion Energy Sciences;
  • Office of High Energy Physics; and
  • Office of Nuclear Energy.

The FOA is available for qualified small businesses with strong research capabilities in science or engineering in any of the research areas sought in the announcement. Grant applications for Phase I are due by February 22, 2021.

Tags: DOE, EERE, FOA, SBIR, STTR

 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

DOE’s EERE announced an FOA of up to $35 million for bioenergy feedstock technologies and algae R&D. This FOA supports the White House’s priority to advance the domestic bioeconomy and DOE’s Bioenergy Technologies Office’s (BTO) goal to improve the performance and lower the cost and risk of technologies that can be used to produce biofuels, biopower, and bioproducts. Topic areas include the characterization of municipal solid waste (MSW) to enable production of conversion-ready feedstocks and algae productivity exceeding expectations (APEX). The application process requires a concept paper and a full application. While concept papers must be submitted to DOE by February 1, 2021, the full applications are due on April 5, 2021.


 
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By  Lynn L. Bergeson 

EPA announced on January 5, 2021, that it is reopening the reporting period under the TSCA Inventory notification active-inactive rule where companies identified chemicals that were manufactured, imported, or processed in the United States during the ten-year time period ending on June 21, 2016. As reported in our June 26, 2017, memorandum, “EPA Issues Final TSCA Framework Rules,” the final TSCA Inventory notification (active-inactive) rule established a retrospective electronic notification of chemical substances on the TSCA Inventory that were manufactured (including imported) for nonexempt commercial purposes during the ten-year time period ending on June 21, 2016, with provision to also allow notification by processors. From August 11, 2017, through October 5, 2018, chemical manufacturers and processors provided information on which chemicals were manufactured, imported, or processed in the United States over the past ten years. The reporting period included an opportunity for submitters to assert claims to retain specific chemical identities as confidential business information (CBI). In May 2020, EPA posted an interim list of chemicals expected to lose their CBI status and move to the public portion of the TSCA Inventory. In its January 5, 2021, announcement, EPA states that it has since become aware of “submitter confusion and issues regarding CBI claims” during the initial reporting period. EPA is allowing companies to submit, amend, or withdraw filings under the TSCA Inventory notification (active-inactive) rule to maintain existing CBI claims for specific chemical identity. The reporting period will reopen 30 days after publication in the Federal Register and run for 60 days after that date.


 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On January 6, 2021, EPA issued in final its rule titled “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.” The rule establishes how EPA will consider the availability of dose-response data underlying pivotal science used in its significant regulatory actions and influential scientific information. Under this rule, EPA will give greater consideration to studies where underlying dose-response data are available with sufficient independent validation. The rule also requires EPA to identify and make publicly available the science that serves as a basis for its regulatory decisions and actions at the draft stage to the extent practicable. Peer review required for pivotal science and criteria for the EPA Administrator to exempt certain studies from the rulemaking requirements are also part of the final rule. The rule became effective on January 6, 2021.


 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On December 19, 2020, the Government of Canada’s Department of the Environment published a proposed rule titled Clean Fuel Regulations. The proposed rule addresses Canada’s concerns in achieving its net-zero emissions by 2050 under the Paris Agreement. In an effort to reduce the largest sources of greenhouse gases (GHG), the Clean Fuel Regulations would require liquid fossil fuel primary suppliers to reduce the carbon intensity (CI) of the liquid fossil fuels they produce in and import into Canada from 2016 CI levels by 2.4 g of CO2/megajoule (MJ) in 2022, increasing to 12 g of CO2/MJ in 2030. The proposed rule would also establish a credit market whereby the annual CI reduction requirement could be met via three main categories of credit-creating actions:

  • Actions that reduce the CI of the fossil fuel throughout its life cycle;
  • Supplying low-carbon fuels; and
  • Specified end-use fuel switching in transportation.

The Clean Fuels Regulations would also retain the minimum volumetric requirements of at least five percent low CI fuel content in gasoline and two percent low CI fuel content in diesel fuel and light fuel oil that are currently set out in the federal Renewable Fuels Regulation (RFR). The RFR would be repealed, and parties that are not primary fossil fuel suppliers would be able to participate in the credit market as voluntary credit creators by completing certain actions. Further details are available here.


 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

The Scientific Research Honor Society (Sigma Xi) is accepting nominations until January 31, 2021, for awards that recognize achievements in science or engineering research and communication. Nominations are being accepted for the following awards:

  • Gold Key Award – Presented to an individual who has made contributions to their profession and fostered critical innovations to enhance the health of the research enterprise, cultivate research integrity, and/or promote the public understanding of science.
  • William Procter Prize – Presented to a scientist who has made an outstanding contribution to scientific research and demonstrated an ability to communicate this research to scientists in other disciplines. The award includes a $5,000 honorarium and a $5,000 grant to a young colleague of the recipient’s choice.
  • John P. McGovern Award – Presented to an individual who has made an outstanding contribution to science and society. It includes a $5,000 honorarium, and the individual presents his or her work at Sigma Xi’s annual meeting.
  • Walston Chubb Innovation Award – Designed to honor and promote creativity among scientists and engineers, this award provides a $4,000 honorarium and an invitation to present at Sigma Xi’s annual meeting.
  • Young Investigator Award – Includes a certificate of recognition and a $5,000 honorarium to a young scientist who has made an outstanding contribution to scientific research.
  • Evan Ferguson Award – Presented annually since 2008, this award comes with a plaque of recognition and a lifetime subscription to American Scientist.
  • Bugliarello Prize – Honors an essay, review of research, or analytical article published in American Scientist.
  • Monie Ferst Award – Presented to individuals who promote research through teaching and supervising research students.
  • Honorary Membership – Presented to noted science advocate, top science journalists, and friends of research who have made important contributions to science but are not eligible for Sigma Xi membership.

Details of eligibility and instructions for how to nominate an individual can be found here.


 
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By  Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

Researchers at Swansea University’s Energy Safety Research Institute have developed a new method that produces spheres that have strong capacity for carbon capture and work at a large scale. Described as “[a] fast, green and one-step method for producing porous carbon spheres, which are a vital component for carbon capture technology and for new ways of storing renewable energy,” the method was developed by a research team that adapted an existing method known as chemical vapor deposition (CVD). This adapted method involves the use of heat to apply a coating to a material using pyromellitic acid as both carbon and oxygen source. Research scientists involved in the development of this new method report that the new approach brings certain advantages over existing methods of producing carbon spheres, including:

  • It is alkali-free;
  • It does not need a catalyst to trigger the shaping of the spheres;
  • It uses cheap and safe feedstock that is readily available on the market;
  • There is no need for solvents to purify the material; and
  • It is a rapid and safe procedure.

 
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By Lynn L. Bergeson

On November 9, 2020, the U.S. Department of Energy’s (DOE) Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs office issued topics for its Fiscal Year (FY) 2021 SBIR/STTR Phase I Release 2 Funding Opportunity Announcement (FOA). Participating in the FOA are the following program offices:

  • Office of Cyber Security, Energy Security, and Emergency Response (CESER);
  • Office of Defense Nuclear Nonproliferation (NNSA);
  • Office of Electricity (OE);
  • Office of Environmental Management (EM);
  • Office of Energy Efficiency and Renewable Energy (EERE);
  • Office of Fossil Energy (FE);
  • Office of Fusion Energy Sciences (FES);
  • Office of High Energy Physics (HEP); and
  • Office of Nuclear Energy (NE).

DOE will host a webinar on December 18, 2020, to discuss the FOA and application process and changes to the DOE SBIR and STTR programs.

Additional important dates include:

  • FOA Issued: December 14, 2020;
  • Letter of Intent (LOI) Due Date: January 4 , 2021;
  • Non-responsive LOI Feedback Provided: January 25, 2021;
  • Application Due Date: February 22, 2021;
  • Award Notification Date: May 17, 2021 (subject to change); and
  • Start of Grant Budget Period: June 28, 2021 (subject to change).
Tags: DOE, SBIR, STTR, FOA, Funding

 
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By Lynn L. Bergeson

On November 12, 2020, DOE issued its multi-year Hydrogen Program Plan aimed at providing a strategic framework for its hydrogen research, development, and demonstration (RD&D) efforts. A coordinated departmental effort, the Hydrogen Program focuses on the advancement of affordable production, transport, storage, and use of hydrogen across different economy sectors. Offices involved in this plan include DOE’s EERE, FE, NE, and the Advanced Research Projects Agency-Energy.

Tags: DOE, Hydrogen, EERE

 
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By Lynn L. Bergeson

On November 13, 2020, DOE’s EERE announced that the Co-Optimization of Fuels & Engines (Co-Optima) initiative issued a call for white papers. The Co-Optima initiative focuses on the development of new high-performance fuels that, when combined with advanced combustion approaches, can increase energy efficiency and reduce the carbon footprint. The initiative is seeking white papers to leverage National Laboratory resources and overcome technical challenges to advancing new liquid fuels and blendstocks. Proposals must address specific technical challenges and barriers that Co-Optima researchers can work on to move new fuels closer to market in conjunction with advanced, high-efficiency engines. The call for white papers is a Directed Funding Opportunity (DFO) available for U.S. domestic for-profit or non-profit businesses interested in Co-Optima’s goals and objectives. Foreign entities, including U.S. subsidiaries with a foreign-owned parent company, are also eligible to apply with a waiver request. Approval of the waiver, however, is subject to DOE discretion. All project work must be performed in the U.S.

Application templates are available here and must be submitted via e-mail to .(JavaScript must be enabled to view this email address) by 5:00 p.m. (EST) January 14, 2021. Anticipated final selection decisions and notifications will be released on March 1, 2021, and the project will begin on May 1, 2021.

Four anticipated project awards are expected with $250,000 of Co-Optima National Laboratory assistance over a project duration of 12 to 18 months. Industry partners will fund their own labor, materials, and other expenses, which contribute toward a 20 percent minimum cost-share requirement.


 
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By Lynn L. Bergeson

On November 18, 2020, U.S. Representatives Cheri Bustos (D-IL) and Jim Hagedorn (R-MN) introduced a bipartisan, bicameral legislation that aims to lower greenhouse gas (GHG) emissions and encourage low-carbon fuel production. Titled “The Streamlining Advanced Biofuels Registration Act,” this bill would eliminate existing barriers for biofuels plants to increase production of cellulosic biomass into renewable fuels. Representative Bustos criticized the lack of timely response from the U.S. Environmental Protection Agency (EPA), adding that through this bill, “we can encourage the use of cellulosic biomass in low-carbon, renewable fuel production and continue to create cleaner, more environmentally-friendly fuels.” The legislation would ensure that EPA acts on outstanding applications under the Renewable Fuel Standard (RFS) and compel EPA to accept applications if the fuel could participate in at least one state’s clean transportation program. Biofuels industry stakeholders have demonstrated support for the bill.


 
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By Lynn L. Bergeson

On November 25, 2020, EPA announced the amendment of the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) regulations by extending the submission deadline for 2020 reports. CDR submissions are now due on January 29, 2021. According to EPA, this is the final extension, and it only applies to 2020 submissions. CDR regulations require manufacturers of certain chemical substances included on the TSCA Chemical Substance Inventory to report data on the manufacturing, processing, and use of chemical substances.

To assist chemical manufacturers and processors with submitting CDR data, Bergeson & Campbell, P.C.’s (B&C®) affiliate The Acta Group (Acta®) developed CDR Cross-Check, an ingenious and cost-efficient tool to identify whether a company’s chemicals are subject to CDR and at what reporting threshold. CDR Cross-Check will identify:

  • Whether the chemical is listed as active or inactive;
  • Whether the chemical was subject to specific TSCA regulatory actions in 2016;
  • Whether the chemical is exempt; and
  • What the reporting thresholds are based on the updated data released by EPA on May 29, 2020.

Visit the CDR Cross-Check page on the Acta website for a sample report and information on how to use CDR Cross-Check.

Tags: TSCA, CDR, Deadline

 
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