February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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New Plastics Bill Would Place a Moratorium on All Permits for New Plastics Facilities Until Massive Slate of New Environmental Regulations Adopted

The Protecting Communities from Plastics Act (S. 5163/H.R. 9388), introduced late last week by Senator Cory Booker (D-NJ), Representative Jared Huffman (D-CA-02), Senator Jeff Merkley (D-OR), and Representative Alan Lowenthal (D-CA-47), may be the first of many evolving efforts aimed at reducing plastic production and increasing attention toward environmental justice. Although the bill will not likely gain traction, petrochemical facilities with planned expansions should watch this bill for developments. Even without passage, elements of the bill could well make their way into state legislation.

Key Takeaways

The proposed bill is comprehensive, purporting to require the Environmental Protection Agency (EPA) to regulate various elements of the plastic and petrochemical industry under the authority of multiple federal environmental statutes, some of which the bill would also amend. Source reduction targets, permit restrictions, and grant programs to incentivize reuse and refill projects are just some mechanisms the bill would employ to achieve its lofty aspirations.

Perhaps most notably, the bill imposes a “Temporary Pause Period” on EPA’s ability to issue new permits under the Clean Air and Clean Water Acts (CAA, CWA). The pause has teeth because it would run from the date of enactment unless and until EPA fully implements all of the regulatory changes required by the bill. The Temporary Pause Period also directs EPA to object to issuance of state-agency-administered CAA and CWA permits.

In addition to the moratorium, as it specifically concerns permitting, the bill mandates that EPA promulgate rules requiring that all permit applications state how a proposed operation or expansion would impact any fenceline and environmental justice communities. Under the proposed legislation, such regulations must further provide communities with the opportunity to attend a community meeting and provide public comment regarding any permit application that could affect them.

Some of the other strict regulatory changes that implicate – and would prolong – the EPA’s permit moratorium include:

  1. Restriction of siting for relevant facilities within five miles of schools, residences, and other community buildings;

  2. Regulation of certain chemicals used in plastics production as toxic substances under the Toxic Substances Control Act;

  3. Regulation of certain plastics products as hazardous wastes;

  4. Establishment of zero-emission/leak free/no discharge standards under the CAA;

  5. In addition to other New Source Performance Standard (NSPS) revisions, the creation of a novel CAA New Source Performance Standard category for petrochemical feedstock and polymer production facilities; and

  6. Revisions of certain CWA effluent limitations associated with petrochemical feedstock and polymer production.

Looking Forward

While many of the bill’s provisions revisit previous legislative efforts (like 2021’s “Break Free From Plastic Pollution Act,” which never advanced), the bill nonetheless reflects a growing wave of plastic and petrochemical opposition. Key provisions, like the permit moratorium, may never gain traction in Congress, however, certain states will likely begin implementing their own versions of the bill, creating a patchwork of laws that could – as is often the case with products and toxic substances regulation – eventually compel some measure of federal management. The core principles underlying the bill won’t be disappearing anytime soon.

The Beyond Petrochemicals Campaign

The bill may well be a product of Bloomberg’s Beyond Petrochemicals effort, the grassroots public health and climate change campaign aimed at preventing increases in US emissions from refineries and petrochemical plants, partly by halting the construction or expansion of 120 planned petrochemical projects.

© 2023 Beveridge & Diamond PC National Law Review, Volume XII, Number 340
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About this Author

Madeleine Boyer Environmental Attorney Beveridge Diamond
Principal

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental...

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Evynn M. Overton Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Principal

Evynn represents clients in complex civil and criminal environmental litigation, working closely with technical experts to build strong technical defenses and address other client needs.

She excels at working collaboratively and efficiently, and in translating complex technical and legal issues into understandable terms.

Evynn manages sensitive internal investigations, implements strategies for providing fast-paced and cost-efficient responses to subpoenas and discovery requests, assists in the development and implementation of corporate compliance plans, and negotiates...

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Bina R. Reddy Environmental Litigation Attorney Beveridge & Diamond Austin, TX
Principal

Bina has a nationwide practice representing clients – including FORTUNE® 50 companies and several major municipalities – in litigation involving federal and state environmental statutes, class actions, toxic tort and product liability, and constitutional claims.

Bina has devoted a substantial portion of her practice to litigation under federal environmental citizen suit provisions and has successfully defended citizen suits under the Resource Conservation and Recovery Act (RCRA), Clean Water Act, Clean Air Act, and the Safe Drinking Water Act. This experience includes the defense of...

512-391-8045
Collin Gannon Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Associate

Collin’s national practice in environmental, toxic tort, and constitutional litigation focuses on attaining regulatory compliance across industrial sectors.

His background in the humanities and natural sciences uniquely positions him to understand clients’ sophisticated technical processes, provide clients counsel concerning these processes, and then capably represent clients’ interests in any litigation forum.

Collin’s interest in environmental litigation stems from his study of the intersection between law and science. Before law school, Collin interned with the Sandia...

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