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 November 20, 2019, the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) announced a public meeting to engage with stakeholders interested on the implementation of the Toxic Substances Control Act (TSCA) New Chemicals Program. The meeting will be held on December 10, 2019, from 10:00 a.m. to 3:00 p.m. (EST), and will include:

  • An overview of EPA’s updated “Working Approach” document that builds on EPA’s “New Chemicals Decision Making Framework: Working Approach to Making Determinations under Section 5 of TSCA”;
     
  • A demonstration of how EPA uses key concepts in the Working Approach to reach certain conclusions and/or make determinations under TSCA Section 5(a)(3) using case examples;
     
  • An update on confidential business information (CBI) process improvements and clarifications; and
     
  • A discussion of EPA’s ongoing efforts and progress to increase transparency.

During the meeting, EPA will provide an opportunity for stakeholders to provide input on the topics mentioned above. Feedback can also be submitted via the docket on or prior to January 24, 2020.

By the end of 2019, EPA expects to make the “Working Approach” document available for written public comments


 

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 September 23, 2019, the U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) announced that it plans to begin fieldwork on EPA’s Safer Choice program. According to OIG, its objectives are to identify and assess the controls that EPA has in place to verify that the Safer Choice program meets its goals and achieves quality standards through its product qualification, renewal, and required audit process. OIG states that Safer Choice “is a voluntary labeling program that helps consumers and commercial buyers find chemical-based products that are safer for human health and the environment.” OIG plans to conduct work at headquarters and at various third-party assessor and auditor locations. It will use applicable generally accepted government auditing standards in conducting its audit. The anticipated benefits of the audit “are reducing the use of chemicals of concern and empowering consumers to protect their health.”


 

By Lynn L. Bergeson

On October 4, 2019, U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, and U.S. Department of Agriculture (USDA) Secretary, Sonny Perdue, announced President Trump’s negotiated agreement on the Renewable Fuel Standard (RFS).  Under the agreement, EPA and USDA will undertake the following actions:

  • In a forthcoming supplemental notice building off the recently proposed 2020 Renewable Volume Standards and the Biomass-Based Diesel Volume for 2021, EPA will propose and request public comment on expanding biofuel requirements beginning in 2020.
    • EPA will seek comment on actions to ensure that more than 15 billion gallons of conventional ethanol be blended into the nation’s fuel supply beginning in 2020, and that the volume obligation for biomass-based diesel is met.  This will include accounting for relief expected to be provided for small refineries.
       
    • EPA intends to take final action on this front later this year.
       
    • In the most recent compliance year, EPA granted 31 small refinery exemptions.
       
  • Building on the President’s earlier decision to allow year-round sales of E15, EPA will initiate a rulemaking process to streamline labeling and remove other barriers to the sale of E15.
     
  • EPA will continue to evaluate options for [renewable identification number] RIN market transparency and reform.
     
  • USDA will seek opportunities through the budget process to consider infrastructure projects to facilitate higher biofuel blends.
     
  • The Administration will continue to work to address ethanol and biodiesel trade issues.
EPA Administrator Wheeler commended Trump’s leadership in this matter, stating that this agreement continues to promote domestic ethanol and biodiesel production in support of U.S. farmers.  In addition, the agreement, according to USDA Secretary Perdue, found a way to pursue policy that promotes economic growth and energy security. A number of other elected officials also applauded Trump’s agreement.
Tags: RFS, Biofuel, EPA

 

By Lynn L. Bergeson

On September 9, 2019, the U.S. Environmental Protection Agency (EPA) announced an update to its Fiscal Year (FY) 2018-2022 Strategic Plan. According to EPA’s announcement, the only part of the plan that has been modified is its language of the strategic goals. Aiming to better reflect EPA’s environmental and policy goals, EPA Administrator Andrew Wheeler stated that this “update helps us [EPA] more clearly articulate our goals and commitment to providing greater regulatory certainty to states, tribes, and local governments.” The update includes three updated goal statements as follows:

  • Goal 1: A Cleaner, Healthier Environment -- Deliver a cleaner, safer, and healthier environment for all Americans and future generations by carrying out the Agency’s core mission.
  • Goal 2: More Effective Partnerships -- Provide certainty to states, localities, tribal nations, and the regulated community in carrying out shared responsibilities and communicating results to all Americans.
  • Goal 3: Greater Certainty, Compliance, and Effectiveness -- Increase certainty, compliance, and effectiveness by applying the rule of law to achieve more efficient and effective agency operations, service delivery, and regulatory relief.”

 

By Lynn L. Bergeson

On August 27, 2019, the U.S. Environmental Protection Agency (EPA) announced via the Federal Register, proposed revisions to its pesticide tolerance crop grouping regulations. These regulations allow the establishment of tolerances for multiple related crops based on data from a representative set of crops. EPA is proposing the revision of one commodity definition and the addition of three new commodity definitions. In addition, EPA’s proposal includes an amendment to the herbs and spices crop group currently provided in Crop Group 19. The crops in current Crop Group 19: Herbs and Spices Group will be separated into two new crop groups: Crop Group 25: Herb Group and Crop Group 26: Spice Group. These revisions aim to increase the utility and benefit of the crop grouping system for producers and other commercial agriculture stakeholders. Over the next several years, a series of crop group updates is expected. Comments are due on October 28, 2019.

Tags: EPA, Pesticide

 

By Lynn L. Bergeson

On August 21, 2019, Iowa Democratic Representative Cindy Axne asked the U.S. Environmental Protection Agency’s (EPA) Inspector General (IG) to investigate how EPA decided to grant the exemptions from the Renewable Fuel Standard (RFS) requested by oil refiners. EPA approved 31 petitions for waivers from the 2018 requirements.  Lawmakers are not pleased at what appears to be EPA favoring the oil industry. Hence, Representative Axne’s call for an IG investigation into how EPA decided to expand the number of waivers it issued since President Trump came into office. Representative Axne held a press conference on August 21, 2019, at Southwest Iowa Renewable Energy, an ethanol producer in Iowa.  This is the same plant where Trump touted his action expanding sales of 15 percent ethanol.
 
According to Reuters, Trump is seeking to mollify corn farmers who are incensed over the exemptions. He personally approved EPA’s decision to go ahead with the waivers, but in a cabinet meeting, Trump told his staff to figure out a way to pacify the farmers.  Alarmingly, and according to a refinery industry source, the President also asked EPA Administrator Andrew Wheeler if he could take the exemptions back; he was told he could not.
 
Citing data from the Energy Information Administration (EIA), EPA stated the United States had been setting records for both ethanol production and exports. “There is zero evidence that EPA’s Congressionally mandated small refinery exemption program, which provides regulatory relief to small refineries around the country, has had any negative impact on domestic corn ethanol producers,” EPA said in a statement. Nonetheless, POET, the largest U.S. ethanol producer, has idled an Indiana plant due to the waivers. “Our industry invested billions of dollars based on the belief that oil could not restrict access to the market and EPA would stand behind the intent of the Renewable Fuel Standard,” POET CEO Jeff Broin said in a statement. “Unfortunately, the oil industry is manipulating the EPA and is now using the RFS to destroy demand for biofuels.”

Tags: EPA, RFS, Biofuel

 

By Lynn L. Bergeson

On August 9, 2019, the U.S. Environmental Protection Agency (EPA) published a report on its compliance with the law titled EPA Exceeded the Deregulatory Goals of Executive Order 13771. Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, includes regulatory savings goals for FYs 2017 and 2018, EPA’s deregulatory actions, and its compliance with the Office of Management and Budget’s (OMB) goal-setting requirements. EO 13771 was issued to manage costs associated with existing and new regulations established by federal agencies. Commonly referred to as the “two-for-one” EO, it required that “for every one new regulation issued, at least two prior regulations be identified for elimination.” The report addresses EPA’s regulatory compliance with the aforementioned EO, stating that “in FYs 2017 and 2018, the EPA exceeded its deregulatory expectations” and exceeded the savings goal as well. EPA clearly adds in the report that it did not develop internal guidance or management controls to implement the EO. Instead, EPA relied solely on OMB guidance. In the report, EPA recommends the enhancement of transparency regarding EO 13771 decision-making and outreach.

Tags: EPA, OIG

 

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

On July 25, 2019, Bergeson & Campbell, P.C. (B&C®) hosted a webinar titled “New TSCA at 3: Key Implementation Issues” led by B&C’s Managing Partner, Lynn L. Bergeson. Webinar speakers included the U.S. Environmental Protection Agency’s (EPA) Assistant Administrator, Alexandra Dapolito Dunn, and B&C’s Director of Chemistry and former EPA staff, Richard E. Engler, Ph.D. Assistant Administrator Dunn’s presentation outlined EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) accomplishments and priorities three years after the amendment of the Toxic Substances Control Act (TSCA). Some of the most recent accomplishments highlighted by Assistant Administrator Dunn included OCSPP’s update to the TSCA Chemical Substance Inventory in designating substances as “active” in commerce, the selection of the first 40 chemicals for prioritization, and consumer protection measures, among others. In addition, Dunn also highlighted OCSPP’s priorities for the future implementation of TSCA:

  • Publication of the draft dossiers for substances designated as high- and low-priority in the Federal Register for public comment expected as follows:
     
    • Early August 2019, for low-priority substances; and
       
    • End of August 2019, for high-priority substances;
       
  • Initiation of the risk evaluations on the 20 high-priority chemicals and designation of the 20 low-priority chemicals by December 22, 2019; and
     
  • Issue of draft scopes for public comment prior to issuing statutorily required final scopes six months after initiating the risk evaluation.

Assistant Administrator Dunn’s remarks also included EPA’s efforts for increased transparency through the publishing of information about new chemicals’ TSCA Confidential Business Information (CBI) claim reviews, which began in early July 2019. Bergeson and Engler commended Dunn’s efforts in implementing TSCA, and especially EPA’s efforts in increasing new chemical transparency. Engler urged businesses submitting new chemical notices to EPA to review carefully its submission prior to providing it to EPA to ensure that no CBI is made publicly available when new chemical notices are published. Following these discussions, questions from webinar attendees were accepted until the very last minute of the webinar. The full recording of the webinar can be accessed here.

Tags: EPA, TSCA, Webinar

 

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

On July 31, 2019, EPA held a public hearing in Ypsilanti, MI, to obtain stakeholders’ input on its proposed rule to set Renewable Fuel Standard (RFS) 2020 renewable volume obligations (RVO) and 2021 biomass-based diesel volume. Among the various stakeholders providing oral statements to EPA were representatives from Growth Energy, the National Corn Growers Association (NCGA), the Renewable Fuels Association (RFA), Hero BX, and the National Biodiesel Board (NBB). Most of the oral comments provided were in opposition to the proposed rule. Industry representatives highly critized the proposed rule, stating that the RVOs proposed were unreasonable and would negatively impact economic growth through demand destruction and job losses. Many stakeholders also expressed disappointment that, in its proposed rule, EPA failed to account for approved Small Refinery Exemptions (SRE) granted. In agreement with other stakeholders’ comments, Growth Energy’s Vice President of Regulatory Affairs, Chris Bliley, stated that progress made thus far under the RFS Program is being threatened by this proposal. Bliley also added that too many exemptions have been granted in secrecy by EPA. Criticism was also made regarding compliance costs and its negative impact on jobs should this rule be approved. Tim Keaveney, Executive Vice President of Business Development at Hero BX, urged EPA to raise the RVOs for biodiesel to enable further industry growth. Overall, there seemed to be a general agreement that the proposed rule betrays President Trump’s commitment to maintaining the RFS Program.

Tags: EPA, RVO, RFS, Biofuel

 
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