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

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Biobased and Renewable Products Update
October 7, 2021

Federal

DOE Announces Funding Focused On Reducing Aviation And Shipping Sector Emissions

As part of a White House roundtable to launch the Sustainable Aviation Fuels (SAF) Grand Challenge to decarbonize the aviation sector by 2050, on September 9, 2021, the U.S. Department of Energy (DOE) announced the availability of $64.7 million in funding for projects focused on the production of cost-effective and low-carbon biofuels. DOE aims to advance technologies to replace petroleum fuels used in heavy-duty forms of transportation, such as airplanes and ships.

DOE Secretary of Energy Jennifer M. Granholm stated that, although heavy-duty vehicles in the transportation sector such as planes and ships are difficult to electrify, decarbonizing transportation is a critical part of the path to achieve net-zero carbon emissions. As part of the SAF Grand Challenge, DOE signed on September 8, 2021, a memorandum of understanding with the U.S. Department of Transportation (DOT) and the U.S. Department of Agriculture (USDA). The memorandum formalizes the DOE, DOT, and USDA’s collaborative efforts on the required research, development, and demonstration (RD&D) to reach the goals of supplying at least three billion gallons of SAF per year by 2030 and sufficient SAF to meet 100 percent of aviation fuel demand by 2050.

DOE selected 22 projects to receive the available funds administered by its Bioenergy Technologies Office (BETO). The projects target high-impact bioenergy technology RD&D to increase foundational knowledge and scale up systems to produce low-carbon biofuels at lower costs, covering five topic areas:

  • Scale-Up of Biotechnologies;
     
  • Affordable, Clean Cellulosic Sugars for High Yield Conversion;
     
  • Separations to Enable Biomass Conversion;
     
  • Residential Wood Heaters; and
     
  • Renewable Natural Gas.

Additional information about the selected projects is available here.

Senate Committee Holds Hearing On EPA Nominees For Assistant Administrator For Enforcement And Compliance Assurance

On September 15, 2021, the Senate Committee on Environment and Public Works held a hearing on several U.S. Environmental Protection Agency (EPA) nominees, including Amanda Howe, nominated for Assistant Administrator for Mission Support, and David Uhlmann, nominated for Assistant Administrator for Enforcement and Compliance Assurance.

Amanda Howe has a long history of public service, including such roles as the Chief Operating Officer (COO) for the now-Vice President, Kamala Harris, for the People Presidential Campaign, Acting Chief of Staff for New York Mayor Bill de Blasio, Assistant Secretary of Commerce and Trade for Virginia’s then-Governor Mark R. Warner (D), and lead planner of Her Majesty Queen Elizabeth II and Prince Phillip’s royal visit to Virginia for then-Governor Tim Kaine (D). Ms. Howe highlighted her extensive career in operations and management during her opening statements to the Committee, noting that if confirmed, she will bring her personal motto of “go for the good” to her position at EPA.

David Uhlmann is the current Director of the Environmental Policy and Law Program at the University of Michigan Law. Prior to academia, Mr. Uhlmann spent 17 years as a federal prosecutor, including seven years with the U.S. Department of Justice’s Environmental Crimes section. During his opening statement, Mr. Uhlmann stressed that his time in academia has strengthened his belief in promoting environmental advocacy, noting that he believes that those companies that display ethics, integrity, and environmental stewardship should not be at a competitive disadvantage to those that do not.

Senator Shelley Moore Capito (R-WV), Ranking Member of the Committee, asked Ms. Howe how she would transition from the political sphere into governmental management, given President Biden’s initiative to bolster EPA staff. Ms. Howe reiterated her operations management background, noting that throughout her career in public service, she has managed large and complex operations and can think of no better way to serve the public than through the EPA. Senator Capito then asked Mr. Uhlmann about a paper he had written for the Obama Administration. The paper addressed the Clean Energy Standard and carbon taxing, but excluded carbon capture and nuclear energy. Senator Capito questioned how Mr. Uhlmann’s stance on the Clean Energy Standard would align with his EPA nominated role. Mr. Uhlmann responded that while he felt that we need to be seriously addressing climate change, it is the role of Congress to decide how. He stated that his role within EPA would be to help companies comply with any laws that Congress passes and any regulations promulgated by EPA, as well as to bring enforcement actions against companies that violate those laws.

Senator Cynthia Lummis (R-WY) questioned Mr. Uhlmann about his stance on a recent series of White House Environmental Justice Advisory Council recommendations that stated that federal support for technologies such as carbon capture, utilization, and storage were not suitable for Environmental Justice (EJ) communities. Mr. Uhlmann responded that both EJ communities and rural communities have been left behind, and that if confirmed, he would work with states to ensure both communities had access to clean air and water. Senator Lummis and Senator Benjamin L. Cardin (D-MD) each probed Mr. Uhlmann about respective projects that their states were working on with EPA, and asked for a commitment from Mr. Uhlmann that those projects would not go to the wayside. Mr. Uhlmann responded that he believed strongly in a state and federal partnership and that he would work to strengthen that relationship.

Closing the nominations hearing, Committee Chair Thomas Carper (D-DE) asked each nominee a series of questions, including his standard “what question were you not asked that you wish you had been?” Senator Carper posed three questions to Ms. Howe: what attributes of Governor Mark Warner and Governor Tim Kaine did you witness and learn during your time as a public servant; how would you plan on safely bringing the EPA workforce back into the office; and given EPA’s prior cybersecurity breaches, how would you lead EPA’s cybersecurity efforts? Ms. Howe reflected on her time serving each Governor and noted that Mark Warner had the ability to pay attention to detail while still maintaining an eye on the big picture. In her role as EPA Assistant Administrator for Mission Support, she would work to incorporate these lessons by building strong relationships regardless of political party, so that common ground can be found for the common good. From Tim Kaine, Ms. Howe observed that kindness is a strength, and that challenges should be approached with openness, kindness, and integrity.

Ms. Howe expressed concern for the EPA workforce and the challenges they face in keeping themselves and their families safe during COVID-19. When considering bringing EPA staff back to the office, Ms. Howe stressed the importance of following the science and following the Centers for Disease Control and Prevention (CDC) guidelines. In considering how to move forward, Ms. Howe stated she would use EPA as the resource that it is and consult with staff to understand what aspects of teleworking have been successful. She noted that people’s lives have changed, and reintegrating back to the office will take empathy, openness, and a willingness to listen to concerns. In her response to cybersecurity concerns, Ms. Howe stated that this is an issue that has been and will continue to be a top priority for Mission Support. If confirmed, she plans to work directly with the EPA’s Chief Information Officer (CIO) and COO to identify and sharpen cybersecurity. She also noted that she has no reservations in speaking openly with Congress and to ask for the resources and tools that she needs to tighten EPA cybersecurity measures. The question Ms. Howe would like to have been asked was, “how do you feel about your nomination to the role of Assistant Administrator for Mission Support?” She feels excited. She is looking forward to recruiting new staff to EPA and feels that it is a vibrant and exciting place to work.

Senator Carper’s closing questions to Mr. Uhlmann included: what in your extensive experience prosecuting environmental crimes and enforcement actions can you bring to this position in helping EPA identify and prevent violations before they occur; and what question were you not asked that you wish you had been? Mr. Uhlmann discussed his long history as a prosecutor working with the career staff of EPA in trials, as well as his collaborative work alongside EPA civil attorneys. Mr. Uhlmann emphasized his deep appreciation for the career staff at EPA, highlighting that unlike his predecessors, he is not new to this area and can “hit the ground running.” Overall, Mr. Uhlmann focused on the need for response. The most salient lesson he observed from his time as a prosecutor is that pollution has real consequences on the lives of Americans and their communities.

Mr. Uhlmann would like to have been asked what his top priorities would be as Assistant Administrator for Enforcement and Compliance Assurance. He focused on the threat of climate change and the effects that environmental harms have on communities, stating that these concerns should be at the root of enforcement and compliance actions. He went on to address staffing issues within EPA enforcement and compliance regional offices, and the advocacy he would engage in to procure the necessary resources to strengthen those offices. Maintaining that we cannot regulate our way out of every environmental problem, Mr. Uhlmann focused on the importance of promoting ethics, integrity, and environmental stewardship within the business community to help solve these problems. Rounding out his list of priorities, Mr. Uhlmann stated that there is no room for politics in enforcement, rather it is about the law and the facts.

The hearing proceeded with a jovial atmosphere and at times felt almost routine in nature. There were no real surprises or hard-hitting questions posed to either nominee. Senator Mark Kelly (D-AZ) posed only one question to Mr. Uhlmann, centered on the niche issue of Clean Air Act (CAA) violations for modifying street vehicle emissions systems to convert them to racing vehicles. Senator Kelly expressed concern over how this statutory prohibition hampered the sport of street racing in Arizona. Mr. Uhlmann pivoted to his work on the Volkswagen (VW) emissions case and the environmental consequences of that scandal, but did not commit to a stance on Senator Kelly’s proposed amendments to the CAA. The line of questioning then diverted towards Senator Kelly’s wife, Gabby Gifford, and her love of street motorcycle racing. The hearing itself incorporated a decent amount of story telling on behalf of the Committee members, adding to a sense of collegiality. Throughout the hearing, both nominees emanated passion for their possible future roles within EPA and focused on collaboration as a necessary element moving forward.

FDA Issues Revised Final Guidance On Biosimilar Development And The BPCI Act

On September 20, 2021, the U.S. Food and Drug Administration (FDA) announced the availability of its revised final guidance for industry on biosimilar development and the Biologics Price Competition and Innovation Act of 2009 (BPCI Act). Titled “Questions and Answers on Biosimilar Development and the BPCI Act,” the revised guidance aims to inform prospective applicants and facilitate the development of proposed biosimilars and proposed interchangeable biosimilars. The guidance also includes FDA’s interpretation of certain statutory requirements added by the BPCI Act.

FDA accepts electronic or written comments on all FDA guidance documents at any time.

EPA Announces Winners Of The 2021 Safer Choice Partner Of The Year Award

On September 22, 2021, as part of Pollution Prevention Week, EPA recognized 33 Safer Choice Partner of the Year award winners for their achievements in design, manufacture, selection, and use of products with safer chemicals. Michal Freedhoff, Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP), commented on the winners’ achievements, stating: “Today, we recognize the leadership and accomplishments of Safer Choice partners and stakeholders for their work helping consumers and commercial buyers identify products with safer chemical ingredients, without sacrificing quality or performance. Additionally, I’m excited to see that the work done by many of this year’s awardees support the Biden-Harris Administration’s goals of addressing climate change and advancing environmental justice.”

This year, award applicants were encouraged to demonstrate how their work with safer chemistry bolsters resilience to the impacts of climate change, promotes environmental justice, and results in cleaner air or water. In the upcoming year, EPA hopes to build on award winners’ work by expanding the Safer Choice program to make products containing safer chemicals increasingly available to underserved communities. Winners of this year’s awards include small- and medium-sized companies, women-owned companies, state and local governments, non-governmental organizations (NGO), and associations.

DOE Announces Inclusive Energy Innovation Prize

On September 30, 2021, DOE announced the launch of a new prize that will award up to $2.5 million in cash prizes to ten groups and organizations that support entrepreneurship and innovation in historically underserved communities. The Inclusive Energy Innovation Prize acknowledges that underserved populations have been and continue to be more susceptible to the negative impact of climate change, global warming, and pollution. DOE’s Office of Energy Efficiency and Renewable Energy (EERE) and the office of Economic Impact and Diversity (ED), hope to improve disadvantaged communities’ access to clean energy innovation ecosystems and to opportunities in science, technology, engineering, and mathematics (STEM). The prize supports the Biden-Harris Administration’s Justice40 Initiative to prioritize environmental and economic justice in the United States’ transition into a net-zero economy by 2050. The goals of the Prize are to:

  • Enable clean energy and climate innovation at colleges and universities serving large populations of students that are underrepresented in STEM, Minority Serving Institutions (MSI), community colleges, and undergraduate institutions.
     
  • Create and increase participation in clean energy and climate-smart job training and placement, including programs that target participation from:
     
    • Underserved populations;
       
    • Formerly incarcerated individuals; and
       
    • Youth transitioning from foster care.
       
  • Foster just and equitable clean energy deployment through grassroots innovation activities focused on community-centric networks and bottom-up solutions for sustainable development based on the needs of the communities involved.
     
  • Identify and fund activities that will help bring awareness to DOE, federal, state, local government, or private funding in support of the Justice40 goals.
     
  • Enable the development of replicable clean energy transitions that deliver just and equitable benefits to disadvantaged communities.

DOE and ED will distribute Inclusive Energy Innovation Prize funds in two phases. In Phase One, winners will receive an initial cash prize of $200,000 each, with an opportunity to receive additional awards, mentorship, and other services. Phase One winners will also be eligible for participation in Phase Two prizes. In Phase Two, up to three teams will receive cash prizes from a pool of $500,000.

Phase One applications may be submitted until 5:00 p.m. (EST) on February 25, 2022, with winner announcements in March 2022. Phase Two applications may be submitted beginning in March 2023. Information on how to apply is available here.

EPA Issues Draft FY 2022-2026 Strategic Plan

On October 1, 2021, EPA announced the availability of the Draft FY 2022-2026 EPA Strategic Plan for public review and comment by November 12, 2021. EPA anticipates that the strategic plan for fiscal years (FY) 2022-2026 will be prepared in final and submitted to Congress in February 2022.

EPA Announces BOSC CSS HERA Subcommittee Meeting

On October 1, 2021, EPA announced a series of virtual meetings of the Board of Scientific Counselors (BOSC) Chemical Safety for Sustainability and Health and Environmental Risk Assessment (CSS HERA) Subcommittee to review recent progress and activities of the Chemical Safety Analytics (CSA) and Emerging Materials and Technologies (EMT) research areas. Meetings are open to the public, and EPA is accepting comments until November 3, 2021. Interested parties may also request the draft agenda or request to present at any of the meetings by November 3, 2021.

The initial meeting will be held over a two-day period via videoconference on November 4 and 5, 2021, from 12:00 p.m. to 5:00 p.m. (EDT). Registration is required by November 3, 2021. The following meetings are also scheduled:

  • BOSC Deliberation Videoconference: November 18, 2021, from 11:00 a.m. to 2:00 p.m. (EST) – Registration is required by November 17, 2021.
     
  • Final BOSC Deliberation Videoconference: December 10, 2021, from 11: 00 a.m. to 2:00 p.m. (EST) – Registration is required by December 9, 2021.

Meeting times are subject to change.

GAO Asks Whether Chemical Recycling Can Reduce Plastic Pollution

The U.S. Government Accountability Office (GAO) posted a WatchBlog item entitled “Can Chemical Recycling Reduce Plastic Pollution?” on October 5, 2021. The item looks at GAO’s September 2021 Science & Tech Spotlight: Advanced Plastic Recycling. According to GAO, chemical recycling could reduce the amount of plastic that ends up in landfills, potentially reducing the release of chemicals into the environment. Chemical recycling can produce high-quality raw materials, decreasing the demand for fossil fuels and other natural resources. GAO states that the obstacles to using chemical recycling include process and technology challenges, high startup and operating costs, and limited incentives for recycling innovation and investment. GAO notes that new plastics produced from fossil fuels are typically cheaper to produce than recycled plastics, in part due to transportation costs and limited recycling infrastructure, making recycled plastics less marketable. Key questions for policymakers include:

What steps could the federal government, states, and other stakeholders take to further incentivize chemical recycling rather than disposal? What are the potential benefits and challenges of these approaches?

What steps could policymakers take to support a transition toward a circular economy — one in which products are not disposed of but are recycled for reuse including innovation — and investment in manufacturing and recycling capacity?

What might policymakers do to promote advanced recycling technologies while also reducing the hazards associated with existing plastic production and recycling methods?

One issue that GAO fails to consider is the regulatory status of depolymerized plastic. Furthermore, making a polymer by depolymerizing plastic is, according to the Toxic Substances Control Act (TSCA) nomenclature rules, different than the virgin polymer. These nomenclature complications will likely be a barrier to the commercialization of the closed-loop chemical recycling of plastics.

Industry

ELI To Honor Carol Browner For Years Of Service As EPA Administrator

On October 19, 2021, the Environmental Law Institute (ELI) will honor Carol Browner‘s years of service as EPA Administrator with the Environmental Achievement Award. ELI gives this award annually during its award dinner to honor individuals and organizations for demonstrating outstanding commitment to environmental protection. Ms. Browner has overseen the coordination of environmental, energy, climate, transport, and related policies during her time in the U.S. federal government. Under her direction, EPA reauthorized the Safe Drinking Water Act and the Food Quality Protection Act, enacted stringent air pollution standards, and started EPA’s Brownfields Program. The Annual Award Ceremony will be held in person and virtually on Tuesday, October 19, 2021, at the Omni Shoreham Hotel in Washington, D.C. Bergeson & Campbell, P.C. (B&C®), and its affiliates are pleased to join ELI in celebrating Carol Browner and her visionary and transformative leadership of U.S. environmental policy. B&C is a proud sponsor of the 2021 Award Dinner.

B&C

All Things Chemical Celebrates Three Years Of Great Conversations

B&C’s All Things Chemical® podcast is celebrating three years of great conversations by offering listeners a chance to win audio-technica headphones, a wireless charging pad from Anker, books authored by us, and regulatory training courses. Help us celebrate this milestone by sending your dream guest or topic choices to podcast@lawbc.com, with the subject line “All Things Chemical,” and we may use them for future episodes! Submit your suggestions by October 31, 2021 — all e-mails received will be entered into the prize drawing (details below).

In the 66 episodes since All Things Chemical launched in October 2018 with “Animal Testing and New TSCA,” host Lynn L. Bergeson, Managing Partner, B&C, has invited listeners into her conversations with 36 guests, including Alexandra Dunn, Jeffery Morris, The Honorable John Shimkus, Bjorn Hansen, Lynn R. Goldman, and Daniel Rosenberg. Topics covered include TSCA; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation; the Globally Harmonized System of Classification and Labeling of Chemicals (GHS); pesticide issues; nanotechnology; plastics; political developments; regulatory reactions to COVID-19; and more. All episodes are available on Apple Podcasts, Stitcher, Spotify, and B&C’s website.

Some of the most listened-to episodes include:

All Things Chemical’s Three Thrilling Years Giveaway Items:

audio-technica ATH-ANC900BT QuietPoint® Wireless Active Noise-Cancelling Headphones (one winner)

Anker PowerWave 10 Dual Wireless Charging Pad (one winner)

B&C books or online training courses (four winners) – your choice from these resources:

To enter, e-mail podcast@lawbc.com with your suggestions for episode topics or guests. You may submit multiple entries, but only the first entry will be entered into the Sweepstakes.

NO PURCHASE NECESSARY. Open to legal residents of the 50 United States, the District of Columbia, and Canada; you must be 18 years or older. Void where prohibited or restricted by law. Entry in the Sweepstakes constitutes your full and unconditional acceptance of the Official Rules.

Events

26th Annual Green Chemistry & Engineering Conference: Call For Symposia

The American Chemical Society’s Green Chemistry Institute® (ACS GCI) is now accepting symposium proposals for the 2022 26th Annual Green Chemistry & Engineering (GC&E) Conference that will be held in Reston, Virginia, from June 6 to June 8, 2022. The theme for the 2022 GC&E Conference is “Thinking in Systems: Designing for Sustainable Use,” and ACS GCI is looking for proposals focused on green and sustainable chemistry and engineering product development and commercialization. Proposals are due by October 11, 2021. Additional information and guidelines are available here.

ABA Section Of Environment, Energy, And Resources 29th Fall Conference, October 13-15, 2021, Washington, D.C.

Lynn L. Bergeson will present during the “Moving Towards ‘Cradle-to-Cradle’: Regulatory Drivers and Barriers in Reducing Waste and Achieving Sustainable Lifecycle Management and a Circular Economy” session on October 14, 2021, at 1:45 p.m. (EDT), at the American Bar Association’s (ABA) Section of Environment, Energy, and Resources (SEER) 29th Fall Conference.

Other News

•Reuters, “U.S. EPA Asks Court to Allow It to Reconsider Some Biofuel Blending Waivers”
•pv magazine, “Storing Wind, Solar Power with Silica Sands”
•pv magazine, “Designer Bacteria for Energy Storage”
•Mongabay News, “Plant-Based Face Masks? This Young Philippine Inventor Has You Covered”
•UCLA Samueli School of Engineering, “Researchers Infuse Bacteria with Silver to Improve Power Efficiency in Fuel Cells”