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

Biobased and Renewable Products Update
March 3, 2022


U.S. Senator Capito Joins Forces With Colleagues In Letter To EPA Administrator Regan Regarding EPA’s SRE Denials Under RFS

On January 27, 2022, U.S. Senator Shelley Moore Capito (R-WV), Ranking Member of the Senate Environment and Public Works (EPW) Committee, and 14 of her colleagues submitted a letter to the U.S. Environmental Protection Agency (EPA) Administrator, Michael Regan, requesting that EPA reconsider its proposed actions under the Renewable Fuel Standard (RFS) program through the RFS Annual Rules and the Proposed RFS Small Refinery Exemption Decision. Senator Capito and her colleagues request specifically that EPA reassess its proposed denial of all pending small refinery exemption (SRE) petitions under the RFS program, because EPA’s decision breaches congressional intent under the Clean Air Act (CAA). According to the letter, Congress’ intent in amending the CAA to allow for SREs was to alleviate disproportionate economic hardship associated with RFS compliance for small refiners. Therefore, the denial of all pending SRE petitions contravenes Congress’ intent and, according to Senator Capito and her colleagues, will lead to increased litigation and uncertainty under the RFS program.

The letter also states that EPA’s “proposal for all-time high Renewable Volume Obligations (RVO) for 2022 does not reflect market realities and is likely to further raise costs for refiners – especially small and independent refiners – and therefore American consumers and the economy.” Senator Capito and her colleagues urge EPA to reconsider these actions to:

  • Provide relief and certainty for companies, employees, and communities across the United States;
  • Bolster access to affordable and domestically produced fuels for U.S. consumers; and
  • Remove obstacles for an economy that is challenged currently by inflation and supply chain difficulties.

U.S. Senators Klobuchar And Grassley Urge EPA To Prioritize RFS In Bipartisan Letter

On January 31, 2022, U.S. Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA) and 12 of their colleagues submitted a letter to EPA Administrator, Michael Regan, regarding EPA’s RFS Annual Rules and Proposed RFS Small Refinery Exemption Decision. In the bipartisan letter, Senators Klobuchar and Grassley and their colleagues urge EPA to prioritize the RFS in support of a “homegrown energy future” by:

  1. Maintaining the blending requirements for 2022, including the 250 million gallon remand;
  2. Denying all pending SRE;
  3. Eliminating the proposed retroactive cuts to the 2020 RVO; and
  4. Setting 2021 volumes at the statutory levels.

The letter commends EPA’s efforts to better the RFS program and highlights areas with room for improvement. Of particular concern to the letter signatories is EPA’s proposal to waive retroactively 2.96 billion gallons of renewable fuel from the 2020 RVOs. The letter states that adjusting these biofuel volumes more than two years after they were finalized would set a troubling precedent and impact negatively the entire agriculture and fuel supply chain. Therefore, Klobuchar and her colleagues urge EPA to eliminate the proposed retroactive cuts to the 2020 volumes and require obligated parties to comply with the 2020 standards that were issued in final in 2019. The signatories express similar concerns with the proposal to reset retroactively authority to establish 2021 RVOs and state that EPA cannot meet its ambitious climate goals without providing for growth and certainty in the RFS.

Senators Klobuchar and Grassley and their colleagues request that EPA finalize these actions as quickly as possible to restore integrity, stability, and growth to the RFS program and the U.S. biofuel sector.

EPW Holds Hearing On RFS

On February 16, 2022, EPW held a hearing to examine EPA’s RFS program. U.S. Senator and EPW Chairman, Tom Carper (D-DE), made the opening statement, highlighting that EPW had not held an oversight hearing on the RFS since 2016. While Senator Carper demonstrated continued support for the RFS program, he also noted that “[f]or example, the amount of advanced renewable fuel used today in this country is far less than the 36 billion gallons that Congress mandated in 2007 be used by 2022. That shortfall is partly due to unforeseen market challenges and partly due to EPA’s delay in approving new fuels to enter the marketplace.” Senator Carper criticized the CAA for prohibiting some advanced biofuels that qualify for state programs from qualifying as renewable fuels under the RFS. He highlighted that volatility in compliance costs for refiners also presents challenges to implementing the RFS. The hearing included further discussions on other management and implementation challenges that EPA is facing and addressed opportunities to encourage increased deployment of more sustainable fuels.

U.S. Senate Committee On Agriculture, Nutrition, And Forestry Leaders Submit Letter To The Secretary Of Agriculture On Federal Investments In Biobased Products

On February 22, 2022, U.S. Senator and Chairwoman of the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, Debbie Stabenow (D-MI), and U.S. Senator and Committee member, Amy Klobuchar (D-MN), sent a letter to the U.S. Secretary of Agriculture, Tom Vilsack, requesting improvements to the United States’ biobased economy. Senators Stabenow and Klobuchar’s request focuses particularly on the U.S. Department of Agriculture (USDA) BioPreferred® Program (Program), urging that USDA leverage its long-standing expertise in biobased products to strengthen the Program.

Managed by USDA, the Program aims to increase the purchase and use of biobased products, spur economic development, create new jobs, and provide new markets for farm commodities. The Program has two major parts:

  • Mandatory purchasing requirements for federal agencies and their contractors; and
  • A voluntary labeling initiative for biobased products.

According to Senators Stabenow and Klobuchar, federal procurement for BioPreferred® products has failed to increase, despite significant product innovations in recent years. The two U.S. Senators encourage the U.S. Office of Management and Budget (OMB) and USDA to educate procurement officers on the benefits of BioPreferred® products and routinely to measure progress of the Program. They also request that Secretary Vilsack and the U.S. Secretary of Commerce complete swiftly creation of North American Product Classification System (NAPCS) codes, correlating them to North American Industry Classification System (NAICS) codes to capture the multiple industries into which each product is sold.

EPA Holds Webinar On TSCA Requirements And PMN Process For Biofuels

On February 23, 2022, EPA held a webinar on requirements under the Toxic Substances Control Act (TSCA) and the premanufacture notice (PMN) process for biofuels. As reported in Bergeson & Campbell, P.C.’s (B&C®) January 24, 2022, blog item, in January 2022, EPA announced an effort to streamline the review of new biobased or waste-derived chemicals that could displace current, higher greenhouse gas (GHG)-emitting transportation fuels. According to EPA, it has received more than 30 biofuel PMNs “that collectively describe plans for close to 800 million gallons per year of production of advanced biofuels, that could contribute to annual volume mandates under the [RFS] program and help support the goals of energy security through increasing domestic production” within the United States. Future webinars will cover the TSCA Inventory, nomenclature, and the Bona Fide process; new chemicals risk assessments, including applications of the tools, models, and databases; and new chemicals risk management actions, including TSCA Section 5 orders and significant new use rules (SNUR).

More information on the webinar is available in B&C’s March 1, 2022, memorandum.

EPA Selects 11 Organizations To Receive Funding To Address The Climate Crisis Through Food Diversion

On February 24, 2022, EPA announced the selection of 11 organizations to receive a total of approximately $2 million in funding to divert food waste from landfills by expanding anaerobic digester capacity nationwide. Anaerobic digestion (AD) produces biogas that can be captured and used for energy production and digestate (a fertilizer product) by using microorganisms to break down organic materials, such as food scraps and manure, in the absence of oxygen. By reducing the amount of wasted food in landfills and consequently methane emissions, AD may reduce significantly the impacts of climate change. EPA’s food recovery hierarchy includes AD as a strategy that is preferable to landfilling and incineration, because it contributes to building a circular economy. Each of the selected organizations will receive between $150,000 and $200,000 over two years. A list of the selected projects is available here.

EPA Proposes TSCA New Chemicals Collaborative Research Program, Will Hold Public Meeting In April

EPA will hold a virtual public meeting April 20-21, 2022, to seek individual input on the proposed TSCA New Chemicals Collaborative Research Program. 87 Fed. Reg. 10784. In addition, EPA announced the availability of and is soliciting public comment on the draft document entitled “Modernizing the Process and Bringing Innovative Science to Evaluate New Chemicals Under TSCA.” EPA states that the Office of Chemical Safety and Pollution Prevention (OCSPP) is proposing to develop and implement a multi-year collaborative research program focused on approaches for performing risk assessments on new chemical substances under TSCA. According to EPA, the effort will be performed in partnership with its Office of Research and Development (ORD) and other federal entities to leverage their expertise and resources. Written comments are due April 26, 2022. Registration for the meeting is now open.

According to EPA, the research program will refine existing approaches and develop and implement new approach methodologies (NAM) to ensure the best available science is used in TSCA new chemical evaluations. Key areas proposed in the TSCA New Chemicals Collaborative Research Program include:

  • Updating OCSPP’s approach to using data from structurally similar chemicals to determine potential risks from new chemicals, also known as read-across. According to EPA, this will increase the efficiency of new chemical reviews, promoting the use of the best available data to protect human health and the environment.
  • Digitizing and consolidating information on chemicals to include data and studies that currently exist only in hard copy or in various disparate TSCA databases. EPA will combine the information with publicly available sources to expand the amount of information available, enhancing chemical reviews and enabling efficient sharing of chemical information across EPA. Safeguards for confidential business information (CBI) will be maintained as appropriate in this process.
  • Updating and augmenting the models used for predicting a chemical’s physical-chemical properties and environmental fate/transport, hazard, exposure, and toxicokinetics to provide a suite of models to be used for new chemicals assessments. The goal of this effort is to update the models to reflect the best available science, increase transparency, and establish a process for updating these models as science evolves.
  • Exploring ways to integrate and apply NAMs in new chemicals assessments, reducing the use of animal testing. EPA states that as this effort evolves, the goal is to develop a suite of accepted, fit-for-purpose NAMs that could be used by external stakeholders for data submissions under TSCA, as well as informing and expanding new chemical categories.
  • Developing a decision support tool that integrates the various information streams specifically used for new chemical risk assessments. The decision support tool will integrate more efficiently all the data streams (e.g., chemistry, fate, exposures, hazards) into a final risk assessment and transparently document the decisions and assumptions made. Simply put, this will facilitate the new chemicals program tracking decisions over time and evaluating consistency within and across chemistries.

EPA states that additional information on each of these areas will be provided in the draft collaborative research plan that will be available in the docket by March 14, 2022. Later in 2022, EPA plans to engage its Board of Scientific Counselors (BOSC), a federal advisory committee, for peer review. EPA also intends to issue a Federal Register notice announcing the BOSC meeting and to open a docket for public comments.

Although the notice states that EPA’s background documents and the related supporting materials to the draft are available in the docket established for this meeting, Docket ID Number EPA-HQ-OPPT-2022-0218, nothing is available at this time. EPA states that it will provide additional background documents as the materials become available. After the virtual public meeting, EPA will prepare meeting minutes summarizing the individual comments received at the meeting. EPA will post the meeting minutes on its website and in the relevant docket.

Other News

Wiley Online Library, “Edible, Ultrastrong, and Microplastic-Free Bacterial Cellulose-Based Straws by Biosynthesis
CNN Politics, “DOE Will Build Nation’s First Large-Scale Facility to Turn Fossil Fuel Waste into Rare Materials for Tech
ScienceDaily, “Accelerated Ammonia Synthesis Holds Promise for Conversion of Renewable Energy
India Today, “Green Tech Innovation by TN [Tamil Nadu] College Researchers Replaces 70% Sand in Concrete with Shredded Plastic
Chemistry Europe, “Versatile Chemical Recycling Strategies: Value-Added Chemicals from Polyester and Polycarbonate Waste
The Fence Post, “EPA Proposes to Announce RVOs by June 3
EurekAlert!, “Bacteria Upcycle Carbon Waste into Valuable Chemicals
nature biotechnology, “Carbon-Negative Production of Acetone and Isopropanol by Gas Fermentation at Industrial Pilot Scale