The International Magazine of Rendering February 2020 RenderFeaturing a dual-drive, solid bowl Dupps-Gratt decanter centrifuge that handles throughput up to 150 gallons per minute*,

Render

Biofuels Industry Breathing EasierHot Time on the Hill

OxidationCan you see

change?

The International Magazine of Rendering February 2020

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4 February 2020 Render www.rendermagazine.com www.rendermagazine.com Render February 2020 5

Rendertorial

Departments

Features10 Oxidation Can you see change?

16 Biofuels Industry Breathing easier

6 View from Washington Hot time on the Hill.

8 Newsline Darling plant named business of the year.

17 People, Places, and...

18 Biofuels Bulletin Reinstatement of tax credit huge win for biofuels.

20 From the Association New year, new challenges.

23 International Report WRO leaders bring experience to the table.

24 Tech Topics Dealing with spills.

25 Mark Your Calendar

26 Labor and the Law Whistle while you work.

28 Classifieds

Editorial staffEditor and Publisher Tina Caparella

Associate Editor James McGibbon

Magazine Production Sierra Publishing Phone: (530) [email protected] www.rendermagazine.com

Contact the North American Renderers Association 500 Montgomery St., Ste. 310, Alexandria, VA 22314 (703) 683-0155 Fax (571) 970-2279 [email protected] www.nara.org

Render (ISSN 0090-8932) is published bimonthly under the auspices of the North American Renderers Association by Sierra Publishing as a public service to the North American and global rendering industry. It is intended to provide a vehicle for exchange of ideas and information pertaining to the rendering and the associated industries. Render is distributed free of charge to qualified individuals upon written request. Publisher reserves the right to determine qualification. Periodical postage paid for at Collinsville, OK, and additional mailing offices.

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Contents February 2020 Volume 49, Number 1

ENDERRENDERRThe International Magazine of Rendering

On the CoverThanks to industry engagement and support, B.J. Bench of Tyson Foods believes the future is bright in the oxidation conversation. p. 10

Orthman screw conveyors are designed specifically for the rendering industry including wear liners, screws with continuous weld both sides, schedule 80 pipe, abrasion resistant materials such as AR 400, 3-bolt drill, close couple and clock, bolt pads or external collars, troughs with liners ( AR, UHMW, Carbon steel, etc.), wear bars, shaftless conveyors for large bones, offal, and hard to move products, Orthman will supply 3-D solid modeling drawings on complete assemblies as well as parts for easy replacement to assure the part will fit the first time.

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Industrial screw conveyors are available for conveying a variety of different materials. Orthman Conveying Systems offers a full line of screw conveyors and components, including water-jacketed heat-transferring models and multiple screw “live bottom” type feeder units.

Orthman Conveying Systems’ screw conveyors and components are ruggedly built, meeting all CEMA specifications. Studied attention to detail during the building process eliminates costly installation and operation errors. Heavy-duty construction reduces maintenance and extends the life of all Orthman equipment.

The shaftless conveyor is designed for wet, sticky, stringy, odd shaped, products that are difficult to move in conventional screw conveyors. Removing the pipe allows for less area for product build up, higher fill rate, no hanger bearings, no end bearings, heavy duty alloy flighting.

Orthman Conveying Systems provides the following types of discharge gates.• Air Operated • Rack & Pinion • Electric • Hydraulic • Hand Slide

Meeting our client’s performance expectations with quality machinery is our number one goal.

It doesn’t take much to ruffle this editor’s feathers (hubby would probably disagree), but a statement by Impossible Foods’ Chief Executive Officer Patrick O. Brown, PhD, on the release of the company’s new faux pork product curled my hair more than it already is. “We’re accelerating the expansion of our product portfolio to more of the world’s favorite foods. We won’t stop until we eliminate the need for animals in the food chain and make the global food system sustainable.” What is this guy smoking (he is based in California, after all)? The company’s goal of eliminating the need for animals in the food chain is self-serving and definitely not attainable. Does Brown really believe we will provide enough affordable protein to the 8.5 billion people expected worldwide by 2030 by growing more plants on land that is already scarce and mixing it with binders and flavorings? (The primary protein in Impossible Foods’ burger and “pork” products is soy with sunflower and coconut oils as fat sources.) Add to that the approximate $8.99 per pound price tag for Impossible Foods’ burger compared to real ground beef at less than half that cost and the meat-substitute is not affordable (and, hence, not sustainable) for low- and middle-income consumers. Animal protein production is the most efficient it has been in decades and continues to evolve. United States ranchers are producing more meat with fewer animals than ever before. Combined with rendering the by-products consumers do not eat into commodities that go back into the food chain as animal feed or for industrial uses and the sustainability of food animal production just went up. Everybody has their agenda, we get that, and plant-based products are beneficial alternatives to those who cannot or choose not to eat meat. Impossible Foods needs to stop trying to “eliminate the need for animals in the food chain” and realize that all proteins will be necessary to feed a growing world. Tyson Foods knows, so it has created a Coalition for Global Protein to help advance the future of sustainable protein. Time to all work together. R

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Hot Time on the Hill

View from Washington By Steve Kopperud, SLK Strategies

Continued on page 9

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Climate change is real. Less than three percent of anyone asked about the existential challenge of shifting climate denies it is here and getting stronger. Roughly 45 percent of those asked by various pollsters believe the federal government must “do more” to mitigate the impacts of climate change and because this is a year in which there is a November general election, Washington, DC, is moving full bore. Magnifying the challenge of climate change is that it is now both a pragmatic and political issue, and it is the latter status that has folks in agriculture nervous. Stupid things can happen when political solutions to pragmatic problems are adopted. Major parties and candidates have seized on the issue because survey numbers show that voters care. The United States (US) Congress will act on climate change in 2020, and just how far it will go in imposing “solutions” on business and individuals is purely incumbent on the November 3rd general election. Agriculture and agribusiness “get it” when it comes to climate change. In fact, food producers and the industries that rely on them generally understand persistent shifts in current and future weather patterns better than most because they confront and cope with the phenomena daily. Those with boots on the ground in rural America and the experts they trust know production agriculture’s role in helping mitigate climate shifts is significant, yet agriculture is also gun-shy when it comes to the blame game played to hype the overarching issue. Several groups both at home and abroad have alleged animal agriculture and, to a lesser degree, crop production are two of the biggest greenhouse gas (GHG) emission culprits. “According to the World Economic Forum, the beef and dairy industry is responsible for more greenhouse gas emissions than the world’s biggest oil companies, with the combined emissions of the top meat and dairy companies exceeding those of highly industrialized nations such as Germany or the UK,” if the United Nations, Department of Economic and Social Affairs, is to be believed. US university experts, however, including Dr. Frank Mitloehner, Department of Animal Science professor specializing in measurement/mitigation of airborne pollutants/GHGs from livestock production at the University of California-Davis, and the Environmental Protection Agency (EPA) report that US agriculture overall contributes nine percent of total GHG emissions, with animal agriculture clocking in at 3.9 percent or so. Complicating agriculture’s ability to quickly rise to the occasion of climate change mitigation is that 90 percent of Congress and most of the public do not understand the first thing about how food is produced sufficiently to feed 300-plus million US citizens and a big chunk of the world. They do not understand where the components of those foods come from, how the by-products of that production are reused, and how the wrong policy move can throw a major wrench into the cogs of that machine. Beginning at the top of the political food chain, President Donald Trump’s administration has arguably been effectively silent when it comes to climate change. Trump has taken heat

from critics both elected and environmental for hamstringing EPA, gutting air and water protections, doing too little if anything to support alternative energy, and so on. Perhaps the move most galling to his critics and leaders of 195 nations was Trump’s 2017 declaration he would, at his first opportunity, withdraw the United States from the Paris Agreement, an accord signed by President Barack Obama in 2015. The agreement’s goal is to prevent the planet from warming by more than 1.5 degrees Celsius from mid-1800s levels by limiting emissions of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, and other industrial gases. While nonbinding, Obama committed the United States to reducing GHG emissions 26–28 percent by 2025 from 2005 levels. Trump contends the United States already leads most of the world in GHG reductions through voluntary and existing regulatory programs, and that major emitters, including China and India, get a Paris accord pass on GHG reductions. Last November, Trump—calling the agreement “a total disaster” and anticompetitive for the United States—affirmed his pledge, formally notifying the rest of the planet that America will walk away from the accord on November 4, 2020, the earliest that such action can be taken under the rules of the accord and one day after the US general election. World leaders pledged to move forward with the accord’s goal without the United States, and Trump has made noises he would be willing to take a second look at the accord if the US GHG reduction commitment was reduced and obligations by other nations, notably India and China, were increased. The Trump administration was also outed by Senate Agriculture Committee ranking member Senator Debbie Stabenow (D-MI) after a Politico investigation and extensive reporting in 2019 revealed the White House was pressuring various federal agencies, including the US Department of Agriculture (USDA), to undermine climate science while putting in a box federal research and studies dealing with the negative impacts of climate change on agriculture broadly. “It is inexcusable that the Trump administration is jeopardizing our future by systematically attacking public science and undercutting climate research,” Stabenow said when the Democratic Policy and Communications Committee, which she chairs, released its report on the administration’s actions. The report included allegations the Trump administration undermined its own advisory panels, and “censored” research by removing references to climate change from “numerous agency webpages, press materials, and proposed rulemakings.” It also carried a list of 1,400 climate change studies done by USDA scientists during Trump’s tenure that the agency “largely failed to publicize.” The department denied Stabenow and her organization’s allegations. Both sides of the congressional aisle are jockeying to produce “comprehensive” climate change legislation. All candidates vying for the Democrat presidential nomination have talked about climate change actions, and while touring

Iowa ahead of the February caucuses, proudly rolled out proposals ranging from the farcical to the practical, depending on their understanding of agriculture and the rural economy. Republicans have long ceded environmental issues to Democrats, believing a small government/regulatory rollback-relief strategy will take the day. Significant voting blocs, however, including millennials, gen Z’ers, and suburban women, prioritize climate change positions in their candidate evaluations and that reality has both parties paying attention. The first shot from the congressional legislative cannon was the unveiling last year of the so-called Green New Deal (GND), the brainchild of far-left firebrand Representative Alexandria Ocasio-Cortez (D-NY). In its original iteration, the GND was an environmental and social polemic, combining GHG reductions and an end to fossil fuel use with social welfare, employment, and housing reform programs. As legislation introduced by Ocasio-Cortez, the GND never caught fire, largely because it is too ambitious and unrealistic in its goals and timelines. Even House Speaker Nancy Pelosi (D-CA) shrugged it off when questioned by the media. “We welcome all the enthusiasm that people want to put on the table, and the Green New Deal is one of them, but we have to operate in a way that’s evidence-based, current in its data,” Pelosi said at press conference last year. In the Senate, the bill was introduced by Senator Ed Markey (D-MA), and landed with a legislative thud. Noting the number of sitting Democrat Senators lining up to run for their party’s presidential nomination, Senate Majority Leader Mitch McConnell (R-KY) decided to bring the bill to the floor

for a vote, an action derided by the Democrats as a “dog-and-pony show.” For McConnell, it was a move to get Democrats on record either for or against the overly ambitious and expensive GND. In the end, 54 Republicans and three Democrats voted against the measure; 41 Democrats and two Independents voted “present.” The GND, for all intents and purposes, is dead on Capitol Hill; however, several of the Democrats seeking their party’s presidential nomination have seized on parts of the GND plan. Senator Bernie Sanders (I-VT)—who seeks smaller, more organic, and “greener” producers—and Senators Elizabeth Warren (D-MA) and Amy Klobuchar (D-MN) have embraced the broad goals of the plan. Former New York City Mayor Michael Bloomberg called the GND a “political non-starter” before he decided in 2019 that the White House is his preferred new address. The now Trump-signed US-Mexico-Canada Agreement (USMCA) was criticized generally by Democrats for allegedly weak environmental provisions, but in the eleventh hour, Democrats specifically cited the treaty’s lack of any substantive action to address climate change. “Predictably, it [USMCA] does not address the effects of climate change, the most glaring flaw for the future of trade and the future of the planet,” House Ways and Means Committee trade subcommittee chair Representative Earl Blumenauer (D-OR) said at a hearing last May. The White House says USMCA’s environmental sections are the strongest


Darling Plant Named Business of the YearNewsline

Darling Ingredients/DarPro office staff and managers include (from left) Jeff Lewis, Kevin Jahnke, Niki Meyer,

Scott Sargent, Heidi Stauffer, Paul Willner, and Jaymee Nelson.

Photo by Chuck Hunt

Washington Continued from page 7

The Blue Earth Chamber of Commerce in Blue Earth, Minnesota, has selected Darling Ingredients Inc. its Business of the Year. “We are extremely honored,” said Scott Sargent, manager of the rendering plant on the south edge of town. “We are proud to be a part of the community of Blue Earth, and our company and employees try to give back to the community as much as we can.” Darling Ingredients is a sponsor of the area’s annual campout food shelf drive. The Blue Earth-based business has been around since 1928 when Emil Kark came to the city and started Blue Earth Rendering Company for the disposal of dead livestock animals. The company remained in the Kark family until 1989, when it was purchased by Darling International, now Darling Ingredients, which also has a long history dating back to 1882 in Chicago, Illinois. First known as Ira C. Darling and Company after its founder, it has also been called the Darling-Delaware Company, among other names. It became Darling International Inc. in 1993, then Darling Ingredients Inc. in May 2014. “That is the parent company name,” Sargent explained. “There are two other brand names, DarPro Solutions and DarPro Ingredients. DarPro Solutions is the group of non-food processing plants, while DarPro Ingredients covers the food processing plants.” Over the past few years, Darling Ingredients has grown by leaps and bounds, Sargent said, purchasing other similar companies around the world. Today, Darling Ingredients owns over 200 processing plants on five different continents. “Our official name here is DarPro Solutions—Blue Earth Site,” said Sargent. “But we know many folks still refer to us as Darling International and that is fine.” The plant in Blue Earth has two main products it produces: tallow and grease, which are used as calorie sources in livestock/animal feed or for biofuels, and meat and bone meal, which is a source of protein for livestock. “Everything our company makes is pretty much a recycled product,” Sargent commented. “We help reduce the carbon footprint and produce energy from waste.” The Blue Earth DarPro plant employs 35 full-time individuals, with four working in the main office, 15 truck drivers, and the rest involved in the processing plant or maintenance. “Our truck drivers run 13 routes every day,”

By Chuck Hunt, Editor, Faribault County Register

Sargent noted. “They are picking up deceased animals in much of southern Minnesota as well as five or six counties in Iowa.” With the rise in the number of hog containment facilities in the area, Sargent says most of the animals they pick up are now hogs. The company also collects used cooking oil. “This is really a team effort here,” Sargent boasted. “We have a great team working at this plant in Blue Earth.” He himself starting working at Darling back in the 1990s, including at plants in Missouri, Iowa, Wisconsin, and Minnesota. He came to Blue Earth in 2011. Office manager Heidi Stauffer has worked at the Blue Earth plant for 24 years, assistant plant manager Paul Willner began working there in 1986, and plant superintendent Jeff Lewis, as well as several other current employees, came on board in 1984. Wastewater treatment manager Kevin Jahnke has been employed at the plant for 19 years. “We are like a family,” Stauffer remarked. “When you work with people every day for many years, you all become just like a family.” R

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in any treaty entered into by the United States. Some now demand that US involvement in future multilateral trade deals include language on climate, including ozone depletion and related issues. The Sierra Club contends, “As a whole, this deal [USMCA] fails to curb NAFTA’s [North American Free Trade Agreement’s] threats to wildlife, clean water, or the health of our communities.” In a related development, some congressional Republicans are beginning to warm to the idea of actions to mitigate climate change, at least incrementally. There is increasing talk about a carbon tax, a plan killed off 10 years ago when a controversial carbon cap-and-trade bill died. Some GOP lawmakers have notably moved from “denying” climate change to embracing the need to act in some fashion. This shift among naysayers is due in no small part to pressure from the business community, including louder industry voices advising Trump to walk away from his plans to pull the United States out of the Paris Agreement. Blumenauer said, “it’s a decidedly different tone than we’ve heard in recent years.” That “tone” is being echoed more broadly in Congress, with the House taking the noticeable lead. In late January, House Democrats on the Energy and Commerce Committee rolled out the details of their CLEAN Future Act, “a bold new plan to achieve a 100 percent clean economy by 2050.” At the same time, the House Select Committee on the Climate Crisis—created by Pelosi as part of the deal to win votes for her second speakership—is expected to roll out its own policy plans. Both proposals come from the “spaghetti school” of policy development, meaning throw every proposal out there into a pot, stir them around a bit, throw some at the wall, and see what sticks. Those proposals that “stick” become the caucus’s go-to program goals. The House GOP (that caucus began policy powwows in late January) knows it cannot be found empty handed if the Democrats are proposing climate change remedies. The GOP is also recognizing it cannot afford to let the Democrats woo all voting blocs concerned with the climate, including young people and suburban women, if it wants to take back the House, retain the Senate, and keep Trump as president. When it comes to agriculture and agribusiness and how they may fare in congressional policy development and legislation designed to remedy climate change, most national groups have come out of the closet, abandoned introspection, and are openly talking about the need to find practical solutions to climate problems, with a focus on holistic approaches that do not penalize one end of the food chain to benefit the other. These discussions have evolved from state level talks among producer groups to national confabs that include producer groups, input suppliers (including the feed industry to processing organizations), transport companies, storage firms, food companies, state and federal legislators, and cabinet officers, both current and former. Several politicians call on crop producers to “embrace” various conservation practices already in common use, including planting cover crops, no-till production, and reduced chemical fertilizer use to facilitate carbon sequestration. One university climate scientist at Texas Tech University told The Progressive Farmer/DTN that while farmers are not big GHG

emitters, they are big in carbon sequestration. “Farmers have a huge role to potentially drawing down carbon and sequestering in the ground,” said Dr. Katherine Hayhoe, who says there must be a price on carbon if only to boost rural economies. To Hayhoe’s point, the prospective approaches tossed on the table by everyone from sitting members of Congress to White House wannabes to industry executives include a couple of recurring notions. In some fashion or another, producers and others will need to be paid to modify current industry practices to reduce GHG emissions. The two approaches talked about most often are a carbon tax and/or a cap-and-trade system to incentivize GHG emissions mitigation. Keep in mind, a cap-and-trade system was proposed nearly a decade ago and died a very ugly political death. One of its most aggressive opponents at the time was the American Farm Bureau Federation and a broad coalition of ag interests. Remembering the key to success of either or both approaches is how well-designed each system is. Either could theoretically provide adequate incentive to dramatically reduce and control GHG emissions. Analysts argue both have distinct advantages and disadvantages. Put simply, a federal carbon tax would create a dollar amount to be charged to companies for every ton of GHG emissions, including, it is assumed, farms and ranches and others in ag/agribusiness. A cap-and-trade system would federally establish a market/trading program with authority to create a set number of GHG “allowances” each year. These allowances could be auctioned to the highest bidder or sold on a secondary market exchange, creating a price for carbon and other GHGs. At the same time, some politicians grasp at what they believe to be popular albeit benign suggestions, including a wholesale switch to electric vehicles. Such a broad shift to electric means an effective end to the market for biofuels, including biodiesel, renewable diesel, ethanol, and cellulosic ethanol. The rendering industry has joined with other national agriculture organizations to demonstrate its ongoing innovation practices of which the public is unaware and of which Congress needs to be reminded. Key messaging includes the fact rendering recycles 99 percent of the inedible parts of livestock and poultry raised for food, keeping these by-products out of landfills and other disposal methods. Otherwise unusable animal by-products are recycled into important food animal/pet food ingredients and consumer products. Rendering provides a far more efficient alternative to other disposal methods, avoiding at least 90 percent of potential GHG emissions from composting or landfilling waste, while sequestering five times the GHG emissions the process emits. Also important is the increasing use of animal fats and oils as feedstocks for biodiesel/renewable diesel. “All is repurposed and reused. Nothing is wasted,” NARA told the House Select Committee on the Climate Crisis in its comments. “Without rendering, the many various products made with rendered ingredients would have to be produced with other less sustainable and costlier inputs.” Details of rendering’s environmentally friendly contributions can be found at www.nara.org. R


By B.J. Bench, PhDSenior Director Food Safety and Quality AssuranceTyson Foods Ingredient Solutions Group/River Valley Ingredients

Editor’s Note—The following is the first of a two-part article on oxidation. The second half will appear in the April 2020 issue of Render.

OxidationOxidationCan you see

change?

Continued on page 12

Publication articles typically do not start with acknowledgements, but this author is atypical. The work performed on oxidation over the past two years and shared below would not be possible if it had not been supported by the Tyson Foods Inc. Ingredient Solutions team. This includes leadership, operations, supply chain, and sales teams across the business unit. Specific thanks go to my food safety and quality assurance and the research and development team members that support the business unit as they are engaged in sample collection, data analysis, and project designs. A special thanks to the Tyson Foods laboratory network for all the services provided for many studies. Lastly, none of this work would be possible without the industry engagement and support as well as all the collaborators who have donated time and resources to numerous projects. The future is bright in the oxidation conversation. One would think this story began on February 1, 2018, at the International Production and Processing Expo International Rendering Symposium in Atlanta, Georgia, where this author first presented, at the request of Dr. David Meeker, North American Renderers Association (NARA), on “Oxidation and Its Challenges.” When trigger words such as oxidation, rancidity, off odor, degradation, and, most importantly, peroxide value (PV) come up in any conversation concerning rendered meals or fats, tempers flare and frustration ensues. Conversations have been had with people who have years of experience in the rendering, pet food, antioxidant, laboratory, and animal feed industries, and the discussions always concluded that there is little to no progress on information sharing, research, and innovation in the realms of oxidation. I am proud to report the aforementioned paradigm has seen a major shift with one invitation from Meeker. Many versions of that initial presentation have been given at various conferences, laboratories, vendors, and ingredient and animal food manufacturers, but that first one two years ago introduced four distinct oxidation challenges that have since evolved. This is due to conversations initiated among industry experts, the Poultry Protein and Fat Council, NARA, the Fats and Proteins Research Foundation (FPRF), and the Pet Food Alliance (PFA). In conjunction with Colorado State University, PFA brings together industry experts from pet food, animal feeds, rendering, antioxidant, laboratories, analytical equipment manufacturers, and other industries. Within this consortium, an oxidation group was established creating a team to help drive the oxidation conversation to where it is today. When an alliance group was surveyed to write down words that come to mind when thinking of oxidation, 47 replies were recorded. Considering the variables related to oxidation, not one single item stands alone; it is a culmination of responses that influence oxidation. The range of words shared were related to weather/seasonality, time, antioxidant, raw material utilized in production, process controls, and testing methods.

Understanding Degradation The first challenge presented in the inaugural presentation—understanding degradation—provided a glimpse into how this author conceives oxidation as truly

a nightmare of a concept. Much sleep has been lost due to oxidation/degradation events and trying to understand a phenomenon that is so complicated and convoluted that the best way to demonstrate the concept of oxidation is to compare it to horror movie characters in order to paint the picture of simple oxidation mechanisms taught in school1, to extremely complex lipid oxidation cascades. The major concept of understanding degradation is the fact that rendered meals are made up of extremely complex biological tissues that contain enzymes (e.g., oxidases, reductases, peroxidases, and many more) that under aerobic conditions (molecular oxygen present) will create reactive oxygen substances (ROS). A lot of research in the oxidation space has focused on very clean matrices such as vegetable, canola, and olive oils. These ROS create numerous cascading reactions in biological matrices in the presence of various substrates. In figure 1, an example of the xanthine oxidase reaction mechanism is presented in an oxidative stress model.2 What is unique about this mechanism is the fact that when the enzyme is reacted with molecular oxygen, it creates an oxygen radical. This radical then reacts with hydrogen peroxide causing a massive cascading effect creating various ROS species. With all of these reactions in a complex matrix, it is hard to determine what the true reaction pathways are in various rendering raw materials without further research. What is forgotten is that renderers do not have the luxury of processing fresh materials. Many rendering raw materials are transported over a long distance in trailers that are not refrigerated. When raw materials are exposed to the environment, various temperatures, and time from transport to process variability, environmental bacteria species such as Pseudomonas proliferate and cause degradation of the tissues and fat through various mechanisms. An example of

the by-products of tissue degradation is biogenic amines. While it is known that environmental bacteria utilize proteins and lipids to proliferate, the chemistries are not understood in the total impact of oxidation in finished rendered meals and fats. The key takeaway from the challenge of understanding degradation is that rendered meals and fats are subject to various chemical pathways that create ROS. These small molecules come into play during the discussion of various measurements to evaluate oxidation through various analytical methodologies.

Understanding Antioxidants The second challenge is the understanding of antioxidants in rendered meals. There is a misnomer in the rendering industry that with the application of antioxidants, oxidation problems will not exist. In fact, antioxidants will provide stabilization of the fat within the meal with proper application. What has been interesting in trials is that PV will stabilize, but then begin to rise over time and the consumption of antioxidants will be steady (figure 2). This phenomenon aids in the illustration of the complex chemistries present in rendered meals that are not truly understood and influence the PV analysis. To corroborate this event, the usage of supercritical fluid extraction was performed on a chicken meal sample two weeks after production. Supercritical fluids are generated when gases are placed under specific pressure and temperatures. In this state, the gases diffusivity will be liquid like, but have the viscosity of a gas, making it great for extractions. The supercritical fluid extraction was performed with pure carbon dioxide and no organic co-solvent. Typical fat organic solvent extractions from rendered meals will encompass petroleum ether, hexane, chloroform, ethanol, propanol, and others. Figure 3 illustrates two test tubes and a vial. The test tube on the left represents chicken meal extracted with petroleum ether and the right test tube is pure chicken meal fat from the mechanical press in the production process. The fat extracted shows no semblance to the pressed fat. The vial in figure 3 illustrates the fat from the supercritical fluid extraction, which closely resembles mechanically pressed fat. When PV was assessed, the production sample was tested in triplicate ranging from 2.5 to 4 milliequivalent (mEq) per

Figure 1. Various pathways of ROS formation in the management of oxidative stress

Figure 2. Antioxidant consumption in relation to PV increase over time

10 February 2020 Render


Oxidation Continued from page 11

kilogram (kg) fat using petroleum ether as solvent. Two week later, that same sample was extracted with petroleum ether and supercritical fluid and the PVs were 16.5 and 2.5 mEq/kg fat, respectively. This data demonstrates that PV continues to rise, potentially due to other extracted compounds that influence results.

Understanding Laboratory Methods The third challenge centered around understanding various laboratory methods and what the data truly meant. This section evaluated rancidity methods commonly utilized in rendered meals such as total volatile base nitrogen, 2-thiobarbituric acid reactive substances, and PV. Emphasis was placed on the age of the methods, emerging technologies to determine values, validations across various matrices being non-existent, and the lack of proficiency samples for rendered products. The fact that these methods were developed in other matrices and never suitable for rendered meals was discussed. An example of this can be seen in the scope of the American Oil Chemists’ Society (AOCS) Official Method Cd 8b-90 where it clearly states that the PV method is “applicable to all normal fats and oils, including margarine.” It also states, “This method is highly empirical, and any variation in the test procedure may result in erratic results. This method will give erratic results at peroxide value = 70.”3

What is not mentioned is an extraction method for non-oil matrices such as rendered meals. This is where the wheels fall off for measuring PV across various rapid platforms and laboratories ranging from in-plant to commercial third-party entities. When the PV method chemistries are thoroughly reviewed, four factors that potentially create elevated results in rendered meals begin to be revealed. Before evaluating, the AOCS method reference chemistries must be reviewed. To determine PV, potassium iodide is reacted with a peroxide oxidizing into two corresponding alcohols and iodine (I) as seen in reaction 1 below. Iodine is reduced back to iodide (I-) by the back-titration with sodium thiosulfate (Na2S2O3) in reaction 2. A color change is demonstrated using a starch indicator.

Reaction 1. R-O-O-R + 2I- + 2H+ → 2ROH + I2Reaction 2. I2 + 2S2O3

2- → 2I- + S4O62-

The oxidation of iodide to iodine can occur with more than just peroxides. The four factors potentially affecting measuring the true PV value are:

1. Decomposition of iodide in presence of oxygen (O2): Once fat is extracted and solubilized, potassium iodide is added and stirred mechanically. This reaction is immediate and if not titrated in due time, elevated bias can occur.

a. 4I- + O2 + 4 H+ → 2I2 + 2 H2O2. Metal oxidation of iodide to iodine: Copper (Cu)

and iron (Fe) cationic species react with iodide. Petroleum ether extracts of rendered meals demonstrate the presence of copper and iron at various levels. The variation in levels could potentially lead to an elevated PV value.

a. 2Cu2+ + 4I- → 2 CuI + I2b. Fe3+ + 2I- → 2Fe2+ + I2

3. Natural occurrence of iodine in tissues: Many foods contain naturally occurring iodine (table 1).4 If iodine is presented in raw materials and rendered, it is further concentrated, potentially influencing PV results in various matrices. Iodine is soluble in petroleum ether at 25.2 grams per 100 grams at 25 degrees Celsius.

4. Petroleum ether and other solvents extract organic compounds: When meals are extracted with organic

Table 2. Comparative data between vacuum extraction and orbital shaker extraction with petroleum ether Orbital shaker–Vacuum extraction 150 rpm, 15 minutesSample Replicate PV* Sample Replicate PV* 1 4.20 1 5.301 2 4.24 1 2 5.29 3 4.23 3 5.32 1 4.22 1 5.362 2 4.15 2 2 5.32 3 4.17 3 5.29 1 4.26 1 5.403 2 4.32 3 2 5.44 3 4.30 3 5.26 1 4.26 1 5.374 2 4.23 4 2 5.41 3 4.23 3 5.38*(mEq/kg fat)

Figure 3. Test tubes of chicken meal fat extracted with petroleum ether (left) and mechanically pressed fat from production process (right). Right insert is a vial of supercritical fluid extracted fat.

Table 1. Demonstrating the natural occurrence of iodine in various matrices4

Mean iodine content in fresh weight samples with range or ± standard deviation (ng/g) International Great Britain Finland USA SwitzerlandFood 1923–1949 1977–1979 1980 1982–1991 2000–2001Fish, marine 832 (163–3180) 750 (320–1440) 460 1160 (±880) 486 (89–1593)Fish, freshwater 30 (17–40) — 165 — 98 (3-408)Meat 32 (27–97) 50 (20–90) < 50 180 (±180) 17 (2–155)Poultry — 75 90 170 (±190) 18 (10–169)Milk 47 (35–56) 230 (50–550) 169 200 (±80) 124 (59–199)Eggs 93 (1–324) 525 170 480 (±390) 324 (247–428)Whole meal 59 (2–320) < 50 < 100 — 33 (11–47)Bread 56 (2–132) (< 50–100) 100 910±840 310 (20–815)Fruits 18 (10–29) (< 20–80) — < 30 3 (0.3–13)Vegetables 29 (12–201) (< 20–280) < 10 < 10 5 (1–22)

solvents, more than just peroxides are extracted as evidence in figure 3 test tubes representing chicken meal extracted with petroleum ether versus mechanically pressed fat. Many small molecules such as aldehydes, ketones, alcohols, and other species can react with iodide and iodine potentially influencing the iodide/iodide redox reaction.

With the chemistry reviewed (whew!), the lack of fat extraction standardization is the most damning variable influencing measuring PV across various facilities. During a survey of various ingredients, finished animal foods, laboratories, and universities, a plethora of organic solvents, extraction methods for fat, and evaporation of organic solvents to obtain fat for titration were documented. Solvents used to extraction included: petroleum ether (most common), hexane, chloroform, dichloromethane, methanol, isopropanol, iso-octane, toluene, ethanol, propanol, and cyclohexane. Once the solvent was added to a rendered meal, it is another hot mess to get to a final extracted fat. Modes of extractions included orbital shakers, sample with stir bar whipping sample for various periods of time, and hot solvent extraction through various mechanical means. This may not seem significant, but exposing a sample to oxygen can lead to a difference as seen in table 2 with data provided by Dr. Namal Senanayake, scientific officer at CFS North America, where a fat extraction comparing vacuum extraction (no oxygen) to an orbital shaker exposed to the environment were done side-by-side with four samples. The average difference between the methods was 1.1 mEq/kg fat. Other extraction methods included not extracting fat from meal samples. Samples were stirred with solvent and titrated obtaining a PV value of 0.00 mEq/kg fat. The last variable would be after fat extraction and the evaporation of solvents. Methods ranged from rotary evaporation, to air dry in a hood overnight, and evaporation on a hot plate—a great way to catch a hood on fire. Within the animal food manufacturing industries, a PV equal to 10 mEq/kg fat is an industry standard with many

companies asking for a lower value. This value has yet to truly be substantiated in animal foods. The PV of 10 mEq/kg fat is often challenged from a quality perspective as limits used to be non-existent followed by a standard of 20 mEq/kg fat. From a human olfactory sensory standpoint, it is tough to differentiate on samples between 10 and 25 mEq/kg fat. One survey conducted by the PFA oxidation group included major pet food and animal food manufactures around PV and where the 10 mEq/kg fat standard evolved. Questions and answers were:

1. How was it determined that PV would be the test to use for freshness criteria?

a. No earthly idea.b. Carried over from food industry.c. Quickest test to measure oxidation.d. Determined to measure pet food oxidation

for food refusal.e. No other test to measure oxidation quickly.

2. How or why was 10 mEq/kg fat chosen as the maximum?

a. No clue.b. Palatability related issues leading to

low value of PV demanded by pet food companies.

c. Told from research and development that anything above 10 would lead to palatability issues.

d. Antioxidant companies selling their products on a basis of better product stability for improved fat quality.

Based on these results and no substantial peer reviewed data published on the impacts of PV on pets and animals, the need for reliable data is inevitable when load rejections occur and a claim is involved between the supplier and animal food manufacturer. A survey result to evaluate the global financial impact of PV on the animal food industries was $40–$100 million and potentially larger based on plant down time due to lack of material for production. R

Laboratory studies will be presented in the April 2020 issue of Render. For interest in participating or learning more about the Pet Food Alliance Oxidation Working Group, contact the chair, Jacob Swann of Tyson Foods at [email protected], or co-chair, Bruno Chauvet of Mars Pet Care at [email protected] For any questions or comments on the information presented thus far, email the author at [email protected].

References:1. Falkesborg, M.; C.C. Berton-Carabin, L.Z. Cheong. 2016. “Ionic

Liquid in the Synthesis of Antioxidant Targeted Compounds.” Ionic Liquids in Lipid Processing and Analysis 10:317-346

2. Valko, M., D. Leibfritz, J. Moncol, M.T.D. Cronin, M. Mazu, J. Telser. 2007. “Free Radicals and Antioxidants in Normal Physiological Functions and Human Disease.” The International Journal of Biochemistry & Cell Biology 39:44-84.

3. www.aocs.org/attain-lab-services/methods/methods/method-detail?productId=111547

4. Haldimann, M., A. Alt, A. Blanc, K. Blondeau. 2005. “Iodine content in food groups.” Journal of Food Composition and Analysis 18:461-471.

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Biofuels Industry Breathing EasierBy Joe Gershen, Encore BioRenewables

People, Places, and...Coast Packing President is Citizen of the Year In recognition of a career marked by both business innovation and service to the community, Coast Packing Company President and Chairman Ron Gustafson received the first-ever Citizen of the Year Award conferred by the Vernon (California) Chamber of Commerce. Gustafson will be honored in March for his distinguished career as an innovator and leader in the meat processing industry, most notably for technological advances at the Coast Packing plant that triggered substantial business growth. Coast is the number one supplier of animal fat shortenings in the Western United States. Gustafson represents the third in a line of four generations of leadership at Coast. Coast, a privately held corporation, started as a livestock and meat packing business in 1922, and is now a regional food-industry powerhouse. Coast Packing sells to major manufacturers, distributors, retailers, smaller food service operations, leading bakeries, and many lesser concerns. Gustafson is president emeritus of the North American Meat Institute (NAMI) Scholarship Foundation and has served as a director of both the Western States Meat Packers Association (WSMPA) and National Meat Association, a predecessor organization to NAMI. Gustafson’s family has a long history in the meat industry. His grandfather, Anton Rieder, owned Coast Packing and was a founding member of WSMPA. Gustafson’s son, Eric, currently serves as Coast’s chief executive officer and is on NAMI’s Executive Board and Board of Directors. Gustafson received a bachelor of arts degree in industrial technology from California State University-Los Angeles and a secondary teaching credential from the State of California in 1968. After two years in the United States Army, he rejoined the company full-time in October 1970 and received a master’s degree from Pepperdine University in 1982.

Darling Ingredients Buys Out EnviroFlight Darling Ingredients Inc. has acquired the 50 percent joint venture interest of EnviroFlight LLC owned by Intrexon Corporation, increasing its ownership interest in EnviroFlight to 100 percent. EnviroFlight is a leading developer of proprietary technologies that enable the rearing of non-pathogenic black soldier fly (BSF) larvae in a scalable manner. The company opened the first commercial BSF facility in Maysville, Kentucky, in late 2018. Phase 1 of this production facility currently has the capacity to produce 900 tons of dried BSF larvae on an annual basis. Since late 2014, EnviroFlight has collaborated with Darling Ingredients to refine its scalable production processes for BSF larvae. The company continues to work with regulatory agencies to gain approval to feed these ingredients to food animals and pets in the United States. Darling acquired a 50 percent ownership interest in EnviroFlight in 2016.

Wyoming College adds Meat Processing Course Students at Central Wyoming College (CWC) in Riverton, Wyoming, will soon be able to learn about livestock slaughtering and meat processing thanks to a $777,800 grant from Wyoming Works, a statewide program aimed at helping adult students develop vocational skills and secure employment. The grant will allow the community college to hire a meat processing instructor and purchase a vehicle and equipment for a mobile slaughtering lab. CWC President Brad Tyndall said the goal is to help Fremont County get the most out of its livestock industry by boosting its capacity to process and sell meat locally. “I’m an economist. I think that higher education has an important role to play in economic development. So, we’re working very much with local ranchers, farmers, restaurants, and others to try to build local food capacity,” Tyndall said. Currently, the average rancher in Fremont County only keeps about one-third of a given animal’s potential revenue. “For us to capture two-thirds more of the animal, we need to do the food processing piece,” Tyndall commented. The local impact will be immediate since a new United States Department of Agriculture (USDA)-inspected meat slaughter and processing facility, Wyoming Genuine Meats, will be coming online this spring and a local state-inspected facility is considering changing to a USDA-inspected facility. The Wyoming Works grant will fund the meat processing program over the next four years. Students at Eastern Wyoming College and in the Northern Wyoming Community College District will also have access to the program through a consortium partnership. The college hopes to begin offering meat processing courses as early as summer 2020. R

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Biodiesel industry participants from around the United States (US) and the rest of the world descended on Tampa, Florida, for the National Biodiesel Conference in late January. Everyone had a decidedly strong spring in their step, given the reinstatement of the blender’s tax credit at the end of 2019; however, there was also a renewed resolve to achieve the industry’s regulatory policy objectives in order to avoid a repeat of the uncertainty of the last couple of years. National Biodiesel Board (NBB) Chief Executive Officer Donnell Rehagen highlighted the industry’s new vision—that biodiesel, renewable diesel, and renewable jet fuel will be recognized as mainstream low-carbon fuel options in on-road, off-road, and air transportation, electricity generation, and home heating applications well into the future. He predicted that use will exceed six billion gallons by 2030, eliminating over 35 million metric tons of carbon dioxide equivalent greenhouse gas (GHG) emissions annually, and with advancements in feedstock, use will reach 15 billion gallons by 2050. While proclaiming the industry’s new tag line—Better. Cleaner. Now!—Rehagen also acknowledged major challenges, primarily that the US Environmental Protection Agency is holding growth of renewable fuels down through

its Renewable Fuel Standard (RFS) renewable volume obligations and small refinery exemptions that stymie industry growth (see “Biofuels Bulletin” on page 18). Along with holding the US Department of Commerce accountable for biodiesel imports from Argentina and Indonesia, protecting and boosting the RFS volumes are NBB’s main policy objectives heading into this new decade. State and regional GHG policies were also highlighted at the conference, especially at a panel featuring new NBB Director of State Regulatory Affairs Floyd Vergara, formerly of the California Air Resources Board. Along with panelists Ian Thomson, president, Advanced Biofuels Canada; Michael Trunzo, director of government affairs at Shenker, Russo, and Clark LLP; and Kent Hartwig, senior manager of corporate affairs at Renewable Energy Goup, Vergara identified expanding climate initiatives in California, Oregon, Washington, Colorado, Minnesota, Massachusetts, New York, the Northeast, Midwest, mid-Atlantic states, and Canada. There was a new focus on carbon reduction and the benefits biomass-based diesel alternatives bring to the table. The 2020 vision at the conference appeared to be that there are rapidly expanding business opportunities for the industry that come with acknowledgement of climate change. R


Reinstatement of Tax Credit Huge Win for Biofuels

Biofuels Bulletin By Joe Gershen, Encore BioRenewables

December 20, 2019, was a historic day for the United States (US) biomass-based diesel industry. After two years of uncertainty and tremendous political maneuvering, Congress passed and President Donald Trump signed into law a new $1.4 trillion budget deal that included a five-year extension of the $1-per-gallon blender’s tax credit for biodiesel and renewable diesel. Since the credit had lapsed at the end of 2017, the extension covers 2018 and 2019 retroactively and 2020, 2021, and 2022 going forward. The 50-cent per gallon alternative fuel mixture excise tax credit was also made retroactive for 2018 and 2019, but only extended through the end of 2020. Since the blender’s tax credit first went into effect in 2005, it has regularly lapsed practically every other year and subsequently reinstated, one year retroactive and one year forward. This haphazard implementation has led to ongoing uncertainty in the biofuels investment and business community and created an overall far less effective incentive. With December’s unprecedented extension, there should be plenty of time for producers and investors to plan and execute projects that will help the industry grow. Also unprecedented was, during the last two years the credit had lapsed, the Trump administration’s Environmental Protection Agency (EPA) approved an unusually large amount of small refinery exemptions under the Renewable Fuel Standard (RFS), destroying billions of gallons of demand for American-made biodiesel. As pleased as the industry was with the blender’s tax credit extension, the industry was not as fortunate when EPA recently released its final rule for the 2020 renewable fuel and 2021 biomass-based diesel volumes under the RFS. EPA kept renewable volume obligations flat and only slightly increased advanced biofuel obligations, and then only for cellulosic, not biomass-based diesel (i.e., biodiesel and renewable diesel). While effectively staunching any market growth potential for biomass-based diesel, EPA simultaneously gave no assurances that future small refinery exemptions would be properly accounted for. It also finalized its contentious proposal to account for future small refinery exemptions using US Department of Energy (DOE) recommendations rather than a three-year average of actual gallons waived. Last October, Trump, EPA, and the US Department of Agriculture (USDA) jointly pledged to account for small refinery exemptions in the RFS annual rule and ensure that the biomass-based diesel volume is met. Shortly after, EPA proposed action that would significantly underestimate future exemptions and fall short of ensuring that renewable volume obligations are met, undercutting the initial pledge. The National Biodiesel Board (NBB) encouraged EPA to use the best possible estimate of future small refinery exemptions, specifically a three-year average of the total gallons EPA previously exempted; however, EPA’s proposal uses an average of past exemptions recommended by DOE rather than an average of actual volumes waived. Because EPA has ignored DOE’s recommendations in each of the past three years, that

methodology would only account for about half of the annual impact of recent small refinery exemptions. NBB also pointed out that EPA did not propose to address small refinery exemptions prior to 2020. Over four billion gallons of demand for biofuels has been lost due to retroactive small refinery exemptions for compliance years 2015 through 2018. This impact has been particularly significant for biomass-based diesel producers because the renewable identification numbers for these fuels can be used to satisfy multiple obligations under the RFS. Despite having the means to do so, EPA has not addressed this substantial loss of renewable fuel demand in its supplemental notice. In response, US Senator Chuck Grassley (R-IA) said, “Once again, EPA is playing games and not helping President Trump with farmers. I will hold EPA’s feet to the fire to make certain they abide by DOE’s recommendations and ensure integrity in the RFS. Whether that happens is up to Administrator [Andrew] Wheeler—and the president’s support among farmers is in his hands.”

Midwest Clean Fuels Policy Goals The Great Plains Institute (GPI) has published a report detailing how a Midwest regional clean fuels policy should be designed to benefit the area’s biofuel producers while also achieving greenhouse gas (GHG) emissions reductions. The 24-page white paper was the result of a 20-month process and involved collaboration between a wide range of producers, marketers, nonprofit and research organizations, scientists and engineers, and agriculture and industry stakeholders coming together for a Midwestern Clean Fuels Policy Initiative facilitated by GPI. “A comprehensive clean fuels policy is critical to solving the region’s most significant emissions challenge,” said Brendan Jordan, vice president of transportation and fuels at GPI. “This portfolio approach brings together a number of solutions from cleaner electricity to charge electric vehicles to bolstering the region’s rich agricultural resources while simultaneously lowering the carbon intensity of biofuels. Clean fuels represent a huge opportunity for the region to create an environmentally and economically sustainable future.” The report made several recommendations for what a well-designed clean fuels policy must include:

• It should first take a market-based approach and remain fuel and technology neutral in assessing carbon intensity, relying on a portfolio of clean fuels.

• It should have robust and consistent lifecycle assessments for all fuel types and consider regional factors in the Midwest.

• It should build on existing state policies rather than replace them.

• It should reinforce and complement existing efforts by the agricultural sector to adopt practices that improve soil health and water quality and capture carbon.

• It should recognize state autonomy in policymaking, but seek to create a uniform regional approach where possible.

The report was supported by modeling for achieving average carbon intensity reductions for all transportation fuels of either 10, 15, or 20 percent by 2030 and finds that all those scenarios are achievable mostly with clean fuel production resources available in the region.

Monies Offered to Support Advanced Biofuels For fiscal years 2019 and 2020, USDA is providing up to $7 million to eligible advanced biofuel producers for the production of advanced biofuels manufactured from renewable biomass (excluding corn kernel starch) in a biorefinery located in a US state. The agency’s Rural Business Cooperative Service is accepting applications from eligible advanced biofuel producers under the Bioenergy Program for Advanced Biofuels to support and ensure an expanding production of advanced biofuels. Applications must be submitted to the USDA Rural Development State Officer for the state where the producer is located by February 18, 2020.

New Bus Fleets to Run on Biodiesel The US Federal Transit Administration awarded the City of Longview, Washington, $1.56 million to purchase new diesel buses that will run on biodiesel blends to replace older vehicles that have exceeded their useful life. The new buses will be operated by RiverCities Transit and will improve access, mobility, and transit service for area residents. In Louisiana, $7.24 million was awarded to the New Orleans Regional Transit Authority (RTA) to purchase diesel buses expected to run on biodiesel blends to replace those purchased after Hurricane Katrina destroyed the authority’s fleet in 2005. Those buses have also reached the end of their life, and new ones will allow RTA to enhance safety, improve service, and reduce vehicle breakdowns.

New York Winters no Problem for Biodiesel New York City’s municipal fleet, the largest in the country, currently requires all city vehicles and equipment to use a 20 percent blend of biodiesel with petroleum diesel (B20) from April through November, and five percent biodiesel from December through March. More than 150 types of vehicles and equipment—garbage trucks, mowers, beach-cleaning equipment, tractors, light towers, and generators—used more than 400,000 gallons of biodiesel during the winters of 2017 and 2018 without any cold weather issues. Because the city has experienced virtually no fuel-related problems in its 11,000 vehicles according to Keith Kerman, deputy commissioner for the Department of Citywide Administrative Services, it has begun using B20 in some of its equipment year-round.

REG, Phillips Pull Plug on Washington Facility Phillips 66 and Renewable Energy Group Inc. (REG) are discontinuing their joint effort to construct a large-scale renewable diesel plant in Ferndale, Washington, due to permitting delays and uncertainties. Originally announced in fall 2018, the 250-million-gallon-per-year project would have resulted in the largest renewable diesel refinery on the West Coast. “While we believe the Ferndale Refinery is a strategic fit for this renewable diesel project, permitting uncertainties were leading to delays and higher costs,” said Robert Herman, Phillips 66 executive vice president of refining. “Phillips 66 continues to progress its portfolio of renewable diesel projects and evaluate new opportunities to provide consumers with renewable fuels that comply with low-carbon fuel standards.” Both companies expressed appreciation to Washington state, Whatcom County, local officials, and other stakeholders for their advice and support during the process.

Renewable Diesel Coming to New Mexico HollyFrontier plans to construct a new renewable diesel unit at its Artesia, New Mexico, refinery that will have a production capacity of approximately 125 million gallons a year. This investment will allow the company to meet the demand for low-carbon fuels while covering the cost of its annual renewable identification number obligations under the RFS. The facility, along with corresponding rail infrastructure and storage tanks, is estimated to cost $350 million and is expected to be completed in the first quarter of 2022. This construction comes as no surprise considering New Mexico’s move toward decarbonization and climate-friendly laws, including passage in 2019 of aggressive legislation mandating that the state’s publicly regulated utilities obtain their electricity from carbon-free sources, like solar and wind, by 2045. R

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New Year, New ChallengesFrom the Association By Nancy Foster, President

North American Renderers Association

As this is being written, the new decade is a few weeks old and already major events and issues affecting the rendering world are either having an impact, or will soon. A Phase I trade agreement between the United States (US) and China has been reached, with $40 to $50 billion in promised purchases of US agricultural products. Hopefully these new exports to China will occur as expected. The US Congress also passed the long-awaited US-Mexico-Canada Agreement (USMCA) as Mexico makes progress toward opening its market for bovine meat and bone meal. The biodiesel industry scored a victory (and breathed a deep sigh of relief) when Capitol Hill finally extended tax credits at the last minute before the Christmas and New Year holidays. African swine fever continues to spread in some parts of the world while the US and Canadian governments and pork industries work hard to prevent it from infecting their markets. Entering 2020, the outlook for US livestock and poultry production and demand is fairly robust, market trends toward all-plant diets for people and animals (including pets) continues, and cell-cultured meat is making a splash in quick-serve restaurants and grocery stores. In fact, McDonald’s demand for the meat-replacement is so strong that a primary supplier was unable to provide a sufficient supply of product and had to decline the order. Yes, the “times they are a-changin’” (with thanks to musician Bob Dylan). In fact, sometimes the only constant is change. Although the North American Renderers Association (NARA) adopted a new name late last year, its commitment remains the same to improve the business of rendering and open new opportunities for its members. NARA remains an effective advocate for rendering due to its robust membership despite industry consolidation, representing over 95 percent of rendered production in the US and Canada. The outstanding leadership caliber of NARA’s officers, Board of Directors, and working committees also contributes a strong foundation for the association. Elected last fall for two-year terms were Chairman Doyle Leefers of National Beef Packing Company, First Vice-chairman Mike Smith of Valley Proteins Inc., and Second Vice-chairman Jim Long of Rothsay, a division of Darling Ingredients Inc. This year will be challenging, but hopefully rewarding. NARA is ready with its programs and staff in scientific services, international market development, political advocacy, communications, membership, and meetings. These programs will implement the updated strategic plan approved by the board of directors last year, affirming their goal for the global community to recognize and trust the unique social, environmental, and economic value that NARA and its members deliver. This goal recognizes that renderers deliver sustainable solutions to food, feed, fuel, oleochemical, and other customers. Consequently, promoting the sustainability of rendering is a top NARA priority. A major rebrand of its website was recently completed, creating the go-to place for sustainability

and current rendering information. NARA is also completing a major economic report with new information on the industry’s social, environmental, and economic contributions for customers and consumers. A second economic report about rendering and pet food is also expected to be finished soon. NARA’s strategic mission is “to advocate for a sustainable food chain, public health, and the environment through the production and marketing of our members’ products and services.” To accomplish this, NARA:

• Promotes effective public policy, regulation, and technology

• Encourages responsible business practices • Supports free movement of its members’ products

in domestic and international markets• Improves stakeholder awareness and understanding

of the value of these products and services Under these objectives, NARA programs, resources, and daily work are driven by three specific strategic intentions:

1. Image and value—Enhance the image and value members deliver through innovative, safe, and sustainable products and services that create the highest value from raw materials. This involves product safety, technology, and rendering as the best use for animal by-products and used cooking oil.

2. People and community—Create recognition and awareness of the value members deliver to their communities, both local and global, as well as business customers, suppliers, and current and prospective association members and future leadership.

3. Domestic and international markets—Maintain and expand market access for members’ products and services. This includes securing sufficient resources, closely monitoring the complex and volatile global market for critical issues, and preparing the association and its members to manage crises resulting from high impact domestic and international events.

Below is a preview of the goals, challenges, and activities NARA is anticipating in 2020.

International Market Development In today’s shifting and complex world of international trade, it is more important than ever to aggressively pursue overseas market opportunities for rendered products. NARA’s overseas offices in Hong Kong, China, and Mexico City, Mexico, carry out NARA’s work with a team of international consultants to reduce and eliminate foreign trade barriers and open new markets overseas.

China With a US-China Phase I trade agreement now signed, there is opportunity for trade to resume at a healthy pace Continued on page 22

(though US competitors are eager to supply China’s needs). Expanding trade to China for rendered products through implementation of the Phase 1 and possible Phase 2 trade agreements is a high NARA priority this year.

Expanding Exports After receiving over $1.2 million from the US Department of Agriculture (USDA) last year under the Agricultural Trade Promotion Program, NARA will increase promotion of rendered products this year. This includes work in Mexico where the market is expected to open for bovine meat and bone meal during the first quarter of 2020. Funds will also be used to explore and find new markets for rendered products in Africa. For 2020, NARA was awarded an additional $1.7 million by USDA under the Market Access Program and the Foreign Market Development program for market expansion activities. These funds will be combined with NARA member dues to promote rendered proteins, fats, and oils to overseas customers; reduce foreign trade barriers; and gain access to new markets abroad.

Trade Priorities Additional goals for NARA’s international market development program this year are:

• Gaining market access for non-ruminant proteins to South Korea and Japan

• Maintaining exports of used cooking oil exports to the European Union though market maintenance and trade servicing activities

• Continuing promotion in the aquaculture sector through technical services and support for the Global Aquaculture Alliance

• Collaborating with other rendering industries around the world to promote the free trade of rendered products

• Bringing trade data online for NARA members on the association’s updated website

• Expanding the Harmonized Commodity Description and Coding System of the World Customs Organization to include specie-specific codes for rendered meals

This year, NARA will continue its strategic partnership in the U.S. Sustainability Alliance, whose agricultural members jointly promote the sustainability of US farm commodities and products to American customers and foreign markets. NARA staff will again represent renderers on two federal trade advisory committees at the invitation of the Secretary of Agriculture to provide recommendations to President Donald Trump’s administration on pending trade agreements and rendering exports.

Scientific Services Rendering Sustainability and Economic Data Project NARA members invested $180,000 last year in an economic data collection project guided by the association’s Sustainability Committee to understand all major sectors of the industry. Included are major markets for rendered products and measuring industry sustainability metrics in the United States and Canada. A second economic data project

is underway—sponsored jointly by NARA, the American Feed Industry Association, and the Pet Food Institute—to understand the changing pet food market and the rendering industry’s role. NARA members will be able to use this renewed information from both reports for customer and public relations to make a compelling case about the value of rendering and the use of rendered products to improve sustainability. As part of its rebranding of the industry, the association will transform this economic data into strategic sustainability messages for use across communications platforms, including infographics, social media, and presentations tailored to impact audiences. NARA will also educate Washington, DC, policy makers with this information. Quality and Safety Programs More than 90 percent of rendered products in the United States and Canada are produced under principles in the NARA Rendering Code of Practice. This year, the Animal Protein Producers Industry (APPI) Committee will examine testing and education programs to identify new offerings that members need and would value. A new testing program will be designed for environmental monitoring while future education programs will go beyond Food Safety and Modernization Act (FSMA) compliance, expanding into areas such as foreign matter control and improved oxidation control and measurement. APPI will again offer certification for preventive control qualified individuals (identified under FSMA) in its comprehensive Rendering Code of Practice training to ensure full understanding of FSMA regulations and standards for quality rendering. Participation is designed to provide important tools for compliance with this federal law by NARA members.

Regulatory Issues NARA will vigilantly monitor and work closely with federal agency officials to help ensure informed decisions and encourage positive results for renderers. NARA staff plans to dedicate considerable effort to educate regulators on the production and safety of rendered products. This is an ongoing effort as additional issues arise and government staff changes. NARA will also continue to monitor proposals from the American Association of Feed Control Officials that could lead to redefined regulatory changes for rendered products. FSMA represented a landmark change in US regulation of animal feed and ingredients when passed by Congress at the dawn of the last decade. As the years since have progressed, the rendering industry has proven to be among the most prepared for the increased level of scrutiny required under the law. For renderers, FSMA implementation and stepped-up Food and Drug Administration (FDA) inspections have gone smoothly for the most part. As FDA employs new people to expand oversight and replace retirees, FSMA implementation will bear close watching to ensure renderers can operate responsibly and efficiently. This will remain a NARA priority and staff will assist members with any difficulties when dealing with regulators.


Association Continued from page 21

Collaboration will be ongoing this year between NARA and USDA on rendering’s role during a possible foreign animal disease outbreak. USDA recently conducted a poll of renderers about animal disposal under a variety of scenarios. NARA remains vigilant in monitoring the global progress of African swine fever.

Research for Regulatory Compliance, Solving Industry Problems NARA’s partnership with the Fats and Proteins Research Foundation (FPRF) yields synergies for problem solving, regulatory compliance, and improving relationships with important customers. FPRF’s foresight in designing and funding the Pet Food Alliance has created a space for renderers, pet food companies, suppliers, and researchers to identify shared solutions to the challenges of continued increased expectations for food safety and quality in pet food ingredients. This year, the alliance will meet in conjunction with the Pet Food Forum in Kansas City, Missouri, and showcase the progress of the rendering industry as producers of safe and quality ingredients.

Political Advocacy and Legislative Priorities Government decisions affect the business of rendering in countless ways, as renderers know well. International trade, environment, biofuel, transportation, food waste, and farm bills are just a few of the policies influencing industry operations. This year, NARA will again closely monitor and advocate for the best interests of the rendering industry to Congress, the Trump administration, allied groups, and other influencers. NARA’s political consulting firm, The Russell Group, is working with staff to advise and represent the industry. A number of NARA’s legislative priorities have met with success, or are about to. After several years of work, Congress extended the $1-per-gallon blender’s tax credit for biodiesel and renewable diesel through 2022 and made it retroactive for 2018 and 2019. The 50-cent per gallon alternative fuel mixture excise tax credit was also reinstated retroactively for 2018 and 2019, but was extended only through the end of 2020. On trade, the House of Representatives passed the USMCA agreement in December and the Senate did the same in January. NARA strongly supports the USMCA since it opens the door for concluding talks for Mexican imports of US bovine meat and bone meal.

Climate Change Climate change legislation will be a major headline issue in this election year. The House will act on a bill in 2020, according to House Speaker Nancy Pelosi, with its top goal to achieve carbon neutrality by 2050. This means net-zero greenhouse gas (GHG) emissions by no later than that date. Rendering will need to demonstrate how the industry fits into that goal in order to be treated fairly and equitably compared to other forms of disposal. The encouraging news is that the House Agriculture Committee will play a significant role in writing the agriculture-related provisions. The Democratic-controlled House will most likely unveil its

climate change bill by spring and it will be a rallying point for Democrats on climate change during this fall’s presidential and congressional elections. To develop climate change legislation, the House Select Committee on the Climate Crisis asked for public input on climate-protective practices and operations last fall. In December, NARA submitted comments on rendering’s benefits and contribution to American agriculture, carbon storage and reuse, and net reduction of GHG emissions. The association’s goal is for the committee to understand rendering’s role and sustainability so the bill does not incentivize other disposal methods over rendering or otherwise harm the industry. Any legislative effort must adequately recognize the early leaders in GHG reduction to avoid unintended consequences in the future. NARA urged recognition of rendering’s important role in sustainability and reducing carbon emissions as legislation is developed. The committee’s recommendations are due in March.

Communications and Rendering Sustainability In the coming year, NARA will be celebrating and building upon communications goals reached in 2019. The association’s website was completely redesigned and reformatted with a full rebrand around sustainability and the association’s name change from the National Renderers Association, or NRA, to the more inclusive and unique North American Renderers Association, or NARA.

Rebranding Around Sustainability—Phase II NARA’s “Phase II” rebrand will expand the website to include exclusive content for members, videos of presentations, and downloadable content (i.e., PowerPoint presentations). The association will also launch a monthly blog and start a search engine optimization program this year to expand the reach of the website and social media. New infographics and social media content are also planned.

Crisis Communications Creation of a master crisis communications plan for constant media response preparedness is a priority for high impact and potential disruptive market events or media coverage, such as during the 1990s bovine spongiform encephalopathy outbreak in the United Kingdom. This plan is important for the association to further protect and defend the rendering industry. In 2020, NARA’s communications projects will build on this new, sustainability-focused brand while continuing to put its members first with important service and support.

Meetings and Membership One of the benefits of being a NARA member is the opportunity to attend and benefit from meetings during the year. Members learn about industry developments and ensure they gain the latest business intelligence. They also make fresh connections and network with colleagues. NARA meetings are a hub of industry activity since the association represents an overwhelming majority of industry businesses in the United States and Canada.

Continued on page 25

WRO Leaders Bring Experience to the TableInternational Report

WRO officers are (from left) Lucas Cypriano, first vice president; Martin Alm, president; and Doyle Leefers, second vice president.

At the European Fat Processors and Renderers Association (EFPRA) Congress in La Baule, France, in June 2019, the World Renderers Organization (WRO) elected new officers to represent the rendering industry on a global platform. Chosen were Dr. Martin Alm, Europe, president; Lucas Cypriano, Brazil, first vice president after Bruce Roundtree from New Zealand retired; and Doyle Leefers, United States (US), second vice president. Who are these officers? Below is an introduction of those who will represent the global rendering sector for the next two years. Alm studied chemistry at the Technical University of Braunschweig, Germany. He began his career in 1998 at SARIA Bio-Industries, one of the leading rendering companies in Europe with factories in 12 countries. While there, Alm was responsible for research and development then expanded to regulatory affairs representing SARIA and Germany in various national and international interest groups and research committees. Since 2009, Alm has been director of his own research and consulting firm and technical director of EFPRA. Today, he is also a consultant member of the board of the German rendering association, member of the Scientific Advisory Panel and president of WRO, and a research committee member of US-based Fats and Proteins Research Foundation. Cypriano is technical manager of the Associacao Brasileira de Reciclagem Anima (ABRA), the Brazilian rendering association, a position he has held since 2011. His responsibilities include evaluating federal laws related to the Brazilian rendering market and providing technical support for all ABRA’s activities with member companies, their products, and their clients, including audits of operations. Cypriano also created the Brazilian hygienic rendering program, and in early 2019 became technical manager of the Latin American council of the rendering industry, known as CLIRSA. He has served as ABRA’s delegate to WRO since 2013 and as a member of WRO’s Scientific Advisory Panel since 2015. Before joining ABRA, Cypriano worked at Eurotec Nutrition, a feed additive company, on phytogenic feed additives, preservatives for feedstuffs, and animal meals and fats, reaching the position of national sales manager. Before that, he served as manager of a premix factory and as a poultry and swine nutritionist in the premix companies Supre Mais and Guyomarc’h. Cypriano graduated from São Paulo State University in 1998 with a degree in animal science. Leefers graduated from the University of Nebraska-Lincoln with a bachelor’s degree in animal science in 1998. He started his career with Cargill Meat Solutions’ sales team for boxed pork and beef. Moving multiple times within Cargill, he found himself at the corporate office as premium product manager for company-owned brands. The opportunity led to buying live cattle to supply the harvesting facilities in the Midwest United States. In May 2006, Leefers joined National Beef Packing Co. in sales where he managed a regional domestic sales team. In 2011, he began leading the rendering products and variety meats division where he currently oversees the domestic and export sales for rendering, variety meats, pet food, and

pharmaceuticals. As a member of the National Renderers Association, now the North American Renderers Association (NARA), while at National Beef, Leefers became active in international marketing, sustainability, and other committees. When asked to be chairman of the association, he did not hesitate to be the first packer-renderer to lead NARA, beginning his two-year term as chairman in October 2019. Married to his wife Kristen for 15 years, they have two sons, Lucas (13) and Bryce (10), who keep them busy with activities in sports and showing livestock.

WRO Active in Year Ahead WRO has many activities lined up in 2020, including following up its engagement in the Livestock Environmental Assessment and Performance (LEAP) partnership with the Food and Agriculture Organization (FAO). Rendered products are some of the most sustainable feed ingredients worldwide so WRO´s participation in LEAP is important to promote this mostly unknown fact and strengthen its partnership with FAO and other key livestock partners. Members have started to calculate their environmental footprint according to LEAP rules. These results are expected to demonstrate the difference to plant-based oils and proteins. Another important meeting is the World Organisation for Animal Health general session this May in Paris, France. African swine fever is putting pressure on large swine producing countries in Asia. In Europe, the virus is moving from the east nearer to the large pork producers in Germany, France, and other countries. Another threat might be avian influenza with wild (migrating) birds as the key vector of infection. This is hard to control. Other diseases that use insects as vectors are even more difficult to keep away from domestic animals. Nevertheless, renderers can play an important role because a safe rendering process is a key step in animal disease prevention. WRO will also meet at the following rendering conferences this year: EFPRA Congress June 3–6, 2020, in Vilamoura, Portugal; and NARA convention November 3–6, 2020, Naples, Florida. Renderers worldwide are welcome to attend. R


Dealing with SpillsTech Topics By Ethan Ware and Ryan Trail, Williams Mullen

Every plant environmental professional dreads the call, “We’ve had a spill.” That single event places companies in the middle of emergency response and determining if a report for state and federal regulators is required. If notification is made, there will undoubtedly be a parade of Environmental Protection Agency (EPA) or state officials combing the plant for any potential violations. A closer look at EPA policies and guidance on spill reporting may provide relief. The release of a hazardous substance into the environ-ment or animal fats into a body of water in excess of an assigned reportable quantity may trigger notification to the National Response Center (NRC) under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and Clean Water Act (CWA). Certain spills into a secondary containment system, however, may not be considered a release to the environment, even if the containment system is made of earthen materials. Federal reporting requirements are basic training for an environmental health and safety professional. CERCLA requires immediate reporting of an actual release of a hazardous substance listed by EPA into the environment, as such, in excess of its assigned reportable quantity within a 24-hour period (CERCLA Section 103(a), 42 United States (US) Code Annotated Section 9603(a)). The CWA requires notification to NRC whenever a release of grease, fats, or oils may reach a waters of the United States (including shorelines and wetlands) in an amount sufficient to cause a sheen to form (40 Code of Federal Regulations (CFR) Section 110.6). Rendering facilities commonly store fats and oils and hazardous chemicals outside in aboveground storage tanks. Under the Spill Prevention, Control, and Countermeasure (SPCC) rule, 40 CFR 110-112, most facilities ensure chemical storage areas are equipped with proper secondary containment measures to prevent releases of hazardous substances and oils from entering the environment or nearby streams. The secondary containment measures almost always consist of sealed concrete structures with impermeable liners on flooring and curbing. It is not uncommon at older facilities for aboveground tanks to be located within earthen containment areas. It is certainly more economical and easier to construct earthen secondary containment that sufficiently hold releases and spills pending removal. Earthen systems often consist of compacted soils or clay-lined bowls beneath the tanks and earthen berms built around the tanks for purposes of containing releases. While spills and releases throughout a plant site typically require notification under CERCLA and CWA, a release to secondary containment structures may be exempt from reporting requirements. The pivotal case here is Fertilizer Institute v. EPA (935 F.2d 1303, D.C. Circuit, 1991). In this case, the US Court of Appeals for the District of Columbia Circuit refused to uphold a proposed EPA rule that would require reporting of a release of a reportable quantity of radionuclides to an unenclosed secondary containment structure. The

court concluded a spill to secondary containment may be a “threatened” release, but where the release does not otherwise reach the environment, it is not an “actual” release requiring CERCLA reporting. Under both CERCLA and CWA, notification is required “immediately” when a person in charge at a facility gains knowledge of a qualifying release of a hazardous substance or grease, oils, or fats. “Knowledge” is interpreted by EPA to include actual knowledge or constructive knowledge. “Constructive knowledge” is knowledge or level of awareness, which would lead the reasonable person to investigate further to gain knowledge of actual facts. “Immediate” is interpreted by EPA and the courts to mean within 15 minutes of the person in charge gaining “knowledge” that a reportable quantity of a hazardous substance was released to the environment. Most importantly, to be a reportable release, the hazardous substance or grease, oils, and fats must have been released “to the environment” or waterbody. CERLCA defines “environment” to include “[t]he navigable waters, the waters of the contiguous zone, and the ocean waters . . . of the United States . . . and any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air . . .” At first glance, an earthen containment area seems to qualify as “land surface,” triggering the CERLCA reporting obligation in the event of a release. EPA guidance indicates the same exception to reporting recognized by the court in Fertilizer Institute applies to releases inside an earthen secondary containment system, even if the secondary containment system is not made of impermeable surfaces (CERCLA Section 103 and Emergency Planning and Community Right-to-Know Act Section 304 Release Notification Requirements UPDATE, Department of Energy/Office of Environmental Guidance, January 1995; update to Guidance for Federal Facilities on Release Notification Requirements under CERCLA and SARA Title III, November 1990) (the “release guidance”). The release guidance suggests where an earthen containment structure is designed, constructed, and maintained to contain a hazardous substance, and in fact does contain the substance when released, the release is not to the environment. EPA goes on to list specific types of secondary containment devices not considered “the environment,” including concrete pads designed to catch any runoff, open tank containment units, clay-lined or synthetically lined disposal facilities, and “clay ditch[es] and dike[s]” surrounding tanks. The release guidance also states unequivocally “some land surfaces may actually be used as containment devices” and “discharges into containment devices are not releases into the environment.” In practice, EPA considers facts such as the depth to clay liner, volume of constructed soil, and level of compaction when determining whether an earthen containment structure is “the environment.” The release guidance concludes by stating, “if a structure is properly designed, constructed, and maintained to contain a hazardous substance, then a release into or onto

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Mark Your CalendarMarchPacific Coast Renderers Association Annual ConventionMarch 6–7, Carmel Valley, CA • Email Marty Covert at [email protected]

National Grain and Feed Association 124th Annual ConventionMarch 8–10, Austin, TX • www.ngfa.org

15th Annual World Bio MarketsMarch 23–25, Amsterdam, the Netherlands • worldbiomarkets.com

AprilNorth American Renderers Association Spring MeetingApril 21–23, Chicago, IL • Email Marty Covert at [email protected]

Pet Food ForumApril 27–29, Kansas City, MO • www.petfoodforumevents.com

Pet Food Alliance Spring MeetingApril 29–30, Kansas City, MO • fprfalliance.agsci.colostate.edu

MayAnimal Agriculture Alliance Stakeholders SummitMay 7–8, Alexandria, VA • animalagalliance.org

FENEGRA 2020 – Brazilian Rendering CongressMay 13–14, Campinas, Sao Paulo, Brazil • www.fenagra.com.br

JuneEuropean Fat Processors and Renderers Association 2020 Congress June 3–6, Vilamoura, Portugal • efpra2020algarve.com

North American Renderers Association Central Region Meeting June 10–12, Minneapolis, MN • Email Tom Beseman at [email protected]

that structure is not a release into the environment and is not reportable under CERCLA.” This EPA guidance may help sort out when and when not to report spills at a rendering facility, by-products transfer station, or truck terminal. Some releases inside earthen secondary containment technology may not need to be reported to EPA or NRC. To be certain operations can take advantage of the EPA guidance, facilities should evaluate the integrity of all secondary containment structures, earthen or otherwise, to ensure they are prepared to properly contain any release of hazardous substances and prevent the release from entering the environment until the release can be removed. Facilities should also carefully consider internal protocols for release reporting, so only required reports are made. R

NARA’s 2020 meetings include its spring board and committee meetings April 21–23 in Chicago, Illinois; the Rendering Code of Practice training June 2–4 in Minneapolis, Minnesota; and its annual convention November 2–6 in Naples, Florida. NARA renderer members are invited to the annual Washington, DC, Fly-in June 15–17 for congressional meetings and briefings with senior administration officials and policy influencers.

Benefits of Membership Membership is NARA is open to renderers and their business partners who supply goods and services or purchase (or broker) rendered products. In addition to benefiting from NARA’s programs described above, members enjoy access to expert advice in immediate crisis situations that can be invaluable when a company’s reputation and products are at stake. I encourage you to consider joining NARA if you are not a member already. NARA is the only rendering organization in the United States and Canada dedicated to promoting and defending the rendering community. For more information on joining, please contact Heather Davis, member relations coordinator, at [email protected] or 703-683-0155. Here’s to health, prosperity, and happiness in 2020! R

Association Continued from page 22

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Whistle While You Work

Labor and the Law By Mark A. Lies II and Adam R. YoungSeyfarth Shaw

Editor’s note—Mark A. Lies II is an attorney and partner in the Workplace Safety and Environmental Group in the Chicago, Illinois, office of Seyfarth Shaw LLP. He focuses his practice in the areas of product liability, occupational safety and health, workplace violence, construction litigation, and related employment litigation. Adam R. Young is an associate attorney in the Workplace Safety and Environmental Group of Seyfarth Shaw who focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation. Individual circumstances may limit or modify this information.

From 2012 to 2018, the number of whistblower complaints filed with the federal Occupational Safety and Health Adminstration (OSHA) increased by 74 percent. In 2019, as news coverage of anonymous government whistleblowers saturated the 24-hour news cycle, OSHA saw more safety-related whistleblower complaints filed against employers across the country. By the end of last year, OSHA investigated employee complaints brought under 23 separate statutes with about 62 percent of those claims filed under Section 11(c) of the Occupational Safety and Health Act itself. Other whistleblower statutes address industries such as aviation, trucking, heavy euqipment, railroads, pipelines, and barges. OSHA operates a dual structure with (a) compliance safety and health officers investigating complaints and issuing safety and health citations, and (b) employment investigators receiving and investigating a growing number of whistleblower statutes

Elements of Prima Facie Case of Retaliation The federal whistleblower statutes protect employees who have filed complaints with federal agencies, participated in federal investigations, or even filed internal safety complaints. These employees then allege that their employer issued them an adverse or negative employment action, such as a discharge or suspension, on account of the alleged protected activity. Accordingly, a prima facie case of employment retaliation generally requires (1) protected activity, (2) an adverse employment action, and (3) a causal connection between the protected activity and the retaliation.

Investigatory Process of an OSHA 11(c) Complaint Employers who receive a whistleblower complaint will face a potentially disruptive and years-long investigation and enforcement process, regardless of the merits of the complaint. After receiving a complaint from an employee, the OSHA retaliation investigator will first send a letter to the employer outlining that a complaint has been filed and providing a written summary of the online complaint or written transcription of a telephonic complaint. The letter will request a response to be filed within 20 days of the date of the letter; however, the agency is almost always amendable to reasonable extensions of time. Employers should strive to be truthful, complete, and persuasive in their response to

OSHA. Employers may need to engage outside counsel and take more than 20 days to do a competent investigation and draft a persuasive response. After receiving the employer’s response letter, OSHA will forward it to the complainant and ask for a response. Many complainants do not respond to the follow-up inquiry and the complaint will be summarily dismissed. In other cases, OSHA investigators read the response letter and convince complainants to voluntarily dismiss meritless complaints. Because of the backlog and limited resources to investigate and try retaliation cases, OSHA will make an effort to negotiate settlements with complainants. If the case proceeds, the agency will conduct an investigation, request additional documents, and interview witnesses. Due to a large backlog in retaliation complaints, employers may not hear from OSHA for 18 months or longer after filing their response letter. More than 95 percent of complaints are dismissed. There is no private cause of action for employees to bring a claim under OSHA Section 11(c); OSHA’s attorney, the Solicitor of Labor, would bring any litigation in United States District Court.

OSHA’s Desk Aid of Section 11(c) In 2019, OSHA released an updated Investigator’s Desk Aid to the Occupational Safety and Health Act Whistleblower Protection Provision intended as the agency’s “summary of the scope of coverage and protected activity and procedures for handling investigations under Section 11(c) of the Occupational Safety and Health Act (OSH Act).” The desk aid is notable, as it reflects OSHA’s views on numerous hot-button issues surrounding whistleblower complaints. The desk aid provides a checklist for retaliation investi-gators and concentrates on the various forms of protected activity under Section 11(c):

A. Filing occupational safety or health complaints with OSHA or other agencies

B. Filing occupational safety or health complaints with management

C. Instituting or causing to be instituted any proceeding under or related to the OSH Act

D. Providing testimony relating to occupational safety or health

E. Exercising any right afforded by the OSH ActF. Refusing to perform a dangerous assigned task under

certain circumstancesG. Complying with and obtaining benefits of OSHA

standards and regulationsH. Participating in an OSHA inspectionI. Requesting information from OSHAJ. Refusing to inform an employer of the identity of the

person who complained to or contacted OSHA The broad, catch-all form of protected activity is “Exercising any right afforded by the OSH Act.” OSHA understands this to include reporting an injury, requesting a safety data sheet, and communicating about safety and health issues included as

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part of the employee’s duties. Without citation to a recognized statutory section, OSHA takes the position that communication about health and safety matters with “co-workers” is protected activity. This means that an employee could file an OSHA claim premised only on complaints made to co-workers, of which no supervisor or manager was made aware. This is not a right “afforded by the OSH Act,” and is contrary to the requirement of employer knowledge necessary for alleged intentional retaliation.

Refusal to Perform OSHA’s desk aid importantly addresses whistleblower claims founded on an employer’s action against an employee who refuses to perform his job on account of an alleged safety concern. An employee’s right to refuse to perform is limited and specific and must be founded on an objectively reasonable belief that the action the employee refuses to perform represents a safety hazard. The desk aid further articulates necessary elements laid out in 29 Code of Federal Regulations Section 1977.12(b)(2): “An employee has the right to refuse to perform an assigned task if he or she:

1. Has a reasonable apprehension of death or serious injury, and

2. Refuses in good faith, and 3. Has no reasonable alternative,

and4. Has insufficient time to elimi-

nate the condition through regular statutory enforcement channels (i.e., contacting OSHA or a state OSHA), and

5. Where possible, sought from his or her employer, and was unable to obtain, a correction of the dangerous condition

All elements listed above must be satisfied.” In practice, very few employees who refuse to perform satisfy each of these elements and do not have the basis for a whistleblower claim.

Right to File Complaint or Participate The agency rightly includes in its list of protected activities the employee’s right to file complaints and to participate in OSHA inspections, typically through on-site interviews. Employees have a right to file complaints and, for this reason, company management

should not investigate who filed the complaint that led to the inspection and should not make comments that give an appearance of impropriety with regard to an OSHA complainant. In preparation for an interview during an OSHA inspection, employees should be reminded during preparation of their right to communicate with OSHA and that no negative outcome will occur as a result of their interview. Much like other employment claims, OSHA retaliation claims are normally

brought by employees and former employees disgruntled by an adverse employment action. To minimize OSHA retaliation liability, as with all other employment claims, employers must address and confront an employee’s grounds to allege pretexts. To do so, employers should document the basis for a discipline or discharge decision. If faced with retaliation complaints, employers should consider promptly contacting counsel to prepare a response to properly assert their defenses. R

28 February 2020 Render www.rendermagazine.com

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