By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on April 28, 2023, that it issued an emergency fuel waiver to allow E15 gasoline -- gasoline blended with 15 percent ethanol -- to be sold “during the summer driving season.” EPA states that this action will provide relief from ongoing market supply issues “created by Russia’s unprovoked war in Ukraine by increasing fuel supply and offering consumers more choices at the pump.” According to EPA, the waiver will help protect Americans from fuel supply crises by reducing reliance on imported fossil fuels, building U.S. energy independence, and supporting American agriculture and manufacturing. EPA notes that current estimates indicate that, on average, E15 is about 25 cents a gallon cheaper than E10.

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By Lynn L. Bergeson and Carla N. Hutton
 
The Office of Management and Budget (OMB) published a request for information (RFI) on April 27, 2023, seeking public input on existing or potential bioeconomy-related industries and products that are established, emerging, or currently embedded in existing industry/manufacturing processes. 88 Fed. Reg. 25711. As reported in our September 13, 2022, blog item, on September 12, 2022, President Joseph Biden signed an Executive Order (EO) creating a National Biotechnology and Biomanufacturing Initiative “that will ensure we can make in the United States all that we invent in the United States.” Under the EO, the Chief Statistician of the United States (CSOTUS) in OMB’s Office of Information and Regulatory Affairs (OIRA) was charged with improving and enhancing federal statistical data collection designed to characterize and measure the economic value of the U.S. bioeconomy. The CSOTUS was also charged with establishing an Interagency Technical Working Group (Working Group) to recommend bioeconomy-related revisions for the North American Industry Classification System (NAICS) and the North American Product Classification System (NAPCS). OMB states that the bioeconomy refers to a segment of the total economy utilizing or derived from biological resources and includes manufacturing processes, technologies, products, and services. These may encompass, wholly or in part, industries and products including fuel, food, medicine, chemicals, and technology. To ensure consideration of comments on potential bioeconomy-related industries and products solicited in the RFI, OMB asked that all comments be submitted “as soon as possible,” but no later than June 12, 2023.
 
The Working Group, through OMB, seeks input on how to identify, classify, and measure best bioeconomy manufacturing, technology, and products, including those that are primarily or exclusively: (a) biobased, (b) components of traditional manufacturing processes, and (c) nascent biobased processes and products. Importantly, according to OMB, input should include information on how particular industries or products are linked to the bioeconomy and, where appropriate and available, evidence should be provided. OMB states that this will afford the Working Group the opportunity to use existing evidence to inform its recommendations. The RFI includes the following questions:

• What information and what high-priority concerns should the Working Group consider in making these recommendations for potential revisions to the NAICS and NAPCS that would enable characterization of the economic value of the U.S. bioeconomy?
   
• Which quantitative economic indicators and processes are currently used to measure the contributions of the U.S. bioeconomy? Are these indicators reasonably accurate measures of the product components, scope, and value of the bioeconomy? Please explain why.
   
• Which industries not currently measured as unique classifications in NAICS related to the bioeconomy should be considered? Similarly, which products not currently measured as unique classifications in NAPCS related to the bioeconomy should be considered? Please describe how a unique classification for such industry or product would meet the principles of NAICS and NAPCS. Please include a description of the industry or product, with specific examples. Please also provide an explanation of how such industry or product would advance understanding of measuring the bioeconomy.
   
• How might potential changes to the NAICS impact existing industry measurements, such as assessing changes in the economic output across current industries, time series measures, or data accuracy?
   
• What role can the NAPCS fill in order to advance measurement of biomanufacturing and biotechnology?
   
• Biobased processes and products that are embedded in traditional industries pose challenges for differentiation and measurement. Are there methodologies that can differentiate these bioeconomy processes from current manufacturing processes to enable measurement? If yes, please explain.
   
• What potential bioeconomy measurement strategies might be considered other than revisions to and inclusion in the NAICS or NAPCS? For example, are there ways the federal government could better collect information to provide better measurement on biobased processes or products in current industries?

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By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Government Accountability Office (GAO) publicly released a report on March 27, 2023, entitled Sustainable Aviation Fuel: Agencies Should Track Progress toward Ambitious Federal Goals. According to GAO, sustainable aviation fuel (SAF) production and use in the United States have increased in recent years; this fuel is now used by airlines at two major commercial airports in California. GAO states that while U.S. production reached 15.8 million gallons in 2022, it accounted for less than 0.1 percent of the total jet fuel used by major U.S. airlines, “fall[ing] well below the previous Federal Aviation Administration goal for U.S. airlines to use 1 billion gallons of SAF per year by 2018.”
 
To reduce greenhouse gas emissions (GHG) from the aviation sector, the White House announced an SAF Grand Challenge in September 2021. The Grand Challenge goal is to supply three billion gallons of SAF per year by 2030 and 100 percent of expected domestic commercial jet fuel use by 2050. GAO was asked to review the federal role in SAF. GAO’s report discusses the state of SAF production and use for the U.S. commercial aviation industry and factors shaping this market, identifies how federal agencies have supported SAF, and assesses how they will monitor progress toward Grand Challenge goals. According to GAO, the roadmap published by the U.S. Department of Transportation (DOT), U.S. Department of Energy (DOE), and U.S. Department of Agriculture (USDA) does not establish performance measures to monitor, evaluate, and report the results of these actions. GAO states that without performance measures, the agencies are not well positioned to evaluate the effectiveness of federal government actions to meet the Grand Challenge goals. In contrast, according to GAO, establishing and using such measures can help identify progress on the extent to which SAF is contributing to emission reductions.
 
GAO recommended that DOT, DOE, and USDA develop and incorporate performance measures into the Grand Challenge roadmap. According to GAO, DOT and USDA concurred. DOE indicated the recommendation is completed and that planned roadmap activities will enable progress to be measured. GAO notes that as discussed in its report, it disagrees that the recommendation is completed.

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 By Lynn L. Bergeson and Carla N. Hutton
 
On March 8, 2023, the U.S. Environmental Protection Agency (EPA) announced the availability of $16 million for two new grant opportunities to support states and Tribes in providing technical assistance to businesses seeking to develop and adopt pollution prevention (P2) practices that advance environmental justice in underserved communities. The Request for Applications for P2 investments include the Pollution Prevention Grant: Environmental Justice Through Safer and More Sustainable Products. The goal of this grant is to address environmental justice by providing P2 technical assistance to businesses (e.g., information, training, expert advice) to improve human health and the environment in disadvantaged communities by increasing the supply, demand, and use of safer and more sustainable products, such as those that are certified by EPA’s Safer Choice Program, or those that conform to EPA’s Recommendations for Specifications, Standards and Ecolabels for Federal Purchasing (EPA Recommendations).
 
To allow a greater number of disadvantaged communities to benefit from the results and lessons learned from projects funded by these grants, EPA states that it is requiring recipients to develop P2 case studies on approaches to make safer and sustainable products more available in disadvantaged communities where the approaches are new, not widely known or adopted, or where the recipient believes detailed information on the project could support more widespread project replication. Recipients must develop at least one case study during the grant period. According to EPA, it will use these case studies to build and share a body of knowledge about P2 approaches to make safer and sustainable products more available in disadvantaged communities that could be implemented by other enterprises.
 
Eligible entities include the 50 states, the District of Columbia, the U.S. Virgin Islands, the Commonwealth of Puerto Rico, any territory or possession of the United States, any agency or instrumentality of a state or Tribe, including colleges and universities, and federally recognized Tribes and intertribal consortia. EPA “strongly” encourages applicants to develop partnerships where they can strengthen their ability to provide P2 technical assistance to businesses in disadvantaged communities.
 
EPA will hold informational webinars on March 21, March 23, March 28, and March 30, 2023. Although EPA’s press release states that applications for the grant are due June 6, 2023, the information on grants.gov states that the closing date for applications is June 20, 2023.

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By Lynn L. Bergeson and Carla N. Hutton
 
In February 2023, the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), published a summary of learnings and potential recommendations on broadening public engagement in the federal regulatory process. The learnings and recommendations were developed from written submissions and a public engagement session in November 2022 with hundreds of participants. OIRA invites feedback on the recommendations as it continues to consider them, with these questions as a starting point:

• Which of the recommendations would most effectively broaden public engagement in the federal regulatory process, especially from members of underserved communities and those who do not typically participate in the regulatory process? Are there recommendations that are not helpful?
   
• Are there obstacles or barriers to greater public participation, especially for underserved communities, that are not addressed by these recommendations? If so, are there other recommendations that we should consider?
   
• Are there existing materials, such as guides or tools, that would be especially effective in revising and potentially implementing these recommendations? What new tools or guidance are needed?
   
• How can intermediaries -- such as trade associations or coalitions -- be helpful in reaching individuals and small organizations or businesses, where have they been successful in doing so, and where might they be insufficient?

Interested members of the public can submit their feedback to .(JavaScript must be enabled to view this email address) as written feedback or recorded audio and video submissions. OIRA will be actively reviewing any submissions received through 5:00 p.m. (EST) March 10, 2023. OIRA states that it is also planning an additional virtual listening session during which members of the public can provide their views on these recommendations, to be held 3:00 p.m. - 4:30 p.m. (EST) on Tuesday, March 7, 2023.

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By Lynn L. Bergeson and Carla N. Hutton

The Federal Trade Commission (FTC) will host a workshop on May 23, 2023, to examine “recyclable” adverting claims as part of its review of the Guides for the Use of Environmental Marketing Claims (Green Guides). The workshop, “Talking Trash at the FTC: Recyclable Claims and the Green Guides,” is free and open to the public, and pre-registration is not required.
 
According to the pre-publication version of the Federal Register notice announcing the meeting, the workshop will cover topics including the current state of recycling practices and recycling-related advertising in the United States, consumer perception of current and emerging recycling-related claims, and the need for any updates or other changes to the Green Guides related to recycling claims. FTC states that the workshop likely will include panels on these subjects, and it will publish a more detailed agenda in the coming months.
 
The workshop will be held at the Constitution Center in Washington, D.C., from 8:30 a.m. (EDT) to 12:30 p.m. (EDT), May 23, 2023. It also will be available for viewing live on the Internet. Written comments related to the issues to be discussed at the workshop must be received by June 13, 2023.
 
More information on FTC’s review of the Green Guides is available in our December 16, 2022, memorandum.

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By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on December 27, 2022, that it is extending the deadline for applications from managers of standards development organizations, ecolabel programs, and other similar organizations for assessment and inclusion in the Environmentally Preferable Purchasing (EPP) program’s Recommendations of Specifications, Standards and Ecolabels for Federal Purchasing, a resource intended to help federal purchasers identify and procure environmentally preferable products and services. To apply to have a standard or ecolabel included in the Recommendations, applicants must submit responses to the scoping questions to .(JavaScript must be enabled to view this email address) by January 24, 2023. EPA notes that responses to the scoping questions may be high level and do not need to include detailed information or justifications. EPA will use the responses to determine the applicant's eligibility and scope of assessment. EPA states that it will review applications by product categories. In spring 2023, EPA will announce the order in which product categories will be assessed. In fall 2023, EPA will notify the first round of applicants of the results of its assessment. More information on the new process to expand the Recommendations is available in our November 7, 2022, blog item.

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By Lynn L. Bergeson and Carla N. Hutton
 
On December 20, 2022, the Federal Trade Commission (FTC) requested public comment on its Guides for the Use of Environmental Claims (Green Guides). FTC intends the Green Guides to help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act. 87 Fed. Reg. 77766. FTC states in its December 14, 2022, news release that it seeks to update the Green Guides “based on increasing consumer interest in buying environmentally friendly products.” As noted in our December 16, 2022, memorandum, publication of the notice in the Federal Register began a 60-day comment period. Comments are due February 21, 2023.
 
FTC states that it expects “many public comments” on the following specific issues:

• Carbon Offsets and Climate Change: The current Green Guides provide guidance on carbon offset and renewable energy claims. FTC invites comments on whether the revised Green Guides should provide additional information on related claims and issues;
   
• The Term “Recyclable”: Among other things, FTC seeks comments on whether it should change the current threshold that guides marketers on when they can make unqualified recyclable claims, as well as whether the Green Guides should address in more detail claims for products that are collected (picked up curbside) by recycling programs but not ultimately recycled;
   
• The Term “Recycled Content”: FTC requests comments on whether unqualified claims about recycled content -- particularly claims related to “pre-consumer” and “post industrial” content -- are widely understood by consumers, as well as whether alternative methods of substantiating recycled content claims may be appropriate; and
   
• The Need for Additional Guidance: FTC also seeks comment on the need for additional guidance regarding claims such as “compostable,” “degradable,” ozone-friendly,” “organic,” and “sustainable,” as well as those regarding energy use and energy efficiency.

More information and an insightful commentary are available in our December 16, 2022, memorandum.

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By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) announced on November 2, 2022, that it launched a new process to expand the Environmentally Preferable Purchasing (EPP) program’s Recommendations of Specifications, Standards and Ecolabels for Federal Purchasing (Recommendations). EPA is inviting managers of standards development organizations, ecolabel programs, and other similar organizations to apply for potential assessment and inclusion in the Recommendations. 87 Fed. Reg. 66176. EPA is also hosting a webinar on November 15, 2022, from 1:00 p.m.-2:30 p.m. (EST) to answer questions from stakeholders about the expansion of the Recommendations and the process for applying. The EPP program’s Recommendations help federal government purchasers use private sector standards and ecolabels to meet sustainable acquisition goals and mandates. According to EPA, they currently include more than 40 private sector environmental performance standards and ecolabels in over 30 purchase categories.
 
EPA states that to apply to have a standard or ecolabel included in the Recommendations, interested applicants should first familiarize themselves with the Framework for the Assessment of Environmental Performance Standards and Ecolabels (Framework), which will be used to assess all eligible applicants. Then, submit responses to the scoping questions to .(JavaScript must be enabled to view this email address) by January 1, 2023. EPA will use the scoping questions to determine eligibility and scope of the assessment. After the application deadline closes, EPA will issue an estimated timeline for full assessments against the Framework by product/service category within 120 days. For each category being assessed, EPA will provide further notice and instruction to applicable applicants.
 
EPA seeks to assess multi-attribute standards and ecolabels that recognize environmental performance leadership and support federal goals and mandates regarding climate, safer chemicals, or other sustainable acquisition priorities of the Biden Administration (e.g., net-zero emissions, low embodied carbon construction materials, and the restriction or elimination of per- or polyfluoroalkyl substances (PFAS) in certified products). EPA is particularly interested in assessing standards and ecolabels in the following sectors: building/construction; infrastructure; landscaping; food and cafeteria services; uniforms/clothing; professional services; and laboratories and healthcare. EPA states that standards and ecolabels that address other sectors already included in the Recommendations are welcome to apply.

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A circular economy requires new thinking about what products we make, from which materials we make them, and where products go at the end of their useful lives. An important but often overlooked aspect of new product development is an understanding of the consequences of the product’s chemical composition and the end-of-life implications of the decisions made at the front end of the process. Working within this framework plays a critical role in building a resilient, dependable, and sustainable system that fosters innovation to develop a circular economy. Register now to join Lynn L. Bergeson, Richard E. Engler, Ph.D., Kate Sellers, and Mathy Stanislaus, as B&C presents “Domestic Chemical Regulation and Achieving Circularity.” 

Topics Covered:

• Achieving sustainability and the promise of the circular economy;
   
• Defining sustainable chemistry under the Sustainable Chemistry Research and Development Act;
   
• Federal policy and TSCA regulatory shifts intended to support sustainability and circularity;
   
• Transitioning chemicals from research and development (R&D) platforms into the market; and
   
• Changes to TSCA and FIFRA that affect chemical innovation.

Speakers Include:

Lynn L. Bergeson, Managing Partner, B&C, has earned an international reputation for her deep and expansive understanding of how regulatory programs pertain to industrial biotechnology, synthetic biology, and other emerging transformative technologies. She counsels corporations, trade associations, and business consortia on a wide range of issues pertaining to chemical hazard, exposure and risk assessment, risk communication, minimizing legal liability, and evolving regulatory and policy matters.

Richard E. Engler, Ph.D., Director of Chemistry, B&C, is a 17-year veteran of the U.S. Environmental Protection Agency (EPA) and is one of the most widely recognized experts in the field of green chemistry, having served as senior staff scientist in EPA’s Office of Pollution Prevention and Toxics (OPPT) and leader of EPA’s Green Chemistry Program. His expansive understanding of the specific challenges and opportunities that TSCA presents for green and sustainable chemistry is a powerful asset for clients as they develop and commercialize novel chemistries.

Kate Sellers, Technical Fellow at ERM, leads a multi-disciplinary team of professionals dedicated to helping companies recognize the business value of product stewardship. Over the past year, Kate has seen an uptick in several product sustainability trends, including implementation of the TSCA life-cycle assessment, circular economy programs, and sustainability initiatives. In addition to her consulting work, Kate teaches “Product Stewardship and Chemical Sustainability” at Harvard University

Mathy Stanislaus was recently appointed as Vice Provost and Executive Director of Drexel University’s Environmental Collaboratory, bringing interdisciplinary expertise in environmental sciences, engineering, law, health, business, economics, policy, and humanities to co-design transformative environmental solutions. Stanislaus joined Drexel from the Global Battery Alliance (GBA), a multi-stakeholder initiative established at the World Economic Forum (WEF), where he served as its first interim director and policy director with a focus on establishing a global transparent data authentication system to scale up electric mobility and clean energy. He also led the establishment of the Platform for Accelerating Circular Economy at WEF. Mathy served for eight years as the Senate-confirmed Assistant Administrator for EPA’s Office of Land & Emergency Management for the Obama Administration, leading programs to revitalize communities through the cleanup and redevelopment of contaminated sites, hazardous and solid waste materials management, chemical plant safety, and oil spill prevention and emergency response. During this Administration, he led the establishment of the G7 Alliance for Resource Efficiency that focused on the opportunities in the supply chain to drive circularity and de-carbonization.

Register Now

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