The Plastics Police Had a Banner Year

Geoff Giordano | Dec 12, 2022

Legislative efforts to curb plastic usage and waste throughout the United States have evolved well beyond mere bag bans to the pursuit of more-involved extended producer responsibility (EPR) strictures.

Witness California’s SB 54, signed into law this summer. Along with its stringent regulation of plastic waste, it stipulates that the plastics industry must pay $5 billion into the system over the next 10 years to support impacted communities and restore ecosystems.

Following on EPR laws passed in Maine and Oregon in 2021 and Colorado and California this year, more states are pursuing their own versions, according to a recent rundown of US plastics legislation on the books or in the works. In an Oct. 19 webinar, “Plastics Recycling Legislative Update,” the Association of Plastic Recyclers (APR), citing information gathered by the Signalfire Group, noted the emergence of EPR measures:

One thing is clear: These laws and rules for their implementation don’t happen overnight, and plastics industry organizations like APR are working hand-in-hand with legislators and NGOs to balance the best interests of the environment and the plastics industry. Industry organizations like APR and the American Chemistry Council (ACC) are closely monitoring and working with lawmakers and other stakeholders to shape sound plastics packaging and waste legislation. Close involvement in the complex rule-making phases of implementation is front and center from coast to coast in 2023.

As Bruce Magnani noted in APR’s Oct. 19 webinar, his overview offered “just a small snapshot” of the more than 70 plastics-related bills APR tracks in California alone. Magnani, Vice President and partner at Houston Magnani and Associates, is APR’s legislative representative in California. He noted that there is plenty of jockeying by groups to be named by CalRecycle as California’s Producer Responsibility Organization (PRO). CalRecycle is California’s Department of Resources, Recycling, and Recovery, charged with bringing together the state’s recycling and waste-management programs. “The landscape is very fluid right now as far as who will apply to be” California’s PRO," Magnani noted. "Ultimately, SB 54 is a law that, while stringent, is one “we want to succeed.”

While California’s SB 54 got the nation’s attention and proceeds through its implementation timeline, Magnani noted that the measure was hardly alone. Notable attempts to regulate plastics in the state include:

But the granddaddy of them all is SB 54, which affects all packaging — primary, secondary, and tertiary. CalRecycle is putting together a list of what is recyclable or can be labeled as such. The list, based on SB 343 and AB 1201 definitions, is due by January 2023 and will “have a large impact on SB 54 regulations.”

“The rumor we’ve heard there is that CalRecycle will survey the largest MRFs in California . . . and use that data to make determinations as to whether or not material types and forms meet the designation required under the law to be labeled recyclable,” Magnani said. “APR will be paying close attention to all the work that CalRecycle does in this space. CalRecycle has made it clear it is not working on SB 54 regulations until after the New Year begins — and it will have quite a sprint for that first year of looking at applications (for) who will be the PRO and making a determination of who is best situated to take on that role. It’s going to be a very important role. CalRecycle will also be staffing up internally because it will have a lot of responsibility moving forward in getting that in place. I think we all want to see SB 54 succeed.”

Running close behind California’s SB 54 as a model for other states are the Washington state Recycling, Waste and Litter Reduction Law (SB 5022) and Oregon’s Recycling Modernization Act (SB 582).

Passed in 2021, Washington’s SB 5022 requires a multitude of compliance targets, explained APR Program Director Kate Eagles. Those rules include:

Rule-making by the state Department of Ecology is underway, Adams said, and will include terms and definitions; how producer fees are established, based on “workload analysis” of the department’s cost to administer; how to certify/audit PCR content compliance; and the technical feasibility of PCR requirements.

“This is an ambitious law,” Adams said, noting that APR sits on the Rulemaking Advisory Committee, which has held seven meetings. All affected producers should be registered, she added; about 275 have done so.

Fees owed by producers will cover administration and oversight of the program, Adams explained. Producers will pay prorated fees based on the amount of resin in the marketplace in the covered categories. Covered categories will be phased in by effective dates.

Comment on the final draft of the post-consumer recycled content rule lasted through Nov. 1. APR’s commentary focused primarily on the scope of category definitions (e.g., what is a bottle or a container).“This is a biggie for us,” she noted, “and I think Ecology is looking at how they are going to do this, and what that’s going to mean. We are trying to work with Ecology on reasonable ways to certify this. If you can’t certify content as post-consumer, you have some credibility issues with the program — and we don’t want that to happen if they’re going to run this aggressive program that needs to be credible. Folks need to believe that content really is going into those packages, and the playing field should be level.”

Then there is Oregon’s Recycling Modernization Act, part of which requires the Oregon Environmental Quality Commission (DEQ) to identify by rule two lists of materials:

Those two lists are being developed. APR was part of a technical working group to assist the DEQ in its analysis.

The law was signed in August 2021, and since then the technical working group and rule-making advisory committee were quite active, the latter with scheduled meetings through February 2023. Rules are to be considered around September 2023. Four areas of plastics are the focus:

On Dec. 1, the Protecting Communities from Plastics Act was introduced by US Sen. Cory Booker (D-N.J.) and Rep. Jared Huffman (D-CA-2nd), together with US Sen. Jeff Merkley (D-OR) and Rep. Alan Lowenthal (D-CA-47th).

The PCPA “would directly tackle the plastic pollution crisis by cracking down on the plastic production process, building on key provisions from the Break Free from Plastic Pollution Act to address the harmful environmental justice impacts of this growing sector, and moving our economy away from an overreliance on single-use plastic,” according to a press release. “It establishes stricter rules for petrochemical plants to safeguard the health of American communities and reduce greenhouse-gas emissions fueling the climate crisis. The bill would also begin to shift the US economy away from its dependence on certain single-use plastics, creating new nationwide targets for plastic source reduction and reuse in the packaging and food-service sectors. These targets are paired with federal incentives to spur expansion of reusable and refillable systems, with an emphasis on ensuring benefits are realized in environmental justice communities.”

According to the ACC, the PCPA would “cripple” US plastics manufacturing.

“Plastic products are essential to a lower carbon and more sustainable future: Wind turbines, solar panels, lightweight EVs, food packaging that prevents waste, building insulation, and pipes for clean water are just a few of them,” said Joshua Baca, ACC Vice President of Plastics. “We urgently need more of these products to address climate change.” The PCPA “is a raw deal for America that would stall the acceleration of a circular economy for plastics currently underway. American jobs would be lost, billions of dollars of investments in new technology would be jeopardized, and the climate crisis would worsen as a switch to materials with a higher carbon footprint ensues.”

The ACC has asked Congress to:

Meanwhile, APR’s federal affairs team works with key agencies on rule-making and policy development, explained Anna Karakitsos, a principal with Bracewell’s Policy Resolution Group and APR’s federal legislative representative. She noted that APR recently advised:

Meanwhile, Karakitsos continued, the Department of Interior Secretary’s Order 3407 issued June 8 aims to reduce procurement, sale, and distribution of single-use plastic products and packaging, with a goal of phasing out single-use plastic products on department-managed lands by 2032. This includes plastic, polystyrene food and beverage containers, bottles, straws, cups, cutlery, and disposable plastic bags designed for or intended to be used once and discarded. APR engaged with DOI staff as they develop a proposal to implement the order.

Prior to the midterm elections, APR worked with Congress as a technical resource regarding:

With the California EPR law top of mind, Magnani pointed to SB 54 as perhaps a blueprint of how the plastics industry can earn wins.

“There will be opportunities within SB 54,” he asserted. “There are some segments that would allow you to get out from underneath the requirements within the statute, and back of house I think is one of those places. So, any films or flexibles that don’t reach the curb and are not part of the curbside program -- OCC for fiber would be one of these (as would) film flexible wraps, pellet wraps, PP buckets, things where you’re shipping business to business. These are all things that could potentially meet very high recycling rates, be a very clean source of material and find a way to avoid some of the malice fees and be considered highly favorable for the recycling stream moving forward. There are great opportunities within SB 54; it shouldn’t all be viewed as a hurdle or a difficulty.”

Speaking specifically to California-based operations, he offered advice applicable to all plastics industry players, namely:

For 2023, he expects other potential targets of NGOs/ENGOs to include bans or limits on:

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