FPA’s Environmental, Health, and Safety Committee Monitors Evolving Federal Regulations

FPA’s Environmental, Health, and Safety Committee Monitors Evolving Federal Regulations

As the voice of the flexible packaging industry, the Flexible Packaging Association (FPA) works with regulators at the U.S. Environmental Protection Agency (EPA), U.S. Occupational Safety and Health Administration (OSHA), and other U.S. regulatory agencies such as the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) to share industry positions and mitigate potential regulatory burdens on flexible packaging manufacturing in the United States.

FPA’s Environmental, Health, and Safety Committee (EHSC) also tracks regulatory developments across these agencies to inform FPA members on upcoming and existing environmental compliance issues and policies. PowerPoint presentations from committee meetings are posted quarterly at flexpack.org/regulations/environmental-regulations. The committee meets in person three times per year, has bimonthly calls, and urges your company to participate. Highlights of EHSC’s recent activities are below.

Submission of FPA Comments to EPA on the National Plastics Strategy

EPA’s National Plastics Strategy follows this past year’s National Recycling Strategy. Despite lauding the value of plastics, particularly flexible plastics, in protecting the nation’s foods and medicines, the EPA draft calls for the reduction of plastics from the supply chain, and it fails to examine the systematic overhaul of community recycling and infusion of capital under the Inflation Reduction Act—“the Climate Act”—and billions of dollars of other environmental and infrastructure funding. FPA’s comments upbraided the agency for its myopic focus, corrected its interpretation of the Oceans Act as a basis for the report, offered advice and assistance, and discussed suggestions for finalizing the draft. The committee intends to meet with Barry Breen, EPA’s acting assistant administrator, and Nena Shaw, program director.

Submission of FPA Comments on the Securities and Exchange Commission’s (SEC’s) Environmental, Social, and Governance (ESG) Regulations/Guidance

The financial community is bracing for the imminent release of SEC’s ESG regulations. The regulations will affect public companies the SEC directly regulates and also private entities, including many FPA members, who are suppliers, as well as banking and loan services. The proposed regulation, issued in late 2021, was concerning in its breadth, complexity, and failure to clearly articulate its goals. The committee’s comments focused on climate emissions reporting, defined by Scope 1 (emissions from manufacturing), Scope 2 (emissions associated with energy usage), and Scope 3 (climate emissions in the supply chain associated with product life cycles), and the respective cost and information burdens for obtaining such information. 

FTC Green Guides

Many of you probably recall FPA’s public participation in shaping FTC’s 2012 Green Guides. Generally, the Green Guides are based on correcting the misperceptions of advertising claims. It was the basis for FTC’s prosecution with EPA of Volkswagen and other car companies. Generally, green marketing claims also are a growing business for class actions and personal injury attorneys. The commission announced its revision to the Green Guides late this past year, and FPA submitted comments and suggestions. FTC leaders also regularly attended annual EHSC summits and meetings in the past. These updated Green Guides were expected to be released by the end of 2023.

Per- and Polyfluoroalkyl (PFAS)

There is significant movement at state and federal levels to ban/regulate the use and reporting of PFAS. PFAS are being examined at the federal level under the Safe Drinking Water Act; Clean Water Act; and Comprehensive Environmental Response, Compensation, and Liability Act. It also is being examined under the Toxic Substances Control Act, Toxics Release Inventory, Superfund Law, and Clean Air Act. There also is multidistrict litigation by water companies in South Carolina against PFAS manufacturers 3M, DuPont, and Chemours, in which a settlement of more than $13 billion is under advisement. The settlements do not include other property or potential personal injuries. In Europe, the European Chemical Agency also addressed and banned PFAS in manufacturing, mixtures, and imports. EHSC is monitoring U.S. regulatory activities closely, in concert with FPA’s overarching active involvement in state PFAS legislation. We anticipate the necessity for significant involvement over the next several years.

Hazardous Air Pollutants (HAPS) Reporting

EPA proposed a rule that would require owners and operators that emit hazardous air pollutants (HAPs) above health-based risk levels (i.e., much lower than the Clean Air Act’s definition of major source as 10 tons per year [TPY] of any one HAP or 25 TPY of a mixture of HAPs) pursuant to which many FPA members are regulated by two sets of National Emission Standards for Hazardous Air Pollutants (NESHAP, also colloquially called “MACT standards”), which FPA negotiated with EPA between 2008 and 2012. These reporting requirements could have significant potential impacts on FPA members, and EHSC submitted comments opposing the rulemaking in November 2023.

HAPS Major MACT to Area Source (MM2A) Reconsideration

EPA is proposing to add requirements for sources that are “reclassified” from “major HAP sources” to “area HAP sources” under the NESHAP program. Several FPA members took advantage of a January 25, 2018, policy—later codified by EPA in 2020—by substituting water-based coatings, inks, and press cleaners for methylene chloride, acetone, and other solvents. Environmental groups sued EPA on the regulation, arguing that the MM2A rule would allow sources to increase their emissions of HAP up to the de minimis level (Communities Against Air Toxics v. EPA, D.C. Cir, which is in abeyance pending reconsideration). EHSC prepared and submitted comments, arguing it is not only bad public policy but fails to recognize material substitution at all, which EPA has touted in numerous other regulatory initiatives.