Biobased and Renewable Products Update
April 1, 2021
Federal
EPA Issues Final Rule Extending The 2019 And 2020 RFS Compliance And Attest Engagement Reporting Deadlines
On April 1, 2021, the U.S. Environmental Protection Agency (EPA) issued its final modifications of certain compliance dates under the Renewable Fuel Standard (RFS) program. The final rule extends the RFS compliance deadline for the 2019 and 2020 compliance years and its associated deadlines for submission of attest engagement reports for the 2019 and 2020 compliance years for small refineries. The new 2019 compliance year and attest engagement report deadlines are now November 30, 2021, and June 1, 2022, respectively. The new 2020 compliance year and attest engagement report deadlines are now January 31, 2022, and June 1, 2022, respectively. EPA has also extended the deadline for submission of attest engagement reports for the 2021 compliance year for obligated parties to September 1, 2022. The final rule became effective on March 20, 2021.
EPA Announces Updates To TSCA New Chemicals Program
EPA announced on March 29, 2021, that it is evaluating its policies, guidance, templates, and regulations under the Toxic Substances Control Act (TSCA) new chemicals program to ensure they “adhere to statutory requirements,” the Biden-Harris Administration’s executive orders, and other directives. EPA identified several instances where its approach for making determinations and managing risks associated with new chemicals can, according to EPA, more closely align with TSCA’s requirements to ensure protections for human health and the environment, including the use of significant new use rules (SNUR) and assumptions related to worker exposures. EPA states that it will stop issuing determinations of “not likely to present an unreasonable risk” based on the existence of proposed SNURs. According to EPA, “[r]ather than excluding reasonably foreseen conditions of use from EPA’s review of a new substance by means of a SNUR, Congress anticipated that EPA would review all conditions of use when making determinations on new chemicals and, where appropriate, issue orders to address potential risks.” Going forward, when EPA concludes that one or more uses may present an unreasonable risk, or when EPA believes that it lacks the information needed to make a safety finding, EPA will issue an order to address those potential risks.
EPA states that as has been the “long-standing practice,” it intends to continue issuing SNURs following TSCA Section 5(e) and 5(f) orders for new chemicals to ensure the requirements imposed on the submitter via an order apply to any person who manufactures or processes the chemical in the future. EPA notes that this ensures that other manufacturers of the same new chemical substance are held to the same conditions as the submitter subject to the TSCA Section 5(e) or 5(f) order.
EPA states that it now intends to ensure necessary protections for workers identified in its review of new chemicals through regulatory means. According to the announcement, where EPA identifies a potential unreasonable risk to workers that could be addressed with appropriate personal protective equipment (PPE) and hazard communication, EPA will no longer assume that workers are protected adequately under the Occupational Safety and Health Administration’s (OSHA) worker protection standards and updated safety data sheets (SDS). Instead, EPA will identify the absence of worker safeguards as “reasonably foreseen” conditions of use and mandate necessary protections through a TSCA Section 5(e) order, as appropriate.
Bergeson & Campbell, P.C. Commentary
The first policy change — that the Office of Pollution Prevention and Toxics (OPPT) will no longer employ the “non-order SNUR” construction to regulate new chemicals without an order — was somewhat predictable. This construction, since its inception, has led to questions about whether this interpretation meets the requirements under TSCA Section 5. In our view, EPA issuing a SNUR to prohibit conditions of use that EPA identifies as potentially leading to an unreasonable risk was an appropriate and expeditious means to achieve the protective end (the TSCA regulation) without the inefficiency and delays associated with the development of a consent order. EPA would only use this option when EPA concluded the intended conditions of use were not likely to present an unreasonable risk. It is not clear why a SNUR is viewed as being less protective than an order, when an order applies only to the premanufacture notice (PMN) submitter and a SNUR applies to all actors in the supply chain. EPA is required to promulgate a SNUR that conforms to an order absent a reason otherwise. The claim that undertaking a condition of use that is defined in a SNUR as a significant new use “requires only notification to EPA” misrepresents the rigor of the significant new use notice (SNUN) process. A SNUN functions just like a PMN, with a similar level of effort required on the submitter’s and EPA’s parts and nearly identical determination outcomes (a consent order, modification of the existing SNUR, or revocation of the existing SNUR if warranted), so saying that a SNUN is “just a notification to EPA” is the equivalent of stating that a PMN is “just a notification to EPA.” Detractors might also claim that orders include testing, but that presumes that testing is required for EPA to make an informed decision. If EPA can, as it routinely does, make a decision based on conservative assumptions with analogs, models, and information provided by the submitter, EPA can similarly make an informed decision about what measures are necessary to achieve its protective goal without new test data. In Bergeson & Campbell, P.C.’s (B&C®) view, this policy change will add marginal, if any, protective benefit at a significant increase in effort by both EPA and the submitter.
EPA’s decision that it no longer views use of PPE as reasonably foreseeable is an unwelcome and unprincipled development. B&C, on behalf of the TSCA New Chemicals Coalition (NCC), provided, at OPPT’s request, a robust data set that demonstrated that proper PPE is rarely not used in an industrial/commercial setting. A database of 40 years of OSHA violations contained very few glove, goggle, and general dermal protection violations — all obvious violations to any inspector. The marginal number of OSHA violations supports the NCC’s view that standard PPE use is both reasonably foreseeable and highly likely and demonstrably so. Today’s unexplained reversal is difficult to reconcile with these facts. If EPA proceeds to issue orders for every PMN that may present a risk if workers do not take routine protective measures, then EPA will be required to regulate nearly every PMN in which EPA identifies a hazard other than “low hazard” for health and ecotoxicity, as was EPA’s practice when the Lautenberg amendments were passed in 2016. As we have stated previously, that would mean that EPA will be implementing TSCA as a hazard-based law, instead of the clear risk-based law that it is.
EPA Calls For Nominations For 2021 Safer Choice Partner Of The Year Awards
EPA announced on March 23, 2021, that it is now accepting nominations for the 2021 Safer Choice Partner of the Year Awards. According to a Federal Register notice published on March 24, 2021, the awards will recognize the leadership contributions of Safer Choice partners and stakeholders who, over the past year, have shown achievement in the design, manufacture, selection, and use of products with safer chemicals that further outstanding or innovative source reduction. EPA “especially encourages” award applications that show how the applicant’s work in the design, manufacture, selection, and use of those products promotes environmental justice, bolsters resilience to the impacts of climate change, results in cleaner air or water, or improves drinking water quality. All Safer Choice stakeholders and program participants in good standing are eligible for recognition. Interested parties should submit to EPA information about their accomplishments and contributions during 2020. Submissions are due May 31, 2021. EPA will recognize award winners at a ceremony in fall 2021.
Safer Choice is an EPA Pollution Prevention (P2) program, which includes practices that reduce, eliminate, or prevent pollution at its source, such as using safer ingredients in products. The Safer Choice program certifies products containing ingredients that have met its “specific and rigorous” human health and environmental toxicological criteria. EPA notes that the Safer Choice program allows companies to use its label “on certified products that contain safer ingredients and perform, as determined by expert evaluation.” EPA states that the Safer Choice program certification “represents a high level of achievement in formulating products that are safer for people and the environment.”
DOE Announces RFP On Smart Manufacturing And Selects Projects To Increase Clean Energy In Manufacturing
On March 31, 2021, the U.S. Department of Energy (DOE) Office of Energy Efficiency & Renewable Energy (EERE) announced a new request for proposals (RFP) and $4 million in selections for projects aimed at accelerating the adoption of Smart Manufacturing practices. In support of the Biden Administration’s efforts to encourage innovation and reduce the carbon footprint of the manufacturing sector, the new $2 million RFP will expand DOE’s Clean Energy Smart Manufacturing Innovation Institute’s (CESMII) Smart Manufacturing Innovation Centers (SMIC). SMICs consist of a network of individuals and organizations from industry, government, and academia who allow manufacturers of all sizes to benefit from the network’s assets and competencies and to create test beds. CESMII has also selected 14 new research and development (R&D) projects that will apply Smart Manufacturing solutions to real-world manufacturing process and operation challenges to improve performance, quality, and efficiency of energy productivity.
DOE Awards $27.5 Million To Water Infrastructure And Treatment Projects
DOE EERE announced on March 22, 2021, awards totaling $27.5 million for 16 water infrastructure and treatment projects. Spanning 13 states, each project will focus on bringing new water and wastewater-treatment technologies from the applied R&D stage into the market. According to DOE, increasing numbers of utilities responsible for clean water have shifted from strict wastewater treatment models to a broader model of water-resource management. This new model involves collecting and treating wastewater to produce water suitable for industry and agriculture along with drinkable water for households and energy recovery. Wastewater treated by these utilities serves as a potential source of thermal, chemical and hydraulic energy. With the right technology, therefore, it is possible to convert wastewater into renewable power, chemicals, fertilizers, and reusable water.
The 16 selected projects aim to provide sustainable water sources and affordable treatment options to industry, municipalities, agriculture, utilities, and the oil and gas sector by tackling several objectives, including:
- Developing widely applicable treatment processes to produce renewable power, extract chemicals and fertilizers, and reuse water locally, while simultaneously minimizing energy consumption and waste generation;
- Evaluating flexible grid service for opportunities to generate biopower from wastewater;
- Deploying artificial intelligence, machine learning, and predictive process controls to improve resilience and efficiency;
- Addressing environmental justice and social inequities produced by lack of access to clean water among rural and Native communities; and
- Improving wastewater-treatment options for agriculture and livestock.
A complete list of the 16 projects is available here.
DOE Issues Notices Of Intent For FOAs On Sustainable Transportation Technologies
On March 10, 2021, DOE EERE issued notices of intent (NOIs) for three sustainable transportation technologies funding opportunity announcements (FOAs). Expected in Spring 2021, these FOAs will focus on innovative research, development, demonstration, and deployment (RDD&D) of technologies that will reduce greenhouse gas (GHG) emissions across the transportation sector. Of particular interest is DOE EERE’s NOI for an FOA in Bioenergy Technologies Office Scale-Up and Conversion, which would be led by DOE’s Bioenergy Technologies Office (BETO). BETO focuses on the development of technologies that convert domestic biomass and other waste resources into low-carbon biofuels and bioproducts that can enable a transition into a clean energy economy. These bioenergy technologies can also create high-quality jobs, support rural communities, and spur renewable energy and chemical production innovation. According to DOE, this particular NOI on the bioeconomy anticipates supporting high-technology RDD&D to improve scientific and engineering knowledge required to produce low-carbon biofuels at lower costs. DOE states that it will allow for partnerships with industry to demonstrate these technologies are relevant at industrial scales.
International
Canada Adjusts Fees For New Substance Notifications
Under Canada’s New Substances Fees Regulations, fees must be provided with each New Substance Notification (NSN) package submitted under the New Substance Notification Regulations (Chemicals and Polymers). The amount of the fee is dependent on the annual sales in Canada for the notifier, the specific Schedule being submitted, and other services being requested (e.g., confidential search on the Domestic Substances List (DSL) or Non-Domestic Substances List (NDSL) or masked name application). As of April 1, 2019, Environment and Climate Change Canada (ECCC) modifies NSN fees annually based on the country’s Consumer Price Index (CPI). Based on a decrease in Canada’s CPI over the past 12 months, fees for NSN submissions will decrease by 0.2% starting April 1, 2021. ECCC has posted a revised fee table, effective April 1, 2021, to March 31, 2022.
Events
ELI Webinar: Food Scrap Recycling
On April 8, 2021, from 12:00 to 1:30 p.m. (EDT), the Environmental Law Institute (ELI), in partnership with BioCycle and the American Biogas Council, will host a webinar titled “Food Scrap Recycling: Opportunities and Realities of Anaerobic Digestion.” The webinar will focus on anaerobic digestion and its ability to create biogas and digestate that can be used as renewable energy products. Registration is required via this link.
ACS Annual GC&E Conference
From June 14 through 18, 2021, the American Chemical Society Green Chemistry Institute (ACS GCI) will host its annual Green Chemistry & Engineering Conference. Fully virtual this year, the conference will include live sessions and poster presentations focused on green and sustainable chemistry and engineering under the 2021 theme of Sustainable Production to Advance the Circular Economy. Registration is now open via this link.
Other News
| • | Reuters, “Munching Maggots Help Singapore Startup Secure Lucrative Biomaterial” |
| • | AAAS EurekAlert!, “Genome Scalpel Invented for Industrial Microalgae to Efficiently Turn CO2 into Biofuel” |
| • | Phys.org, “Carbon Dioxide Electrotransformation into Value-Added Chemicals in Ionic Liquid-Based Electrolytes” |
| • | Technology Networks, “A Better Route to Biofuel Production?” |
| • | ScienceDaily, “Recyclable Bioplastic Membrane to Clear Oil Spills from Water” |
| • | Trade Arabia, “MOL Group Starts Innovative Biofuel Production” |
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