EPA releases Draft National Strategy to Prevent Plastic Pollution

Plastic pollution has outpaced the efforts of governments, business, nonprofits and consumers to contain it. In response, policymakers are embracing increasingly aggressive measures to control the fate of a material once deemed the miracle of the modern age.

The US EPA joined the fray on April 24, 2023, when it released the Draft National Strategy to Prevent Plastic Pollution, opening the first-of-its-kind document to a 45-day comment period. The draft is not a proposed regulation but a comprehensive voluntary action plan that describes a path to a circular economy 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.”

Influencing the direction of federal plastics regulation for years to come

When adopted in its final form, the National Strategy to Prevent Plastic Pollution will impose no new regulatory mandates. But industry can look to the document to anticipate how EPA will integrate concerns about plastic pollution into its rulemaking and implementation. Companies relying on plastic for material, packaging, or other production elements (read: essentially every business) should carefully consider EPA’s draft Plastic Pollution Strategy, as it will influence the direction of federal plastics regulation for many years.

To prepare the draft, EPA collected input from multiple stakeholder groups – including state, Tribal, and local governments; business and industry; the nonprofit sector, and academia – on a complex policy proposal that implicitly balances the cost of accelerating plastic pollution against the important roles plastic plays in modern life.

Acting as a companion to EPA’s National Recycling Strategy (another comprehensive non-regulatory policy document), the draft Plastic Pollution Strategy targets three key objectives:

• Objective 1 – Reduce pollution during plastic production
• Objective 2 – Improve post-use materials management
• Objective 3 – Prevent trash and micro/nanoplastics from entering waterways and remove escaped trash from the environment

EPA proposes several voluntary actions under each objective to support a “shift to a circular approach” in the US economy. For instance, under Objective 1, EPA proposes to “[r]educe the production and consumption of single-use, unrecyclable, or frequently littered plastic products” and to “[m]inimize pollution across the life cycle of plastic products.” Under Objective 2, EPA proposes various measures to improve infrastructure around waste collection and value reclamation, educate the public, mitigate impacts on vulnerable and overburdened communities, and coordinate internationally on sound waste management practices. Finally, EPA’s proposed actions under Objective 3 focus on enhancing public and policymaker understanding of the nature of the plastic pollution problem and on assessing the effectiveness of available remediable policy options. EPA then elaborates a series of policy approaches and recommendations to facilitate the attainment of each proposed action.

Important points for the trash-to-fuel industry

Critical for companies in the nascent trash-to-fuel industry, the draft contains important reflections on EPA’s view of these technologies and their role in a circular economy. EPA’s draft strategy rejects “processes that convert solid waste to fuels, fuel ingredients, or energy from being considered as a recycling practice.” EPA thus draws a clear line between “mechanical recycling” and some forms of “chemical recycling.”

As the standard form of recycling employed by municipal collection programs, mechanical recycling seeks to reclaim plastic waste in essentially the same chemical state as consumers receive – and dispose of – the material in their everyday use. Although not without environmental risks of its own, mechanical recycling has a longer tenure, is better established, and both this draft and the National Recycling Strategy seek to expand its use.

Chemical recycling, in contrast, seeks to use processes such as pyrolysis to convert plastic back into its chemical constituents for use in new “virgin” resins, fuels, and related intermediates. Industry has increasingly touted the potential of chemical recycling as a path to addressing plastic pollution. EPA voices concerns, however, that chemical recycling will slow the United States’ attainment of net-zero GHG emissions. EPA also worries that chemical recycling could exacerbate risks to human health and the environment by increasing the generation of toxic wastes and residues. EPA cites these concerns in announcing its intent to “to require companies submitting new pyrolysis oil chemicals to the Agency for review under [the Toxic Substances Control Act] to conduct testing for impurities that could be present in the new chemical substance prior to approval, and ongoing testing to ensure there is no variability in the plastic waste stream that is used to generate the pyrolysis oil.” By no means does EPA close the door to all chemical recycling processes, and the industry remains a promising venue for new technologies and investments. EPA’s words do counsel caution, however, and its clear signaling of the priority regulatory focuses for the industry (hazardous wastes, input and output impurities/controls, and reliable testing) are instructive.

Identifying opportunities in federal funding for mitigating plastic pollution

Beyond predicting regulatory strategy, the document can be useful for interested private sector stakeholders to identify opportunities related to federal funding priorities around mitigating plastic pollution. For instance, EPA endorses funding for “research, development, demonstration, and deployment of technologies and processes that ensure that collected waste enters and stays in the waste management system.” The draft also promotes funding for “communities to create and implement plans to facilitate reuse that have a greater need for support” and the creation of an “innovation challenge program” to develop plastics alternatives.

Moving forward

The Draft National Strategy to Prevent Plastic Pollution signals a new era in EPA’s approach to plastics and plastic pollution. Interested stakeholders should consider how their inputs could improve and refine the draft. EPA has asked that all comments on the draft be submitted by June 16, 2023. DLA Piper’s Plastics Task Force is engaged with stakeholders across the industry and can provide additional information on the potential risks and benefits implicated by the Draft National Strategy to Prevent Plastic Pollution, or advice on the comment submission process. To find out more, please contact either of the authors.