Legislative Update: Merkley Questions Regan About Plans for Developing Fuels from Plastic Waste

Senator Merkley Questions Regan About Plans for Developing Fuels from Plastic Waste

On April 5, Oregon Sen. Jeff Merkley sent a letter to Environmental Protection Agency (EPA) Administrator Michael Regan strongly supporting combating climate change and promoting environmental justice and equity, while raising concerns over a ProPublica report suggesting that the EPA’s program under the TSCA is causing increased toxic exposure to frontline communities. Merkley notes that EPA’s New Chemicals Division (NCD) reportedly began streamlining approval of new chemicals for substitutes to petroleum-based fuels that use bio-based or waste-derived sources, including one that has a 1 in 4 chance of causing cancer from lifetime exposure to smokestack emissions. The statement he found particularly troubling is that companies have received approval to create fuel from plastic waste, asserting that chemical recycling increases greenhouse gas emissions, subsidizes the petrochemical industry, and harms communities near these facilities.   He asked that Regan reply to a series of questions by April 30th about how EPA’s process and reasoning behind the New Chemicals Division approval   and the validity of ProPublica’s claims.

The EPA Office of Chemical Safety and Pollution Prevention’s (OCSPP) in January announced a new effort under TSCA to streamline the review of new chemicals that could be used to displace current, higher greenhouse gas emitting transportation fuels.  The NCD has implemented a process to assess the risk and applies mitigation measures, as appropriate, for substitutes to petroleum-based fuels and fuel additives that use biobased or waste-derived sources to produce biofuels.  The NCD’s effort supports the goals of the agency’s Renewable Fuel Standard (RFS) program and in support of its 2021 Climate Adaption Action Plan.

 

Senate Launches Series of Hearings to Find a National Strategy on Plastics

On March 30, the Senate Environment and Public Works Subcommittee on Chemical Safety, Waste Management, Environmental Justice, and Regulatory Oversight launched a series of six hearings to develop national strategies to address the environmental and health risks of plastics. As with previous hearings, the panel’s positions are mostly split along party lines. Democrats consistently introduce sweeping bills on plastics, often calling for bans on plastics and their manufacturing. Republicans strongly oppose these bills arguing that they would harm American businesses and their supply chains, both economically and in terms of their competitiveness and ability to produce the many innovative and important solutions that plastics offer, including green technologies.

One area where there was bipartisan support was an initiative led by Sens. Dan Sullivan (R- AK) and Sheldon Whitehouse (D-RI)-led effort to pass a third version of the Save Our Seas bills in 2018 and 2020.

Subcommittee Chairman Jeff Merkley (D-OR), who is also the lead sponsor of the Break Free from Plastic Pollution Act, spoke about the mass production of plastic that began during World War II and continued to boom in the decades that followed, noting its versatility, durability, and low production costs. However, he and several Democrats and witnesses emphasized the challenges associated with plastics, including greenhouse gas emissions “throughout the life cycle of plastics” and the close ties to fossil fuels and the petrochemical industry.

Merkley also cited the immense amounts of plastic waste, low recycling rates of plastics, and the presence of microplastics in various ecosystems, food systems, and even the human body as other challenges.

Chairman Merkley warned that the fossil fuel industry’s plan to increase plastic production will only exacerbate these problems. “Just to be clear: These hearings are not about eliminating the production of plastics or composites,” Merkley said in his opening remarks. “The fossil fuel industry is planning a massive increase in plastics production, but that will only exacerbate the problems and make it even more urgent that we address them.”

Arvind Ravikumar, co-director of the energy emissions and modeling lab at the University of Texas at Austin, told the committee said the biggest effect on greenhouse gas emissions from fossil-based virgin plastic production comes from the upstream impacts of oil and gas drilling to manufacture feedstock chemicals.

Sen. Edward Markey (D-MA) criticized emissions from the plastics industry and asked Ravikumar whether a doubling or tripling of global plastics production over the next three decades, as some analysts have predicted, would “jeopardize our target of limiting global warming to 1.5° Celsius by 2050.” Ravikumar said it depends, pointing to the need for stronger EPA regulations to reduce methane from oil and gas production and other efforts that could limit the impact. Markey claimed that if the plastics industry were a country, it would rank as the fifth-largest emitter of greenhouse gases. However, other studies show that large materials industries such as steel and concrete would have similar impacts and would be ranked as the third largest emitter if they were ranked as a country.

Ranking Member Markwayne Mullin (R-OK) argued that Democrats want to focus on ending U.S. energy production, explaining that renewable energy relies on petrochemicals derived from oil and natural gas. In his opening remarks, he emphasized the use of petrochemicals in the production of electric vehicles, wind turbines, solar panels, and other innovative technologies. Mullin added a report from consulting firm McKinsey & Co. to the record highlighting the advantages of plastics over competing packaging materials.

Mullins advocates innovation over regulation, pointing to private sector advances in recycling technology, particularly advanced recycling. Despite concerns from environmentalists, he maintains that advanced recycling is essential and is supported by legislation in Oklahoma and 23 other states. Mullins calls for future hearings to focus on innovation and support for ideas that move society forward with a realistic perspective, rather than attempting to ban crucial innovations in modern society.

Hota GangaRao, a civil engineering professor at West Virginia University, testifying for the American Composites Manufacturers Association, highlighted the importance of plastics in creating lightweight composite bridges, electric cars and wind turbine blades, and supporting approximately 1 million jobs in the U.S. plastics industry. GangaRao noted that fiber-reinforced plastic composites emit 80% less carbon dioxide during manufacturing compared to steel materials. He urged Congress to invest in research and development of composites while addressing the problem of single-use plastics by focusing on developing durable, recyclable, and biodegradable materials.

Chairman Merkley provided no further information on future hearings.

 

White House Completes TSCA Risk Management Rule on Methylene Chloride

The White House Office of Management and Budget (OMB) has completed its review of the EPA’s draft Toxic Substances Control Act (TSCA) risk management rule for methylene chloride. This clears the way for EPA to publish the proposal, which will demonstrate how the agency plans to regulate other substances and adjust chemical safety rules to protect workers from occupational exposures. The office completed its interagency review of the TSCA proposal on April 10. This is the second risk management proposal based on a risk assessment under the reformed law, following the agency’s release of a chrysotile asbestos proposal last year.

Compared to the asbestos rule, EPA officials have indicated that the methylene chloride rule will be more nuanced. According to Brian Symmes, acting director of the TSCA office’s existing chemical risk division, the upcoming proposals will reveal the full range of tools EPA can use in the rulemaking. The rulemaking process will focus on commercial-grade products and industrial exposures, with coordination between EPA and the Occupational Safety and Health Administration (OSHA) to ensure consistency and address any differences.

Symmes also mentioned that EPA and OSHA are developing a new memorandum of understanding (MOU) to guide future work on existing chemicals. This follows an MOU on new chemical reviews that the agencies signed in the final days of the Trump administration. The EPA is also considering implementing chemical safety regulations, including inspections, compliance assistance, and other concerns, but has not provided specific details.

The interagency review of the methylene chloride proposal took more than four months, from November 22 to April 10, as the original EPA proposal faced opposition within the government. The Department of Defense (DOD), NASA, and the Small Business Administration (SBA) all expressed concerns, though the specific issues remain unclear. DOD and NASA have previously raised concerns that led to a delay in the interagency review of the national drinking water standard for the two most scrutinized PFAS earlier this year.

 

WOTUS Updates

As expected, President Joe Biden vetoed a Congressional Review Act (CRA) resolution aimed at blocking the EPA and the Army Corps of Engineers’ rule redefining “Waters of the United States” (WOTUS). Biden asserts that the revised 2023 definition provides clear guidelines for waters protected under the Clean Water Act (CWA) and promotes infrastructure projects, economic investment, and agricultural activities while safeguarding water quality and public health. The President argued in his April 6 veto message that the resolution would create uncertainty, jeopardizing economic growth for various sectors, including agriculture and local communities.

The veto comes after the Senate passed the resolution (H.J. Res. 27) on March 29 by a 53-43 majority, following the House’s passage of a companion measure earlier last month by a 227-198 vote. The WOTUS rule aims to re-establish policies that existed prior to 2015, when the Obama administration adopted a new definition based on the Supreme Court’s “significant nexus” test for CWA jurisdiction. The new rule also includes several exemptions and modifications to account for multiple high court decisions in CWA cases.

On April 12, a federal judge in North Dakota granted a preliminary injunction request from 24 state attorneys general to block the implementation of the Biden administration’s revised definition of WOTUS in their states. This decision increases the number of states that have blocked implementation of the rule to 26, further weakening EPA’s legal defenses. Judge Daniel Hovland of the U.S. District Court for the Eastern District of North Dakota ruled in favor of the 24 Republican state officials, led by West Virginia AG Patrick Morrisey, and denied EPA’s motion for oral argument.

The ruling builds upon a judgment last month by a Texas federal court that granted injunctions against the rule in the states of Texas and Idaho. The judge found that the 2023 Rule is neither “understandable” nor “intelligible,” with unlimited boundaries, and raises a number of statutory and constitutional concerns. However, at the request of industry plaintiffs, Hovland limited his ruling to the 24 states named as plaintiffs in the lawsuit, rather than extending its application nationwide.

The EPA’s only victory in defending the rule comes from a federal court in Kentucky, which denied the state and industry’s motion for a preliminary injunction and dismissed their case on the rule in its entirety on March 31. The court argued that the parties lacked standing and were unlikely to succeed on the merits of their claim.