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.

On March 10, 2015, Senators Tom Udall (D-NM) and David Vitter (R-LA) introduced the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bipartisan bill that would reform the Toxic Substances Control Act (TSCA). The bill has 15 co-sponsors -- seven Democrats and eight Republicans. The bill builds on the proposed Chemical Safety Improvement Act offered by Senator Vitter and the late Senator Frank Lautenberg (D-NJ) in 2013. According to the overview provided on Senator Udall's webpage, the 2015 bill clarifies that cost cannot be a consideration factor in determining chemical safety, provides a definition for "vulnerable populations," and implements specific deadlines for the U.S. Environmental Protection Agency (EPA) in evaluating existing chemicals. The bill attempts to address the most contentious issue surrounding TSCA reform -- state preemption. Under the proposal, state chemical regulations in place prior to January 2015 would be grandfathered. In addition, states would be able to act on chemical restrictions until and unless EPA takes up the same chemical for the same use applications, and can request a waiver to set different regulations than EPA during the safety assessment and final rule. The goal is to have a uniform federal standard for the entire nation, which increases regulatory certainty while still protecting citizens.  See the detailed analysis of the Lautenberg Chemical Safety for the 21st Century Act  prepared by BRAG affiliate Bergeson & Campbell, P.C.


 

On February 25, 2015, the U.S. House of Representatives' Committee on Energy and Commerce's Subcommittees on Energy and Power and Environment and the Economy held a joint hearing on "The Fiscal Year 2016 EPA Budget." During the hearing, both supporters and opponents of the federal Renewable Fuel Standard (RFS) criticized U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy on the Agency's implementation of the program. RFS supporters pointed out that EPA's delay in issuing the 2014 RFS rule in final has compromised the stability of the RFS. RFS opponents argued that the RFS itself is unworkable and that EPA's implementation of the program harmed the refining industry. Members of the Subcommittees also expressed concern that EPA was spending too much time on other policies, including the ozone standard, thus taking away from its implementation of the RFS.

This hearing occurred in the same week that Senators Dianne Feinstein (D-CA) and Pat Toomey (R-PA) introduced the Corn Ethanol Mandate Elimination Act of 2015. The bill would eliminate the corn ethanol requirements under the RFS. The biofuels industry has expressed its strong opposition to this legislation, arguing that eliminating the corn ethanol requirements under the law would destabilize the RFS policy and investment in the entire biofuels industry, including advanced and cellulosic biofuels. In a win for the biofuels industry, this week, U.S. Senate Committee on Environment and Public Works Chair, James Inhofe (R-OK), reportedly expressed doubt that the bill would be considered by his Committee this year because he does not expect to be able to build enough support to pass it.

 
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By Richard E. Engler, Ph.D.

In 2014, the U.S. Environmental Protection Agency (EPA) and American Chemical Society Green Chemistry Institute® (ACS GCI) renewed their Memorandum of Understanding (MOU), continuing the partnership centered on the Presidential Green Chemistry Challenge Award. The award cycle returned to its original schedule with the 2015 ceremony set to coincide with the Green Chemistry & Engineering Conference, as it had until 2013. This year the conference will be held on July 14-16, 2015, in North Bethesda, Maryland. This recommitment between EPA and ACS GCI is an expression of the continued dedication each has to creating opportunities for the growth and development of green chemistry. 2015 is especially significant as it represents the 20th year for the Presidential Green Chemistry Challenge Award. The award ceremony and conference should highlight both the success of years past and the potential of years to come.

 

There are other positive indicators about the direction of green chemistry in the coming year as well. On January 5, 2015, Bergeson & Campbell, P.C. (B&C®) published “Predictions and Outlook for EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) 2015” (The Outlook). It covers the full range of OCSPP issues, including green chemistry and Design for the Environment (DfE).

 

In 2014, Jim Jones, OCSPP’s Assistant Administrator, continued his focus on green chemistry and DfE. Jones visited award winners to gain a deeper understanding of their technologies and businesses. Jones’s engagement in both programs should continue in 2015. DfE is undergoing revitalization in 2015.

 

EPA is expected to reveal the new Safer Product Labeling logo. DfE is also looking to expand its Safer Chemical Ingredients List (SCIL) and is providing new opportunities for DfE partners to be recognized for their efforts.

 

The New Year will also see more interactions between green chemistry and the Toxic Substances Control Act (TSCA). As you may know, manufacturers must submit “premanufacture notices” (PMN) to EPA prior to manufacturing or importing any substance not listed on the TSCA Inventory or otherwise exempt. TSCA allows EPA to review new substances for unreasonable risk to human health or the environment.

 

Most green chemistry technologies are classified as “new” under TSCA rules, so they must clear this hurdle. Some green chemistry technologies have drawbacks in one phase of their lifecycle and benefits in another. For example, a biobased substance may be less toxic to humans, but more toxic to fish relative to the petroleum-based incumbent. The challenge for EPA is how to consider these impacts, both positive and negative, especially relative to existing chemicals in commerce.  Historically, EPA has only focused on the substance itself, its hazard, releases, and exposures, to determine “unreasonable risk.” Biobased chemicals, using waste as a feedstock, and greener production methods present new challenges to EPA as these benefits are upstream of the substance itself.  As discussed in The Outlook, some green chemistry technologies have languished in the new chemicals review process or have been subject to requirements different from those imposed on nearly identical, existing chemicals. To avoid undue delays, some submitters have taken advantage of voluntary pollution prevention (P2) statements in PMNs to clarify the benefits of the novel technology to aid EPA in its decision-making. Even with this additional information, it is not a trivial task for EPA to compare and evaluate the relative risks and benefits at different stages of a chemical’s lifecycle. Novel biobased feedstocks, intermediates, and products will challenge both EPA and industry in 2015.

 

While some aspects of TSCA may be a barrier to new green chemistry technologies, TSCA can also be a driver for change. EPA regulatory action on existing chemicals will provide new drivers for companies to develop and deploy green chemistry. Near the end of 2014, EPA published its update on Work Plan and Action Plan chemicals. In particular, decisions on trichloroethylene, dichloromethane, benzedine dyes, short-chain chlorinated paraffins, phthalates, and long-chain perfluoroalkyl carbonates all present increasingly important targets for green chemistry innovations. Similarly, the California Department of Toxic Substances Control (DTSC) is moving ahead with its actions on priority chemicals and, of course, implementing the Safer Consumer Products Regulations.

 

Information about chemical design may get a boost from the maturation of EPA’s Computation Toxicology tools that allow rapid screening for endocrine disruption. The coming year is likely to also see progress on TSCA reform, which may include provisions relating to green chemistry.

 

While EPA struggles with diminished funding and diminished numbers of senior scientists (mostly through retirement), the fundamental prospects for green chemistry remain sound: There are many problems to solve and many scientists and engineers working to find sustainable ways to solve them. EPA and ACS GCI will continue to be central to supporting and nurturing green chemistry.

 Reprinted by permission from The Nexus Blog, a publication of the ACS Green Chemistry Institute® 

 

 
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On Wednesday, December 10, 2014, the House Committee on Oversight and Government Reform's Subcommittee on Energy Policy, Health Care and Entitlements held a hearing on "Examining EPA's Management of the Renewable Fuel Standard Program." The sole witness was Janet McCabe, Acting Administrator for Air and Radiation at the U.S. Environmental Protection Agency (EPA). A copy of Ms. McCabe's written testimony is available online.

Subcommittee Members on both sides of the aisle sharply criticized EPA on its recent announcement that it is delaying issuing a final 2014 Renewable Fuel Standard (RFS) rule until sometime in 2015. The rule was due to be issued by statute by November 30, 2013. EPA renewed its strong support for the RFS, and explained how it sought public comment on alternative approaches to setting the volume requirements. Comments received have been extensive and divergent, especially in light of drastically reduced gasoline prices and lower consumption, whether and on what basis statutory volumes for renewable fuels should be lowered, and concerns about the ability of the proposed approach to provide progress toward achieving continued progress towards achieving the volumes of renewable fuel targeted by law. EPA intends to take action on the RFSs for 2014-2016 to provide much needed certainty to investors and others. Republican and Democrat Subcommittee Members suggested that EPA's actions on issuing the final rule contributed to instability in the biofuels market, and may be cause for Congressional action to repeal the law, an outcome vehemently opposed by most in the biofuels industry.

 

 

With Republicans recapturing the Senate majority, GOP lawmakers now take the helm of several Senate committees of interest. For the most part, those Republican Senators who were ranking members now move into the chair roles.


Environment and Public Works (EPW) Committee: Senator James Inhofe (R-OK) will take over the EPW reins from Senator Barbara Boxer (D-CA). His committee will have the primary role in amending the Toxic Substances Control Act (TSCA). Senator Inhofe was lauded by the late Senator Frank Lautenberg (D-NJ) for his assistance in working with stakeholders on TSCA reform. In a public statement, Senator Inhofe stated that although TSCA's current risk-based review process protects human health and the environment, he is open to changes to the law "but only if those changes modernize chemical reviews, increase public understanding of the process, and strengthen protections for human health and the environment." He set forth several principles that he believes any TSCA revisions must follow. These are:

* The use of data and methods based on the best available science and risk-based assessment.

* Including cost/benefit considerations for the private-sector and consumers.

* Protecting proprietary business information, as well as information that should be protected for security reasons.

* Prioritizing reviews for existing chemicals.

* Eliminating provisions that encourage litigation or citizen suits.

* Avoiding provisions that compel product substitution.


Senator Inhofe is an unabashed skeptic of climate change and critic of the federal Renewable Fuel Standard (RFS). He has sponsored numerous bills aiming to "rein in" the U.S. Environmental Protection Agency (EPA). He is also likely to be critical of many of EPA's most prominent rules, including those on powerplant emissions, fracking, water quality, and other issues. He will likely be joined by Senate Majority Leader Mitch McConnell (R-KY).


Budget Committee: Senator Jeff Sessions (R-AL) will take over the Budget Committee. He is a fiscal conservative, a budget hawk, and a vocal critic of the Obama Administration's spending policies.


Finance Committee: Senator Orrin Hatch (R-UT) will take the helm of the Finance Committee and will have significant influence on the prospects for major tax and trade reform. He is a conservative politician, but one who has demonstrated the ability and willingness to reach across the aisle to Democrats.


Energy and Natural Resources Committee: Senator Lisa Murkowski (R-AK) takes over this Committee and is most likely to battle federal control of mining and drilling interests.


In the House, Republicans retained control in the mid-term elections, but because of retirements and party-imposed term limits on committee Chairs, more than half a dozen committees will be getting new Chairs. Under House rules, GOP members can only serve three terms as senior members of a committee, unless they are granted a waiver by the Republican Steering Committee. Major House committees of interest expected to get new leaders next year include:


Agriculture Committee: With Oklahoma Representative Frank Lucas term-limited, Representative Michael Conaway (R-TX) is the most likely replacement. Representative Conaway now chairs the Ethics Committee.


Budget Committee: Representative Tom Price (R-GA) is in line to succeed Representative Paul Ryan (R-WI) as Chair of the Budget Committee. Representative Price worked closely with Representative Ryan in assembling prior GOP budgets and he is likely to take a similar approach in crafting this year's budget.


Natural Resources Committee: Representative Rob Bishop (R-UT) is expected to take over this Committee. He has pushed for more oil and gas leases on federal land and has accused the Obama Administration of using the Antiquities Act to designate unilaterally public acreage as national monuments off limits to developers.


Oversight and Government Reform Committee: In a bit of good news for the Obama Administration, Representative Jason Chaffetz (R-UT) is considered the favorite to succeed term-limited Representative Darrell Issa (R-CA). Representative Chaffetz will likely be challenged by Representative Michael Turner (R-OH) and Representative Jim Jordan (R-OH). Representative Chaffetz, who currently chairs the Oversight Committee's Subcommittee on National Security, has led the investigation into security breaches involving the Secret Service, giving him a high-profile. He has a reputation for being less confrontational than Representative Issa and has reached out to Democrats on the panel, including Ranking Member Elijah Cummings (D-MD). Representative Issa has been a major burr under the Obama Administration's saddle, leading investigations into the Internal Revenue Service -- the attacks in Benghazi, Libya, among other topics. Along the way he has alienated not just Democrats but also fellow Republicans with his confrontational and overbearing style. Chaffetz has made it clear he would do things differently. A strong conservative, he is liked by fellow Republicans and viewed as being dogged but not shrill in his committee role.


Ways and Means Committee: Representative Paul Ryan (R-WI) is expected to move from the Budget Committee to become Chair of the House Committee on Ways and Means, which is arguably the most powerful House Committee chairpersonship.
 


 

On August 7, 2014, a group of nine Democratic Senators led by Senator Tom Harkin (D-IA) sent a letter to the EPA Administrator, Gina McCarthy, on the treatment of biogenic carbon emissions from stationary sources. The other eight Senators who signed the letter are: Tim Johnson (D-SD); Heidi Heitkamp (D-ND); Ron Wyden (D-OR); Maria Cantwell (D-WA); Al Franken (D-MN); Patty Murray (D-WA); Joe Donnelly (D-IN); and Amy Klobuchar (D-MN). The letter comes at a time when EPA is working to issue in final a rulemaking providing guidelines for such treatment.


In their letter, the Senators caution that treating biogenic carbon emissions in the same way as fossil fuel emissions could negatively impact the development and commercialization of advanced biofuels, biopower, renewable chemicals, and other industrial biotechnologies. They urge EPA to recognize in its treatment of biogenic carbon emissions that "carbon emissions resulting from the utilization of sustainably-sourced, renewable biomass feedstocks do not result in lasting increases in atmospheric carbon dioxide, and therefore should not be subject to greenhouse gas regulations."


BRAG has previously reported on developments in the biogenic carbon debate. The most recent report is available online.
 


 

On May 15, 2014, the U.S. Senate failed to pass a procedural measure that would have allowed for that body to consider and vote on S. 2260, the "Expiring Provisions Improvement Reform and Efficiency (EXPIRE) Act," the package of tax extenders approved by the Senate Finance Committee in April. The EXPIRE Act includes extensions through December 31, 2015 (and retroactive to January 1, 2014), of the following key biofuels incentives that have expired: the Alternative Fuel Refueling Property Credit; the Second Generation Biofuel Producer Tax Credit; the Special Depreciation Allowance for Second Generation Biofuel Plant Property; the Biodiesel and Renewable Diesel Fuels Credit; and the Alternative Fuel and Alternative Fuel Mixture Excise Tax Credit. A copy of the EXPIRE Act is available online. A summary of the bill is also available online.


The EXPIRE Act has broad bipartisan support among Senators. The vote on cloture to end debate on the bill and pave the way for Senate consideration failed last week because the Senate Republican and Democratic leadership had a fundamental disagreement over whether and which amendments could be offered to the bill. Senate Majority Leader Harry Reid (D-NV) preserved his right to bring the bill up again for consideration. Senator Reid could do so soon if the leaders are able to agree on rules for offering amendments to the bill. The bill is widely expected to be considered later this year, however, during a lame duck session following the November elections. It is important that the Senate passes tax extender legislation that includes energy incentives in order to help ensure they are included in the final bill. The House of Representatives is expected to consider a smaller package of tax extenders that will likely not include the retroactive biofuels incentives so important to the industry.
 


 

On May 20, 2014, the House Committee on Appropriations' Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies (House Agriculture Appropriations Subcommittee) and the Senate Committee on Appropriations' Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies (Senate Agriculture Appropriations Subcommittee) marked up and passed their separate versions of a Fiscal Year (FY) 2015 spending bill for USDA. A copy of the House Agriculture Appropriations Subcommittee's draft bill is available online. A copy of the Senate Agriculture Appropriations Subcommittee's "Mark-up Bill Summary" for its version of the FY 2015 USDA spending bill is available online.


The House Agriculture Appropriations Subcommittee's bill is controversial and includes steep cuts to Farm Bill Energy Title programs recently expanded and provided mandatory funding by the Agricultural Act of 2014 (the 2014 Farm Bill), including to the Biomass Crop Assistance Program and Biorefinery, Renewable Chemical and Biobased Product Manufacturing Assistance Program. Mandatory funding is not usually subject to cuts through the annual appropriations process. The biofuels and renewable chemicals industries are working to ensure mandatory funding for these programs is included in the final FY 2015 USDA spending bill.


The Biobased and Renewable Products Advocacy Group (BRAG™) reported on the significance of the expanded Energy Title programs and mandatory funding for them provided under the 2014 Farm Bill. A copy of that report is available online.
 


 

On March 12, 2014, the House Energy and Commerce Environment and the Economy Subcommittee held a hearing to discuss the Discussion Draft of the Chemicals in Commerce Act (CICA). CICA, which was released last week by Subcommittee Chair John Shimkus (R-IL), is designed to reform the Toxic Substances Control Act (TSCA). The Biobased and Renewable Products and Advocacy Group (BRAG™) reported on the release of CICA. That report is available online.


Eleven witnesses testified at the hearing. Several witnesses were critical of CICA, stating that it offered less protections than those included in S. 1009, the Chemical Safety Improvement Act (CSIA), which is the bipartisan Senate TSCA reform bill introduced last May by the late Senator Frank Lautenberg (D-NJ) and Senator David Vitter (R-LA). Senators Vitter and Tom Udall (D-NM) are currently working to revise S. 1009 to address concerns that have been raised over that bill's level of protection. A detailed summary of the hearing prepared by Bergeson & Campbell, P.C. (B&C®) is available online.
 


 

Nearly 30 Democratic Senators participated in an all-night session from the evening of March 10, 2014, through the morning on March 11, 2014, to highlight the need for action to combat the harmful effects of climate change. This session was the first major act of the Senate Climate Action Task Force, which was formed earlier this year by Senators Barbara Boxer (D-CA) and Sheldon Whitehouse (D-RI) to urge action on the issue. The all-night session was organized by Senator Brian Schatz (D-HI).


 
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