The Biobased and Renewable Products Advocacy Group (BRAG) helps members develop and bring to market their innovative biobased and renewable chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

By Lynn L. Bergeson

On February 25, 2020, the U.S. Patent and Trademark Office (USPTO) announced that nominations are now open for the 2020 National Medal of Technology and Innovation (NMTI) to recognize those who have worked to advance U.S. competitiveness and quality of life and who have strengthened the workforce through technological innovations. The award is presented annually by the President of the United States to leading technological honorees. Applications will be accepted until April 3, 2020, for individuals, teams (up to four individuals), companies, and company divisions that have contributed to the U.S. economic, environmental, and social well-being. Nominees will be considered for up to three consecutive years. Initial selections will be made by the NMTI Nomination Evaluation Committee, which reviews applications and makes recommendations to the U.S. Secretary of Commerce. The committee will then make recommendations to the President for final selection. Further information is available in this recorded webinar.


 

By Lynn L. Bergeson

On February 28, 2020, the U.S. Environmental Protection Agency (EPA) announced that, in support of President Trump’s (R) Executive Order to promote transparency, EPA launched a new guidance portal that provides public access to its guidance documents. According to EPA, the new searchable database will make it easier for the regulated community to find and follow agency guidance. On October 9, 2019, President Trump issued Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, to promote transparency by ensuring that all active guidance documents are made available to the public. The portal provides an indexed database that allows the public to search for documents based on a range of criteria that include date of issuance, general subject matter, and summary of contents. EPA states that prior to the launch of the portal, it conducted an exhaustive review of its current guidance documents and withdrew those documents that it determined to be no longer relevant. The guidance portal also provides a mechanism for the public to request modification or withdrawal of any documents. EPA notes that it uses guidance documents “to clarify existing obligations for interested parties, but not as a vehicle for implementing new, binding requirements on the public.” According to EPA, it will release by August 28, 2020, a regulation that establishes the processes and procedures for issuance of new guidance documents.


 

By Lynn L. Bergeson

Effective March 15, 2020, Madison Le will join the U.S. Environmental Protection Agency’s (EPA) Office of Pollution Prevention and Toxics (OPPT) as Director of the Chemical Control Division (CCD). Ms. Le will replace Acting Director Lynn Vendinello. Ms. Le is currently Director of the Fuels Compliance Policy Center within the Office of Air and Radiation. In that capacity, Ms. Le manages the implementation of EPA’s national fuels programs, including the Renewable Fuel Standard Program, Tier 3 Gasoline, Ultra-Low Sulfur Diesel, and Fuels and Fuel Additives Registration. Prior to working for EPA, Ms. Le worked for California’s Los Angeles County on engineering design projects for municipal solid waste landfills and wastewater treatment plants, including air quality modeling and permitting for stationary and mobile sources. Ms. Le holds an M.S. and B.S. in Environmental Engineering from the University of Southern California.

Tags: EPA, OPPT

 

By Lynn L. Bergeson

Federal enforcement of chemical product laws is alive and well, despite a broadly held misconception to the contrary. We have seen over the past 18 months or so an uptick in federal enforcement under the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Bergeson & Campbell, P.C. (B&C®) writes to alert stakeholders of this fact. B&C believes that this trend will continue in 2020. Check out its memorandum on the topic here.

Tags: TSCA, FIFRA

 

By Lynn L. Bergeson

On January 29, 2020, Congressman Paul D. Tonko (D-NY) and other House Democrats unveiled a five-year, $760 billion investment framework to repair and upgrade the U.S. infrastructure to create jobs while reducing carbon pollution, improving safety, and supporting economic activity. Called the “Moving Forward Framework for the People,” the plan includes measures to increase climate resiliency and put the United States on a path toward zero carbon pollution from transportation. The House Democratic proposal outlines a number of major investments, which include repairs and upgrades to surface transportation, rail and transit systems, airports, ports and harbors, wastewater and drinking water infrastructure, brownfields, and broadband. According to Congressman Tonko’s press release, the proposed infrastructure framework would:

  • Bring existing infrastructure into a state of good repair and enable the completion of critical projects through long-term, sustainable funding;
  • Set a path toward zero carbon pollution from the transportation sector, creating jobs, protecting our natural resources, promoting environmental justice, and increasing resiliency to climate change;
  • Ensure a transportation system that is green, affordable, reliable, and efficient and provide access to jobs;
  • Provide safe, clean, and affordable water and wastewater services;
  • Prioritize the safety of the traveling public;
  • Help combat climate change by creating well-paying jobs in clean energy, investing in energy efficiency, and reducing GHG pollution;
  • Expand broadband Internet access, including adoption for unserved and underserved rural, suburban, and urban communities;
  • Modernize 9-1-1 public safety networks;
  • Create family-wage jobs using the Davis-Bacon Act and other strong worker protections; and
  • Support U.S. industries, including steel and manufacturing, through strong Buy America protections.

 

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

On January 13, 2020, U.S. Representative Cindy Axne announced that the Government Accountability Office (GAO) has responded to a bipartisan letter submitted by members of the House Biofuels Caucus (HBC) requesting an investigation into misuse of small refinery exemptions (SREs) by the U.S. Environmental Protection Agency (EPA). Submitted in August 2019, the bipartisan letter requested that GAO examine EPA’s review and approval of SRE waivers under the Renewable Fuel Standard (RFS). HBC’s letter also included a request for inspection of the U.S. Department of Energy’s (DOE) viability scores for SREs reviewed in 2018. HBC’s concerns were mostly related to the economic consequences to rural communities due to the exemption of approximately four billion gallons of fuel from the RFS in 2018. In addition to the aforementioned requests, HBC members asked that GAO also consider the following questions:

  • Has DOE changed the criteria, the interpretation of the criteria, the methodology, or any other significant aspect of how it makes its recommendations to EPA for SREs?
     
  • Other than the viability score provided by DOE, what other factors are being considered by EPA in awarding SRE waivers? How has this changed since the previous Administration?
     
  • Since the development of DOE’s 2011 methodology, what percentage of applications that received a disqualifying viability score from the DOE were granted?
     
  • How many times has DOE recommended a partial waiver for a refinery?
     
  • Has EPA granted a partial waiver?
     
  • Does EPA or DOE consider the economic viability of the parent refiner company when considering an application from an individual refinery?
     
  • Does DOE take Renewable Identification Numbers (RIN) into account when assessing relief petitions?

On January 10, 2020, GAO responded to the bipartisan request, agreeing to review matters related to the approval of SRE waivers and stating that it will begin its work shortly. Mark E. Gaffigan, Managing Director of GAO’s Natural Resources and Environment, and his staff will be in charge of the investigation.

In August 2019, Axne had also submitted a letter to EPA’s Acting Inspector General (IG), Charles Sheehan, requesting an investigation of this matter. In its response letter to HBC, GAO stated that it will be in contact with the cognizant IG’s office to ensure that efforts are not duplicated.


 

By Lynn L. Bergeson

On December 9, 2019, the Sustainable Chemistry Research and Development Act of 2019 (H.R. 2051) was passed by the House of Representatives. H.R. 2051 establishes an interagency working group (IWG) led by the Office of Science and Technology Policy to coordinate Federal programs and activities in support of sustainable chemistry. The IWG will develop a roadmap for sustainable chemistry with a framework of attributes characterizing sustainable chemistry, assess the state of sustainable chemistry in the United States, and identify methods by which federal agencies can incentivize sustainable chemistry activities, challenges to sustainable chemistry progress, and opportunities for expanding federal sustainable chemistry efforts. On December 10, 2019, the bill was received in the Senate, read twice, and referred to the Committee on Commerce, Science, and Transportation.


 

By Lynn L. Bergeson

On December 9, 2019, 22 Senate Democrats released a letter supporting the expansion of green energy tax credits. This letter was drafted in response to the Growing Renewable Energy and Efficiency Now (GREEN) Act discussion draft that was circulated in the U.S. House of Representatives on November 19, 2019. The Senators agree with the priorities of the GREEN Act and pledge to similarly prioritize and include:

  • Offshore Wind Investment Tax Credit,
     
  • Storage Investment Tax Credit,
     
  • Solar and Clean Energy Investment Tax Credit Extension,
     
  • Energy Efficiency Tax Credit,
     
  • Clean Vehicles, and
     
  • Onshore Wind.
     

 

By Lynn L. Bergeson

On November 13, 2019, at 10:00 a.m. (EST), the House Committee on Science, Space, and Technology will hold a hearing on “Strengthening Transparency or Silencing Science? The Future of Science in EPA Rulemaking.” The Committee will hear from the following witnesses:

Panel 1

  • Dr. Jennifer Orme-Zavaleta, Principal Deputy Assistant Administrator for Science, U.S. Environmental Protection Agency (EPA) Office of Research and Development (ORD); EPA Science Advisor.
     

Panel 2

  • Dr. Linda S. Birnbaum, Scientist Emeritus, National Institute of Environmental Health Sciences (NIEHS); Director of NIEHS, 2009-2019;
     
  • Dr. Mary B. Rice, Assistant Professor of Medicine, Harvard Medical School; Pulmonary and Critical Care Physician, Beth Israel Deaconess Medical Center;
     
  • Dr. David Allison, Dean, School of Public Health, Indiana University-Bloomington; Member, “Reproducibility and Replicability in Science” Committee, The National Academies of Sciences, Engineering, and Medicine; and
     
  • Dr. Todd Sherer, Chief Executive Officer (CEO), The Michael J. Fox Foundation for Parkinson’s Research.
     

 

By Lynn L. Bergeson

On October 17, 2019, the House Committee on Science, Space, and Technology unanimously approved the Sustainable Chemistry Research and Development Act (H.R. 2051), a companion bill to legislation introduced in the Senate by Senators Chris Coons (D-DE), Susan Collins (R-ME), Amy Klobuchar (D-MN), and Shelley Moore Capito (R-WV). Representative Dan Lipinski (D-IL) introduced the House bill on April 3, 2019. It is co-sponsored by Representative John Moolenaar (R-MI). The bill is intended to improve coordination of federal activities, including research and development of more sustainable chemicals, processes, and systems, by establishing a coordinating entity under the National Science and Technology Council within the Office of Science and Technology Policy. The legislation would allow the agencies involved in this entity to work, in consultation with qualified stakeholders, to assess the state of sustainable chemistry in the United States and encourage the validation of tools for assessment of sustainable chemistry processes or products. The agencies would include the U.S. Environmental Protection Agency (EPA), the National Institute of Standards and Technology, the National Science Foundation, the Department of Energy, the Department of Agriculture, the Department of Defense, the National Institutes of Health, the Centers for Disease Control and Prevention, the Food and Drug Administration, and other related federal agencies, as appropriate. The bill also supports improved education and training in sustainable chemistry.


 
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