EPA Releases Draft of National Strategy to Prevent Plastic Pollution

Update: The EPA has announced a 45-day extension to the original deadline to comment. Therefore, the EPA is now accepting public comments until July 31, 2023.

The U.S. Environmental Protection Agency (EPA) Office of Resource Conservation and Recovery (ORCR) released the draft National Strategy to Prevent Plastic Pollution (EPA 530-R-23-006) (Draft Strategy) on April 21, 2023. The release of the Draft Strategy accompanied the announcement of a White House Interagency Policy Committee on Plastic Pollution and Circular Economy.¹ The new committee will "coordinate federal efforts related to plastic pollution and related environmental justice and equity initiatives," according to a White House fact sheet.

The Draft Strategy

The Draft Strategy features three key objectives to address the production, consumption and end-of-life stages of plastic products (Objectives):

• Objective A: Reduce pollution during plastic production
• Objective B: Improve post-use materials management
• Objective C: Prevent trash and micro- and nano-plastics from entering waterways and remove escaped trash from the environment

Within these Objectives, the Draft Strategy identifies voluntary actions that can be implemented in the U.S. with the goal of eliminating the release of plastic waste from land-based sources into the environment by 2040. According to the EPA, the proposed actions under each objective "support the [nation's] shift to a circular approach that is restorative or regenerative by design, enables resources to maintain their highest value for as long as possible, and aims to eliminate waste in the management of plastic products."

The Draft Strategy is not limited to the EPA's authority or jurisdiction, and could be implemented in coordination with other entities such as municipal governments, non-governmental organizations (NGOs) and the private sector. Examples of actions promoted in the Draft Strategy include:

• improve the design of plastic products to provide more reuse and refill opportunities
• increase solid waste collection and ensure that solid waste management does not adversely impact communities
• produce fewer single-use, unrecyclable and frequently littered plastic products, and reduce pollution from plastic production facilities
• increase public awareness of ways to reduce plastic and other trash in waterways

Next Steps

EPA is seeking public comment from a broad array of stakeholders engaged in post-consumer materials management and infrastructure. Among other topics, the EPA solicits comment on 1) key metrics and indicators that the agency should use to measure progress in reducing plastic and 2) other waste in waterways and oceans and whether the agency should expand the scope of the strategy to include sea-based sources. Comments on the Draft Strategy are due by June 16, 2023.

In parallel, the FTC is evaluating potential updates to its Guides for the Use of Environmental Marketing Claims (Green Guides) (see Holland & Knight's previous alert, "FTC Seeks Input on Potential Updates to Its Green Guides," Dec. 19, 2022). While the comment period has closed after receiving 1,065 comments, the FTC will host a workshop on May 23, 2023, in Washington D.C., to examine "recyclable" advertising claims as part of the agency review. The EPA has confirmed its intent to post public comments on the FTC's request for public comments on potential updates to the Green Guides. The EPA says it supports strengthening requirements for environmental marketing claims and combating greenwashing, including requiring higher thresholds for plastic products and marketing packaging as recyclable.

Summary of Proposed Actions and Strategic Objectives

The remainder of this alert provides a summary of the key strategic options and proposed actions outlined in the Draft Strategy.

According to the EPA, the Draft Strategy supports the EPA's attempt to shift to a circular approach for plastics management in the U.S. In order to do so, the EPA cites the following needed actions:

• understanding the effectiveness of programs and policies in preventing plastic production through reducing, reusing, collecting and capturing plastics from land-based sources
• improving the United States' capacity to reuse and refill products
• increasing data availability and conducting life-cycle assessments to understand the environmental, economic, social and health impacts attributed to plastics
• addressing and improving consumer outreach and understanding the proper management of plastic and other waste
• improving the wastewater/stormwater management and capture systems

Proposed Regulatory Actions

The EPA proposes several potential regulatory reforms in order to achieve the proposed Objectives, which could provide an impetus for proposed regulatory reforms in either the executive or legislative branches of the federal government. Key potential regulatory actions under consideration include the following:

• TSCA for Pyrolysis: The Draft Strategy previews that the EPA is exploring new rules under the Toxic Substances Control Act (TSCA) for advanced recycling facilities that use pyrolysis to process recovered feedstocks onto the recycled plastics, citing concerns about the potential health and environmental risks posed by impurities that may be present in pyrolysis oils generated by plastic waste.²
• Plastic Production and Recycling Industry Regulations: The Draft Strategy recommends lawmakers "review and update regulations related to air emissions and water discharges of pollutants or waste disposal from plastic production and recycling facilities, including regulation of the production of plastic pellets." (Objective A2.4b)
• Hazardous Substance Release During Transit: The Draft Strategy calls on the federal government to prevent accidental releases of hazardous chemicals related to plastic production into the environment during transit, although the document does not provide further clarification on potential pathways for new or revised regulatory rulemaking. (Objective A2.4b)
• Regulatory Enforcement for Plastics Industry: In addition to the new regulatory focus on plastics in the existing regulatory regimes, the Draft Strategy calls for increased regulatory enforcement in the plastics industry, which could increase compliance costs for various entities. For instance, in order to minimize pollution, Objective A2.4 underscores the importance of "consistent implementation and enforcement of regulations at all levels of government to ensure that production facilities within the plastic sector are in compliance with applicable regulatory requirements."
• FTC Green Guides Enforcement: With regard to the business community, the Draft Strategy urges businesses to make greater use of the FTC Green Guides to make truthful claims. Further, the Draft Strategy calls on federal product suppliers to initiate efforts to increase awareness of the Green Guides and consequences of deceptive environmental claims. (Objectives B3.5 and B5.2)
• Preventing Pollution in Waterways: The Draft Strategy promotes implementation of regulatory tools intended to reduce trash loadings in waterways. Objective C1.2 recommends the EPA evaluate how existing Clean Water Act programs can be "more expansively and effectively utilized" to address trash loadings into waterways, including National Pollutant Discharge Elimination Systems (NPDES) permits, Total Maximum Daily Load development, water quality standards, impaired waterbody listings, nonpoint source management plans, effluent limitation guidelines and pretreatment standards.

In supplement to proposed regulatory reforms, the Draft Strategy promotes invigorated compliance enforcement activity for the regulated community, including the packaging industry, plastics manufacturers, waste management facilities and recycling facilities.

International Implications

Though the Draft Strategy is predominantly domestic in scope, it makes one key recommended action to address international plastic waste: the EPA calls for the ratification of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (Basel Convention) (Objective B6), which requires participating parties to control the transboundary movements of certain materials and hazardous wastes covered by the treaty and to take measures to prohibit certain exports if parties have reason to believe the exports would not be managed in an environmentally sound manner.

Plastic scrap and waste amendments were adopted by parties to the Basel Convention in 2019 to control exports and imports of most plastic scrap and waste. As a result, transboundary movements of most plastic scrap and waste to countries party to the Convention are allowed only with the prior written consent of the importing country and any transit countries, a process known as prior notice and consent. The amendments took effect on Jan. 1, 2021.

Currently, the EPA has authority under the Resource Conservation and Recovery Act (RCRA) to control transboundary movements of most hazardous recyclables and waste, but not all waste controlled under the Basel Convention. The Basel Convention covers toxic, poisonous, explosive, corrosive, flammable, ecotoxic and infectious wastes.³ Although the United States is not currently a party to the Basel Convention, this treaty still affects U.S. importers and exporters. Parties to the Basel Convention cannot trade Basel-covered waste with nonparties in the absence of a predetermined agreement between countries.

The U.S. signed the Basel Convention in 1990, and the U.S. Senate gave its advice and consent to ratification in 1992. The United States, however, has not ratified the Convention because it does not have sufficient domestic statutory authority to implement all of its provisions, according to the U.S. Department of State.⁴

Overview of Strategic Objectives

Objective A: Reduce Plastic Pollution During Plastic Production

In order to reduce plastic pollution during plastic production, Objective A features the following sub-objectives:

• reduce the production and consumption of single-use, unrecyclable or frequently littered plastic products
• minimize pollution across the life cycle of plastic products

To achieve these aims, Objective A focuses in part on upstream opportunities to reduce pollution, including via changes to plastic product design and production at plastic production facilities. It calls on the plastics industry to promote changes to the design of plastics products intentionally for reuse and recycling, use "less impactful" materials, phase out "unnecessary" products and ensure "proper controls" at plastic production facilities. As an alternative to binding mandates, the Draft Strategy proposes federal incentive programs to spur research on and innovation of alternative products to single-use, unrecyclable or frequently littered materials (Objective A1.3).

In supplement to reducing plastic pollution, Objective A seeks to minimize greenhouse gas (GHG) emissions associated with plastics production as part of meeting global, national and state GHG emissions goals. For instance, the Draft Strategy calls for increased research to understand the environmental effects of plastic production and to quantify the GHG emissions from the life cycle of plastic products.

Objective B: Improve Post-Use Materials Management

In order to improve post-use materials management, Objective B features the following sub-objectives:

• conduct a study of the effectiveness of existing public policies and incentives upon the reuse, collection, recycling and conservation of materials
• develop or expand capacity to maximize the reuse of materials
• facilitate more effective composting and degradation of certified compostable products
• increase solid waste collection and ensure that solid waste management does not adversely impact communities, including those overburdened by pollution
• increase public understanding of the impact of plastic mismanagement and how to manage appropriately plastic products and other waste
• explore possible ratification of the Basel Convention and encourage environmentally sound management of scrap and recyclables traded with other countries

Objective B focuses on national waste management infrastructure to improve recycling for increases in materials circularity. Recommended actions include research, capacity-building for waste management infrastructure and public outreach to educate stakeholders such as consumers.

While the EPA's National Recycling Strategy extensively identified actions to improve the U.S. recycling system, the Draft Strategy promotes further increases in circularity by developing reuse systems for plastic and alternative products and composting systems for certified compostable materials. The success of the actions under Objective B would depend in part upon state, territorial, tribal and local governments' (STTL) ability to increase the reuse, collection, recycling and conservation of materials.

The Draft Strategy recommends several other key strategies:

• exploring the development of an accredited, voluntary third-party certification program for plastic recyclers to increase the safe and effective management of plastic recyclables in the United States
• updating, improving and streamlining product labeling standards to facilitate efficient and effective waste management, including both recycling and composting infrastructure
• providing funding and technical assistance to STTL governments to improve their waste management infrastructure, with priority to disadvantaged communities (DAC) overburdened with pollution in order to reduce disparities in resource management infrastructure and access
• educating consumers on the impact of plastic mismanagement and how to appropriately manage plastic products and other waste, recognizing that consumers play a pivotal role in determining how plastic products are used and disposed of

Objective C: Prevent Trash and Micro- and Nano-Plastics from Entering Waterways and Remove Escaped Trash from the Environment

To prevent trash and micro- and nano-plastics from entering waterways and remove escaped trash from the environment, Objective C features the following sub-objectives:

• identify and implement policies, programs, technical assistance, and compliance assurance actions that effectively prevent trash as well as micro- and nano-plastics from getting into waterways or remove such waste from waterways once it is there
• improve water management to increase trash capture in waterways and stormwater and wastewater systems
• increase and improve measurement of trash loadings into waterways to inform management interventions
• increase public awareness of the impacts of plastic products and other types of trash in waterways
• increase and coordinate research on micro- and nano-plastics in waterways and oceans

Objective C focuses on interventions to prevent and remediate waste microplastics that enter the environment in order to reduce plastics and other waste in waterways and the oceans. Such interventions could include implementing programs to reduce littering and illegal dumping; installing trash-capture technologies to collect and remove trash from stormwater, wastewater and surface waters; and increasing street sweeping to remove trash before it is carried by stormwater or wind into waterways. Similarly, the Draft Strategy promotes interventions to reduce micro- and nano-plastic emissions into the environment to address potential risks to human and ecosystem health.

The Draft Strategy seeks to galvanize action at the consumer level to prevent and remediate pollution by increasing public awareness of the nature and impacts of trash pollution and what targeted audiences can do to help address the problem. To disseminate such messaging, the Draft Strategy promotes several distribution channels such as through partnerships with schools, NGOs and private entities.

Conclusion

The Draft Strategy presents numerous pathways for EPA to work collaboratively with various domestic organizations to move towards a circular economy and reduce plastics pollution. As a whole, the Draft Strategy has a far-reaching scope, necessitating buy-in from a wide range of actors in order to effectively implement broad plastic waste policy.

Interested stakeholders are encouraged to weigh in with their feedback via public comment by July 31, 2023.

For further information, please contact the authors or another member of Holland & Knight's Public Policy & Regulation Group.

Holland & Knight Intern Molly Broughton also contributed to this alert.

Notes

¹ Circular economy is defined in the Save Our Seas 2.0 Act as "a systems focused approach and involves industrial processes and economic activities that are restorative or regenerative by design, enable resources used in such processes and activities to maintain their highest values for as long as possible, and aim for the elimination of waste through superior design of materials, products, and systems (including business models)."

² See: "Executive Summary: Goal and Scope of the Strategy," page 15.

³ See Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.

⁴ See Basel Convention on Hazardous Wastes, Office of Environmental Quality, U.S. State Department.

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