EPA's plastic pollution strategy offers signal to industry and input for state regulatory efforts

The US Environmental Protection Agency (EPA) recently unveiled its National Strategy to Prevent Plastic Pollution (Plastic Pollution Strategy), a comprehensive document that outlines voluntary measures and regulatory opportunities aimed at promoting the development of a circular economy that “reduces materials use, redesigns materials to be less resource intensive, and recaptures ‘waste’ as a resource that can serve as feedstock to manufacture new materials and products.”

The Plastic Pollution Strategy, released on November 21, 2024, is the third part in EPA’s Series on Building a Circular Economy for All, joining the agency’s national strategies on recycling and reducing food loss and waste. It also complements the White House’s July government-wide Mobilizing Federal Action on Plastic Pollution report.

The new national strategy document does not propose to create regulatory mandates but offers “a 10-year vision of opportunities for voluntary and regulatory actions that can be taken by businesses; nongovernmental organizations; federal, Tribal, state, local and territorial governments; academia; and consumers.”

While the incoming Trump Administration will likely bring major changes to the EPA’s priorities and may sideline the Plastic Pollution Strategy, the document remains a signal to the industry and others about a long-term federal trajectory on actions to address plastic pollution. It is also a potential roadmap for state legislators, regulators, and enforcers to continue to coordinate and enhance their approaches.

Overview

The Plastic Pollution Strategy sets forth six key objectives.

• Objective A – Reduce pollution from plastic production
• Objective B – Innovate material and product design
• Objective C – Decrease waste generation
• Objective D – Improve waste management
• Objective E – Improve capture and removal of plastic pollution
• Objective F – Minimize loadings and impacts to waterways and the ocean

These objectives are aimed primarily at elaborating opportunities for nonfederal policymakers to take action that supports the broader shift toward a circular economy. The strategy envisions an approach to materials management that mitigates relevant environmental impacts, minimizes waste, and ensures that materials are put to their highest value uses for as long as possible.

Other voluntary measures are specifically directed toward manufacturers and their plastic production operations. For instance, under Objective A, EPA proposes that manufacturers explore opting into certification programs to help guarantee that their plastic products that meet regulatory standards “are not replaced with products that might be manufactured under less rigorous environmental standards.”

Under Objective B, EPA recommends that manufacturers “design products and systems that minimize waste and apply reuse systems or alternative disposable materials…that reduce lifecycle environmental and human health impacts.”

To decrease waste generation, Objective C proposes opportunities for reducing the production and consumption of various single use plastics and for further developing and enhancing policies and programs for decreasing waste, such as improved education about the impacts of plastic pollution and increased reliance on reusable packaging.

EPA also encourages the private sector under Objectives D and E to “support the scaling up of existing composting infrastructure to increase capacity for processing additional feedstocks and higher volumes of organic materials,” while at the same time deploying processes that capture and remove plastics from waterways.

Lastly, under Objective F, EPA proposes that the industry partner with the public sector to develop technologies that prevent microplastics and nanoplastics from getting into waterways and the ocean. Such efforts to target microplastics through public policy are especially timely given the increasing volume of litigation over microplastics in recent years, by which environmental activists often seek to have courts preempt more incremental regulatory process.

Key takeaways for the advanced recycling industry

As chemical or advanced recycling technologies continue to develop, the Plastic Pollution Strategy, without clear reasoning, rejects such activities as part of its circular economy approach. In so doing, EPA reaffirmed its largely unexplained position that the conversion of nonhazardous solid waste to fuels does not constitute “recycling” activity.

The Plastic Pollution Strategy also reinforces EPA’s newly proposed rule under the Toxic Substances Control Act (TSCA) to require certain actions on 18 chemicals made from plastic waste-derived feedstocks. The rule will “require companies producing pyrolysis oil-based feedstocks for use in fuel to conduct testing for certain impurities,” which would then need to be tested by EPA before they could be used in the manufacture of fuels.

Compulsory testing by manufacturers and EPA’s second-level review of testing results would likely increase production costs and regulatory oversight for those engaged in the trash-to-fuel industry. Advanced recycling is one area in which a new federal administration may take a fresh look at EPA's policy position – evaluating whether EPA's unilateral decision to eschew support for promising technologies in favor of blanket statements on the developing area is warranted, as the world seeks multifaceted solutions for plastic pollution problems.

In sum, EPA’s new strategy for preventing plastic pollution articulates the Biden Administration’s plans for a more sustainable and circular economy for plastics. While action on the document is uncertain given next year's change in administration, the document provides perspective for the industry and input for states as they develop plastics strategies. Stakeholders in the plastics industry are encouraged to carefully review the document and consider how it might influence their business approaches.

Contact

DLA Piper’s Plastic Force is engaged with stakeholders across the industry and can provide additional information on regulatory compliance and sustainable approaches to help. For more information, please contact the authors.