Legislative Update: EPA Finalizes Power Plant Climate Rules

EPA Finalizes Power Plant Climate Rules

On April 25, the EPA finalized four new rules seeking to crack down on pollution from fossil fuels electricity generation by imposing stricter standards on greenhouse gas (GHG) and mercury emissions from power plants, as well as wastewater discharge and coal ash management.  The climate rule represents a significant milestone as it would mark the first instance of existing U.S. power plants being regulated for greenhouse gases, a departure from past endeavors that were found to be illegal overreaches of executive authority.

The GHG emissions standards, particularly, have evolved significantly since the Obama administration. Under the Biden administration, the EPA aims to establish rules targeting both existing coal-fired and new natural gas-fired power plants that they hope will withstand anticipated legal challenges from states and industry groups.

EPA Administrator Michael Regan emphasized the durability of each rule.  “You’ve heard us say we are measuring twice and cutting once and learning from past actions and past results that we’ve seen,” Regan told reporters. “So we feel really confident that we have carefully crafted a suite of technology standards that will allow for the utilities to look at a consolidated planning process to meet the environmental objectives of each of the separate actions.”

The final carbon rule introduces several modifications from last year’s draft, including omitting green hydrogen as a benchmark technology for future gas-fired units. However, utilities can still utilize hydrogen blending to comply. Additionally, it adjusts certain deadlines for fossil fuel plants to integrate carbon capture systems or retire while also mandating more gas plants to adopt carbon capture technologies by lowering the trigger from a 50 percent run-time to 40 percent.

The enhanced air toxics regulations represent the initial substantial revision since the EPA issued its original power plant standards in 2012, reversing a determination made during the Trump administration that alterations were unnecessary.

Senator Shelley Moore Capito (R-WV), ranking member of the Senate Environment and Public Works Committee, vowed to spearhead efforts in the Senate to reverse the EPA’s “illegal” power plant climate rule. Capito announced that she intends to introduce a Congressional Review Act (CRA) resolution to counter what she views as “job-killing regulations” by the EPA. Despite concessions made by the EPA, such as extending compliance deadlines for coal plants, Capito remains critical, asserting that the rule threatens affordable and reliable energy access for households and businesses nationwide. The CRA process, could potentially overturn key elements of the Biden administration’s climate agenda if supported by enough bipartisan votes but would likely face a Presidential veto and require a steep two-thirds majority to override the veto.

US and Industry Groups Urge Flexibility and Pragmatic Solutions at UN INC-4

The UN  Intergovernmental Negotiating Committee (INC) convenes this week for a fourth round in hopes of advancing a legally binding global agreement to end plastic pollution.  The United States supports a plastics treaty focused on improving recycling and imposing obligations on all nations to address pollution while urging a consensus-driven approach to ensure broad global backing. At the Ottawa conference, U.S. Undersecretary of State Jose Fernandez emphasized the importance of crafting an agreement that can garner widespread adoption, even if it means initial compromises. Key priorities for the U.S. include universal obligations throughout the plastic life cycle, flexibility for country-specific implementation, and the involvement of major producer and consumer countries.

While the U.S. acknowledges the need for ambitious action, it also highlights practical political and technological limitations in achieving immediate bans or alternatives to plastic. Fernandez underscored the necessity of incremental progress and recognizing plastic’s integral role in various sectors. As discussions unfold, stakeholders face complex challenges and considerations, including balancing environmental objectives with economic realities and technological innovation while finding common ground on contentious issues, such as resin production limits

Some environmental advocates and countries are pushing for the inclusion of caps on resin production – an act US policy makers lack the legal authority to actually do.Meanwhile, plastics industry representatives and other nations and industry groups have expressed concerns over the potential social and economic impacts of curtailing plastic production.  VI and other industry groups participating in the treaty negotiations advocate for a shift towards demand-side measures like recycled content and extended producer responsibility programs, as opposed to supply-side restrictions.

Chris Jahn, president and CEO of the American Chemistry Council (ACC) and secretary of the International Council of Chemical Associations (ICCA), emphasized the importance of a recently released Oxford Economics production cap study that provided crucial data to inform negotiators about the potential societal impacts of implementing a cap on plastic production.   The study cautions against a global rate cap, suggesting that it could lead to a shift in consumer demand towards alternative products with potentially higher greenhouse gas footprints, as well as an increase in the prices of plastic and consumer goods.  Moreover, the report raises concerns about the practicality of exempting specific end-uses from the associated cost increase and questions the feasibility of capping production when the growth rate of recycled resin manufacturing surpasses that of virgin resin.

Notably, a Congressional delegation, including Sens. Jeff Merkley and Sheldon Whitehouse, with Reps. Jared Huffman, Peter Welch (D-VT), and Kristin Gillibrand (D-NY), also attended the talks to push for an ambitious agreement. Senator Whitehouse expressed concerns about slow progress in previous rounds of negotiations, emphasized the need to address objections from “laggard states” in the treaty talks, and indicated that a stronger stance from the US could expedite negotiations. At the same time, US negotiators are acutely aware that any treaty requires a two thirds vote in the Senate and the need to develop an “implementable” agreement.

Lawmakers Reintroduce Protecting Communities from Plastics Act 

On April 18, Representative Jared Huffman (D-CA), along with Senators Cory Booker (D-NJ) and Jeff Merkley (D-OR), reintroduced the Protecting Communities from Plastics Act (PCPA). The bill aims to tackle plastic production management and environmental justice through measures and regulations restricting plastic production processes and reducing greenhouse gas emissions from petrochemical plants. While the intent to address plastic pollution is commendable, the bill’s approach overlooks broader policy solutions needed to tackle the complex issue effectively.

Focusing solely on restricting plastic production without addressing fundamental waste and recycling policies undermines the goal of creating a circular economy. Currently, less than 10% of plastic is recycled in the U.S., highlighting the urgent need for comprehensive solutions. Moreover, the bill’s provisions, including a temporary moratorium on new plastic manufacturing permits, effectively ban plastic manufacturing and ignore the significant economic implications.

Plastic plays a crucial role in various industries, including those producing life-saving medical devices and components essential for clean energy infrastructure. Contrary to the bill’s implications, plastic is often integral to reducing carbon emissions and advancing climate and environmental goals. Its lightweight and low-carbon properties make it indispensable in numerous clean energy applications, such as electric vehicles, solar panels, wind turbines, and clean water infrastructure.

Recent efforts to bolster U.S. manufacturing have demonstrated the importance of a robust supply chain, with plastic serving as a critical component in various manufacturing processes, including semiconductor chips. As the country shifts towards domestic production, this manufacturing provides jobs, boosts the economy, and revitalizes communities.

While recognizing the need to address plastic pollution, balanced policies that promote sustainability without compromising economic growth or stifling innovation are essential. Collaborative efforts between policymakers and industry stakeholders are necessary to advance sound policy solutions and foster a circular economy for plastics. The Vinyl Institute remains committed to working with lawmakers to achieve these goals while ensuring that legislation does not inadvertently harm the economy or jeopardize job opportunities for thousands of Americans.

The PCPA is cosponsored by U.S. Senators Dick Durbin (D-IL), Bernie Sanders (I-VT), Chris Van Hollen (D-MD), and Peter Welch (D-VT) and U.S. Representative Betty McCollum (D-MN). The bill has garnered support from about a third of the environmental groups that supported the bill in the 117th Congress.

EPA Finalizes Its Framework for Evaluating Chemical Risk Assessment Under TSCA

The Environmental Protection Agency (EPA) issued its final Toxic Substances Control Act (TSCA) “framework” rule on April 23, which governs the risk evaluations of existing chemicals. The rule aims to broaden the scope of reviews and incorporates several controversial policies introduced by the Biden administration, notably the “whole chemical” approach for identifying unreasonable risk. The rule replaces much of the Trump-era risk evaluation policy, requiring evaluations to consider all known conditions of a chemical’s use and mandating the use of the “whole chemical” risk determination model. EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, Michal Freedhoff, emphasized the importance of comprehensive protection based on strong science in safeguarding public health.

Additionally, the rule abandons assumptions about worker protective equipment, mandates consideration of chemical releases regulated by other laws, and eliminates a regulatory definition of “best available science.”  While methods of cumulative risk assessment were discussed in the proposal, the final rule does not explicitly require their use but expresses EPA’s commitment to considering them for future evaluations based on available information and scientific advances. Ultimately, the courts will need to define the limit of EPA’s authority under the law.

EPA Draft Report Highlights Lingering Risks of Legacy Asbestos 

On April 15, the EPA released a draft risk evaluation indicating that all types of asbestos pose an unreasonable risk to human health, particularly in legacy uses prevalent in buildings constructed before 1978 and trace amounts found in products like talc. Despite efforts to phase out certain types of asbestos fibers, contamination persists, leading to serious health risks when disturbed, such as during demolition or burning of asbestos-laden materials. The report underscores the ongoing danger posed by asbestos exposure, which can result in various cancers and other severe health complications.

While some welcome EPA’s acknowledgment of the risks associated with legacy asbestos, others express concerns about the assessment’s scope and methodology. Critics, including the American Chemistry Council (ACC), question EPA’s approach of treating all asbestos fiber types equally regarding cancer potency, arguing that scientific evidence suggests significant variations in their health impacts. EPA is under a court-ordered deadline of Dec. 1 to complete the “part 2” risk evaluation. Determining “unreasonable risk,” if finalized, would trigger an extensive rulemaking process requiring the EPA to enact restrictions limiting unsafe exposures.