Biobased Products News and Policy Report – Update from Bergeson & Campbell, P.C.

Biobased Products News and Policy Report

April 2, 2020

Federal

EPA Requests SAB And SAB Standing Committee Nominations

On April 1, 2020, the U.S. Environmental Protection Agency (EPA) announced that it is now accepting nominations of scientific experts to be considered for appointment to its Science Advisory Board (SAB) and four SAB standing committees. EPA is seeking candidates from a wide range of disciplines including analytical chemistry, forestry, modeling, toxicology, and benefit-cost analysis, among many others. The four SAB standing committees seeking experts are:

  • The Agricultural Science Committee (ASC) – It provides advice to the chartered SAB on matters that have been determined to have a significant direct impact on farming and agriculture-related industries;
  • The Chemical Assessment Advisory Committee (CAAC) – It provides advice through the chartered SAB regarding selected toxicological reviews of environmental chemicals;
  • The Drinking Water Committee (DWC) – It provides advice on the scientific and technical aspects of EPA’s national drinking water program; and
  • The Radiation Advisory Committee (RAC) – It provides advice on radiation protection, radiation science, and radiation risk assessment.

Nominations will be accepted until May 1, 2020.

USDA Solicits Stakeholder Input On Agricultural Innovations

Also on April 1, 2020, the U.S. Department of Agriculture (USDA) requested written stakeholder input on objectives and opportunities leading to research goals and informed product goals to facilitate transformative breakthroughs that enable U.S. agriculture to meet its goal of increasing agricultural production by 40 percent by 2050.

DOE EERE Looking For Volunteers To Pilot EPIC Application Submissions

On March 31, 2020, the U.S. Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE) announced its intention to replace eXCHANGE for a new system for funding opportunity announcements (FOA) and application submissions. Starting in Fiscal Year 2021, parties interested in responding to EERE’s opportunities will use the EERE Program Information Center (EPIC). As DOE EERE transitions into EPIC, it is currently looking for volunteers to test the new system and provide feedback. Pilot testing will be from May through June 2020.

Interested parties will have a chance to register early and experience EPIC and how the submission process is changing. According to EERE, the most prominent change to the registration process is that parties must register before their individual applicant accounts can be created. The pilot is open to any organization. Volunteers will be asked to register in EPIC and submit a test application. Training videos will be available, and volunteers will be asked to provide feedback on the new system. Two roles are needed to register for the pilot: (1) the organization’s Government Business Point of Contact (from www.sam.gov), and (2) Technical Points of Contact, such as Principle Investigators or individuals who prepare, review, or submits applications for FOAs.

Organizations interested in volunteering for the pilot test should e-mail [email protected] by May 1, 2020. Further details are available here. Participation is limited and volunteers will be selected on a first-come-first-serve basis.

EPA Announces and Clarifies Temporary Enforcement Discretion Policy

EPA announced on March 26, 2020, a temporary policy regarding enforcement of environmental legal obligations during the COVID-19 pandemic. EPA states that its temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. The policy addresses different categories of noncompliance differently. For example, according to EPA, it “does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic but does expect operators of public water systems to continue to ensure the safety of our drinking water supplies.” The policy describes the steps that regulated facilities should take to qualify for enforcement discretion. To be eligible for enforcement discretion, the policy requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

EPA notes that its policy does not provide leniency for intentional criminal violations of law and that it does not apply to activities that are carried out under Superfund and Resource Conservation and Recovery Act (RCRA) Corrective Action enforcement instruments. EPA states that it will address these matters in separate communications. The policy states that it does not apply to imports. According to the policy, EPA is “especially concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts.” EPA “expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health.”

The policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary. To provide fair and sufficient notice to the public, EPA states that it will post a notification on its website at least seven days prior to terminating the temporary policy.

On March 30, 2020, the EPA issued a Press Release to clarify this Temporary Policy. The impetus for the Press Release was based, according to EPA, on the “reckless propaganda” by certain news outlets that provided erroneous or exaggerated information about the Temporary Policy, particularly that the Temporary Policy is providing a blanket waiver of environmental requirements or is creating a presumption that the COVID-19 pandemic is the cause of noncompliance.

EPA’s Press Release outlines certain elements of the Temporary Policy that should not be overlooked:

  • The Temporary Policy states that EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements, if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. The Policy is not intended to cover:
     
    • Exceedances of pollutant limitations in permits, regulations, and statutes.
       
    • Cases which may involve acute risks or imminent threats, or failure of pollution control or other equipment that may result in exceedances, except in possible circumstances where the facility contacts the appropriate EPA region, or authorized state or tribe, and allows regulators to work with that facility to mitigate or eliminate such risks or threats.
       
    • Normal operations and maintenance of public water systems and required sampling of vital drinking water supplies.
       
  • Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. EPA states that it is using this approach to allow EPA to prioritize its resources and respond to acute risks and imminent threats, rather than making up-front case-by-case determinations regarding routine monitoring and reporting requirements.

EPA notes that it expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible, once the COVID-19 threat is over. EPA states that it plans to lift the measures of the Temporary Policy as soon as normal operations can resume, which may occur sooner in some locations than others.

B&C/Acta Group

Acta Group Launches CDR Cross-Check™ To Assist Companies In Identifying CDR Reporting Requirements

The Acta Group (Acta®) announced on April 1, 2020, the launch of CDR Cross-Check™, an ingenious yet simple tool developed and offered by Acta to assist companies in preparing for the 2020 Chemical Data Reporting (CDR) required by EPA. CDR Cross-Check utilizes the most recent CDR listing information publicly available provided by EPA (currently, 2016 lists) to identify whether all or some of a company’s inventory of chemical substances are subject to CDR under the Toxic Substances Control Act (TSCA) and, if so, at what reporting threshold. CDR Cross-Check will make CDR reporting easier.

CDR Cross-Check will identify whether chemicals are listed on the TSCA Inventory and, if so,

  • whether they are listed as active or inactive;
  • whether they were subject to specific TSCA regulatory actions in 2016;
  • whether they are exempt; and
  • what the 2020 reporting thresholds would be based on the 2016 data.

Sample CDR Cross-Check™ Report:

(click image to expand)

A CDR Cross-Check report prepared at this time will be extremely useful as a preliminary check in preparation for the 2020 CDR reporting. It will confirm regulatory statuses from the 2016 reporting cycle, so for those chemicals, users will know what the reporting threshold will be for 2020 and can determine now whether reporting is needed. It will also give users time to address potential issues well before the 2020 reports are due.

To access CDR Cross-Check, a customer will upload the list of chemicals to be evaluated by the CDR Cross-Check tool and pay the appropriate fee based on the number of chemicals to be evaluated. Fees are $3.00 (USD) per chemical for the first 750 chemicals plus $2.00 (USD) per chemical for additional chemicals over 750. The minimum fee is $400 (USD).

Acta anticipates that additional chemicals will be added to the regulatory lists in June 2020 that may result in lower reporting thresholds. The CDR Cross-Check will be updated at that time to include the new lists. Customers that have already used the CDR Cross-Check prior to the 2020 updates will receive a 50% discount for an updated list.

Visit the CDR Cross-Check website, https://cdr-cross-check.actagroup.com/, for more information and to order a CDR Cross-Check report.

More information on recent CDR developments is available in Acta’s March 19, 2020, memorandum “EPA Releases Final Amendments to CDR Rule, Extends Reporting Period.”

The Acta Group is a global scientific and regulatory consulting firm that assists companies with strategic commercialization planning and complex product registration and compliance matters in North America, South America, Europe, the Middle East, and Asia. Acta is the consulting affiliate of Washington, D.C., law firm Bergeson & Campbell, P.C. (B&C®).

Other News
 

GreenBiz, “Corporate Renewable Energy in the Age of COVID-19
 
International Leather Maker, “How the Leather Industry Is Transforming Itself Using Biotechnology
 
phys.org, “Upgrading Biomass with Selective Surface-Modified Catalysts
 
phys.org, “Scientists Create Triple-Threat Genetic Toolkit for Producing Eco-Friendly Chemicals
 
The New York Times, “U.S. EPA Waives Fuel Requirements, Extends Biofuels Deadline to Help Refineries
 
AZO Cleantech, “Bio-Based Hydrogel Beads Clean Up Contaminated Groundwater
 
foodnavigator-latam.com, “Custom-Designed Yeast Can Make Food Healthier, Says Biotech Start-Up
 
FreshFruitPortal.com, “New Bioplastic Made from Fruit Residue Developed in Chile
 

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