On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals subject to premanufacture notices (PMNs). The rulemaking reflects a level of EPA discomfort with certain new chemicals derived from plastic waste. This article explains the significance of this proposal.
Earlier this year, the EPA issued a draft of its National Strategy to Prevent Plastic Pollution and, together with its National Recycling Strategy, identified how the agency will prevent plastic waste and reduce, reuse, recycle and capture plastic from land-based sources. The former strategy includes several goals, one of which is to eliminate plastic waste release and other waste from land-based sources by 2040. The EPA does not view activities that convert non-hazardous solid waste to fuels or fuel substitutes (plastics-to-fuel) or for energy production to be “recycling” activities, such as pyrolysis. The EPA intends to require companies submitting new pyrolysis oil chemicals for review under TSCA to conduct testing for impurities that could be present in the new chemical substance prior to approval and ongoing testing to ensure no variability in the plastic waste stream is used to generate the pyrolysis oil.
Based on these pronouncements, the proposed SNUR is unsurprising. It reflects the EPA’s new approach to plastics-to-fuel chemicals. The 18 chemicals at issue are made from plastic waste-derived feedstocks. The proposed SNURs would ensure they are contaminant-free before they can be used to make transportation fuels.
The rulemaking reflects a level of EPA discomfort.
The EPA approved the plastic-based feedstocks in 2015 and 2019 but says it now knows more about their impurities. The proposed SNURs would require EPA review before the manufacturing or processing of the chemicals using waste-derived feedstocks that contain any amount of these chemicals: heavy metals, dioxins, phthalates, per- and polyfluoroalkyl substances, polybrominated diphenyl ethers, alkylphenols, perchlorates, benzophenone, bisphenol A, organochlorine pesticides, ethyl glycol, methyl glycol or N-methylpyrrolidone.
According to the Federal Register notice, the orders require no manufacture, processing or use of the PMN substances other than for processing and use as a fuel, fuel additive, fuel blending stock or refinery feedstock; use of personal protective equipment where there is a potential for dermal exposure; and establishment of a hazard communication program. Additionally, the proposed SNURs would designate certain activities as significant new uses, including manufacturing PMN substances using feedstocks containing any heavy metals or chemicals noted above.
This SNUR, if promulgated as proposed, could prohibit the manufacturing of all PMN substances, which presumably include some variations of pyrolysis oils or products derived from pyrolysis oils based on the public information available. The proposal is noteworthy for several reasons. First, the new SNUR provisions do not relate to the PMN products, byproducts formed with the PMN substances or impurities in the PMN substances. Instead, the SNUR specifies that PMN substances may not be manufactured from feedstocks that contain a list of specified substances. The EPA does not explain why it views these substances as a potential risk when present in feedstocks.
Second, EPA provides no de minimis level below which the SNUR does not apply. This is problematic for any manufacturer of any PMN substances because a manufacturer will have to document the absolute absence of all the specified substances in all batches of all feedstocks used. Even if a company could test all the feedstock it uses, one can only detect down to an analytic level of detection.
Third, the EPA is departing from its long-standing practice and has proposed regulating existing chemicals (the specified components) as new chemicals. A manufacturer of any of the PMN substances could produce the PMN substances from pristine feedstocks with no problematic byproducts or impurities and subsequently blend any of the specified problematic substances into the product and distribute that mixture for further processing or use.
In past pyrolysis oil cases, the EPA required testing for the presence of dioxin in the products. The agency may have a reason to broaden its concern to other halogens (fluorine, bromine), but the better solution is not to focus on the feedstock but rather the products. Doing so would maintain the commercial prospects for safely repurposing waste plastic to produce waste-derived transportation fuels.