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.

By Lynn L. Bergeson 

On February 1, 2021, the U.S. District Court for the District of Montana granted the U.S. Environmental Protection Agency’s (EPA) January 31, 2021, unopposed motion to vacate and remand its January 6, 2021, final rule on “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” (86 Fed. Reg. 469). EDF v. EPA, No. 4:21-cv-03-BMM. On January 11, 2021, the Environmental Defense Fund (EDF), Montana Environmental Information Center (MEIC), and Citizens for Clean Energy (CCE) filed suit against EPA, claiming that the January 6, 2021, final rule was unlawful and that EPA’s decision to make the final rule effective on publication was unlawful. On January 27, 2021, the court granted summary judgment to the plaintiffs, finding that EPA did not provide good cause to exempt the final rule from the Administrative Procedure Act’s (APA) 30-day notice requirement. The court stated that “EPA’s decision to make the Final Rule immediately effective on publication was ‘arbitrary, capricious’ and ‘otherwise not in accordance with law.’” In its January 31, 2021, motion, EPA states based on the court’s conclusion that the final rule constitutes a substantive rule and that EPA “lacked authorization to promulgate the rule pursuant to its housekeeping authority.” According to EPA, where EPA lacked the authority to promulgate the final rule, “remand without vacatur would serve no useful purpose because EPA would not be able to cure that defect on remand.” EPA notes that because the final rule was in effect for less than a month, and it had not applied the rule in any circumstance while the rule was in effect, “there would be no disruptive consequences in remanding and vacating the rule.”

Prior to EPA’s motion to vacate and remand the final rule, on January 20, 2021, President Biden signed an Executive Order (EO) on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. According to the EO, it is the policy of the Biden Administration “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.” The EO directs all executive departments and agencies to review immediately and, as appropriate and consistent with applicable law, take action to address the promulgation of federal regulations and other actions during the Trump Administration that conflict with the Biden Administration’s national objectives, and to commence work immediately to confront the climate crisis. The EO calls for the heads of all agencies to review immediately “all existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to,” the Biden Administration’s policy. For any identified actions, the EO directs the heads of agencies to “consider suspending, revising, or rescinding the agency actions.” In addition, for certain specified agency actions, the EO states that the head of the relevant agency “shall consider publishing for notice and comment a proposed rule suspending, revising, or rescinding the agency action within the time frame specified.” The specified agency actions include EPA’s January 6, 2021, final rule on “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.”

As reported in our January 11, 2021, memorandum, the origin of EPA’s January 6, 2021, final rule is rooted in legislative proposals more clearly intended to challenge important regulatory requirements, particularly related to EPA’s air program. We predicted that the final rule would likely be among the first items subject to reversal or “clarifying” guidance making it consistent with previously established science policies (see Bergeson & Campbell, P.C.’s (B&C®) Forecast 2021 memo). With Democratic control of both houses of Congress, there might also be attempts to repeal the rule via action under the Congressional Review Act (CRA) of recently promulgated regulations.


 

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

On January 19, 2021, the U.S. Department of Energy (DOE) released its Plastics Innovation Challenge Draft Roadmap (Draft Roadmap) alongside a Request for Information (RFI) seeking stakeholder input on the draft document. The Plastics Innovation Challenge is a DOE program focused on accelerating innovations in energy-efficient plastic recycling technologies. The aim of the Plastics Innovation Challenge is to make domestic processing of plastic waste energy efficient and economically viable, develop new and improved plastic materials lacking the same end-of-life concerns as incumbent materials, and to reduce plastic waste accumulation. Based on these aims, the Plastics Innovation Challenge has outlined four strategic goals within its scope:

  • Deconstruction: Develop biological and chemical methods for deconstructing plastic wastes into useful chemicals;
     
  • Upcycling: Develop technologies to upcycle waste chemical streams into higher value products;
     
  • Recycle by Design: Design new, renewable plastics and bioplastics that are easily upcycled and can be manufactured domestically at scale; and
     
  • Scale and Deployment: Support an energy and material-efficient domestic plastics supply chain.

The Draft Roadmap, therefore, identifies key research needs and opportunities for DOE-sponsored research and development (R&D). It also identifies challenges and opportunities across thermal, chemical, biological, and physical recycling and upcycling methods, as well as material design strategies for recyclability. According to DOE, the Draft Roadmap additionally:

  • Provides an overview of the plastic waste problem;
     
  • Identifies the initiative’s 2030 vision, mission, strategic goals, and objectives;
     
  • Details challenges and opportunities identified by previous DOE activities;
     
  • Lays out key research directions;
     
  • Delivers an outline of current DOE activities, capabilities and coordination; and
     
  • Describes targets for each research area.

The Draft Roadmap aims to guide DOE efforts to meet the Plastics Innovation Challenge goals. The purpose of DOE’s RFI on the Draft Roadmap, therefore, is to solicit feedback from stakeholders to ensure the road toward the Plastics Innovation Challenge 2030 goals is clear and well positioned. Responses to the RFI are due to DOE by March 1, 2021.


 

By Lynn L. Bergeson 

On January 13, 2021, DOE’s Office of Energy Efficiency and Renewable Energy (EERE) announced the availability of $123.6 million in funding and $44.7 million of cost share available for 46 projects to stimulate technology innovation, improve energy productivity of American manufacturing, and enable the manufacturing of cutting-edge products in the United States. The 46 projects that will be selected under this funding opportunity announcement will focus in three areas to improve energy efficiency in energy-intensive processes:

  • Efficiency improvements in advanced manufacturing processes;
     
  • Efficiency improvements in chemical manufacturing; and
     
  • Connected, flexible, and efficient manufacturing facilities, products, and energy systems.

Additional information is available here.

Tags: DOE, EERE, Funding

 

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

On January 27, 2021, U.S. President Biden signed an “Executive Order on Tackling the Climate Crisis at Home and Abroad,” which established a National Climate Task Force (Task Force) and puts the climate crisis at the forefront of U.S. domestic and foreign policy. Highlighting the urgency in addressing the climate crisis, this EO requires short-term global reductions of greenhouse gas (GHG) emissions and net-zero emissions by 2050 or before. Under the EO, the United States has rejoined the Paris Agreement and will begin implementing its three overarching goals:

  1. A safe global temperature;
     
  2. Increased resilience; and
     
  3. Financial goals aligned with a pathway toward low GHG emissions and climate-resilient development.

The EO also includes a provision (Section 216(b)(i)) stating that the Secretary of Agriculture must initiate efforts in the first 60 days, to obtain input from Tribes, farmers, forest owners, conservation groups, and other stakeholders on how to maximize the use of different U.S. Department of Agriculture (USDA) programs and those of other authorities. Input on how to encourage the voluntary adoption of climate-smart agricultural and forestry practices will also be welcome. The aim of this provision is to achieve additional measurable and verifiable carbon reductions and sequestration that source sustainable bioproducts and biofuels. The input received must be submitted to the Task Force for review within 90 days of the date of the EO, including recommendations for an agricultural and forestry climate strategy. This EO may play a key role for the biobased products and biofuels industry.


 

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

EPA, on January 15, 2021, issued a proposed rule to modify certain compliance dates under the Renewable Fuel Standard (RFS). The proposed deadline extension for the 2019 compliance year and the associated deadline for submission of attest engagement reports for the 2019 compliance year for small refineries are as follows: November 30, 2021, and June 1, 2022, respectively. The second extension would be for the 2020 compliance year and the associated deadline for submission of attest engagement reports for obligated parties and Renewable Identification Number (RIN)-generating renewable fuel producers and importers, among other parties holding RINs. The new deadlines for these would be January 31, 2022, and June 1, 2022, respectively.

Comments on the proposed rule must be submitted by March 11, 2021. A virtual public hearing will take place on February 9, 2021, to discuss questions and concerns about the proposed rule.


 

By  Lynn L. Bergeson 

On January 11, 2021, EPA published a proposed rule that would amend the 2018 Toxic Substances Control Act (TSCA) fees rule. 86 Fed. Reg. 1890. Under TSCA, EPA collects fees from chemical manufacturers and processors to help fund implementation and to ensure that public health and the environment continue to be protected. TSCA requires EPA to review its fees every three years and, after consulting with parties potentially subject to the fees, to adjust the fees if necessary. The proposed rule describes the proposed modifications to the TSCA fees and fee categories for fiscal years 2022, 2023, and 2024 and explains the methodology by which these TSCA fees were determined. The proposed updates include:

  • Regarding EPA-initiated risk evaluations, narrowing the scope of the TSCA fees rule by exempting from the requirement to pay fees importers of articles containing a chemical substance, companies that produce a chemical as a byproduct or manufacture or import as an impurity, companies that manufacture or import a chemical in de minimis amounts, companies that manufacture or import chemicals solely for R&D purposes, and companies that produce a chemical as a non-isolated intermediate;
     
  • 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 (MRRE); and
     
  • Adding three new fee categories, two associated with new chemical activities and one associated with test orders.
     

Comments are due February 25, 2021. More information is available in our December 30, 2020, memorandum, “EPA Intends Proposed Rule to Increase Flexibility and Reduce Burdens under TSCA Fees Program.

Tags: TSCA, Fees

 

By   Lynn L. Bergeson 

EPA announced on January 8, 2021, that it released an updated and improved version of OncoLogic™, a system used to evaluate a chemical’s potential to cause cancer. EPA states that, in partnership with the Organization for Economic Cooperation and Development (OECD), it developed “a more user-friendly version of the most widely used piece of this system, greatly expanding its usability across the agency and the scientific community.” According to EPA, the updated module (version 9) is used to analyze organic chemicals, the largest group of chemicals contained in this tool. It features:

  • A streamlined interface that does not require expert knowledge to navigate;
     
  • A standardized reporting format that allows users to view and export results quickly; and
     
  • Increased transparency in the science behind the predictions provided by the model.

EPA notes that OncoLogic™ is one of many publicly available assessment methods, databases, and predictive tools it developed to estimate hazard to humans and the environment, particularly in the absence of test data. According to EPA, these tools and models support it in implementing programs and regulations, such as TSCA, and help external users assess and manage chemical risks. EPA states that version 8.0, which continues to include modules for fibers, metals, and polymers, will remain available to the public.


 

By   Lynn L. Bergeson 

On January 12, 2021, EPA and the Occupational Safety and Health Administration (OSHA) announced a memorandum of understanding (MOU) that advances collaboration and communication on EPA’s review of new chemicals under TSCA. EPA states that the MOU provides a framework for coordination and communication between the two agencies on exposure to new chemicals in the workplace and will help achieve the agencies’ shared goal of ensuring workers are protected from potential health and environmental risks. As required by TSCA, EPA and OSHA are collaborating on workplace exposures as part of EPA’s review of new chemicals. The MOU formalizes coordination efforts that EPA and OSHA have already implemented and provides a framework for additional opportunities for collaboration. Highlights of the MOU include:

  • Establishing designated staff and management points of contact from each agency to discuss and resolve workplace exposure issues related to EPA’s review of new chemicals;
     
  • Providing OSHA with regular updates on EPA’s new chemical determinations, including any necessary worker protection identified during EPA’s review; and
     
  • Documenting EPA’s role in identifying and notifying OSHA of the need for formal consultation on EPA’s review of new chemicals.

More information will be available in a forthcoming memorandum that will be posted on our website.

Tags: EPA, OSHA, MOU

 

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

On January 19, 2021, EPA issued a request for comment on petitions submitted in 2020 for a waiver of the RFS obligations that apply to 2019 and 2020. The petitions argue that recent events warrant EPA exercising its general waiver authority on the basis of severe economic harm. In late March 2020, a group of small refineries requested a waiver of the 2019 and 2020 RFS obligations. In April 2020, Governors of several states submitted three petitions for waivers of the nationwide volumes. Under the Clean Air Act (CAA), EPA is granted the discretion to waive the requirements of the RFS program in whole or in part if the EPA Administrator determines, after a notice and comment, that the implementation of the applicable annual volume requirements would severely harm the economy or environment of a state, region, or the United States. Comments on the aforementioned petitions are due on February 18, 2021.


 

By   Lynn L. Bergeson 

Dan Utech, Incoming Chief of Staff for EPA, announced to EPA on January 21, 2021, that until Michael Regan, Secretary of the North Carolina Department of Environmental Quality, is confirmed as EPA Administrator, Jane Nishida will serve as Acting Administrator. According to Utech, EPA will be guided by science as it moves to achieve these goals and address other threats to public health and the environment.

Utech states that Biden also signed an Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government. In addition to providing a framework for advancing equity, it revokes Executive Order 13950, “Combating Race and Sex Stereotyping.”

Utech’s announcement includes the following updated list of current and acting leaders, as well as a list of the incoming appointees who onboarded this week.

Current and Acting Leadership

  • Acting Administrator: Jane Nishida
  • Office of the Chief Financial Officer (OCFO): David Bloom
  • Office of Air and Radiation (OAR): Joseph Goffman
  • Office of Water (OW): Radhika Fox
  • Office of Land and Emergency Management (OLEM): Barry Breen
  • Office of Chemical Safety and Pollution Prevention (OCSPP): Michal Ilana Freedhoff (as of January 25, 2021)
  • Office of Research and Development (ORD): Jennifer Orme-Zavaleta
  • Office of General Counsel (OGC): Melissa Hoffer
  • Office of Enforcement and Compliance Assurance (OECA): Larry Starfield
  • Office of International and Tribal Affairs (OITA): Mark Kasman
  • Office of Mission Support (OMS): Donna Vizian
  • Office of Policy (OP): Victoria Arroyo
  • Office of Congressional and Intergovernmental Relations (OCIR): Robin Richardson
  • Office of Public Engagement and Environmental Education (OPEEE): Rosemary Enobakhare
  • Office of Public Affairs (OPA): Lindsay Hamilton
  • Region 1: Deb Szaro
  • Region 2: Walter Mugdan
  • Region 3: Diana Esher
  • Region 4: John Blevins
  • Region 5: Cheryl Newton
  • Region 6: David Gray
  • Region 7: Ed Chu
  • Region 8: Deb Thomas
  • Region 9: Deb Jordan
  • Region 10: Michelle Pirzadeh

Members of the incoming EPA leadership team who onboarded this week:

  • Radha Adhar, Deputy Associate Administrator for Congressional Affairs;
  • Victoria Arroyo, Associate Administrator for Policy;
  • Tomás Elias Carbonell, Deputy Assistant Administrator for Stationary Sources, OAR;
  • Alison Cassady, Deputy Chief of Staff for Policy;
  • Dimple Chaudhary, Deputy General Counsel for Nationwide Resource Protection Programs;
  • Rosemary Enobakhare, Associate Administrator for Public Engagement and Environmental Education;
  • Philip Fine, Principal Deputy Associate Administrator for Policy;
  • Radhika Fox, Principal Deputy Assistant Administrator, OW;
  • Michal Ilana Freedhoff, Principal Deputy Assistant Administrator for Chemical Safety and Pollution Prevention;
  • Joseph Goffman, Principal Deputy Assistant Administrator, OAR;
  • Lindsay Hamilton, Associate Administrator for Public Affairs;
  • Sinceré Harris, White House Liaison;
  • Melissa Hoffer, Principal Deputy General Counsel;
  • Casey Katims, Deputy Associate Administrator for Intergovernmental Affairs; and
  • John Lucey, Special Assistant to the Administrator.
     

 
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