Recent Recycling Legislation in Several States Includes Aggressive New Approaches that Protect Local Decision Making

Date: 17 Jun 2021 | posted in: waste - recycling, waste - zero waste, Waste to Wealth | 0 Facebooktwitterredditmail

The following is a round-up of recycling legislation in Maine, Colorado, Washington, and other states that have recently considered innovative new legislative approaches to recycling.

Maine Passes EPR Bill that May Frustrate Lobbying for Producer Control Extended Producer Responsibility

As reported in the Washington Post, lobbyists from the packaging industry and supporting non-profit and environmental organizations want EPR to be a Polluter Controls Policy, when in fact EPR was introduced decades ago as a Polluter Pays policy. The Fortune 500 companies behind the rush to pass EPR laws at the state and national levels want their decisions to ‘have the force of law’.

Those skeptical of this transformation of the intent of EPR policy oppose the elimination of local control over recycling and the right for citizens to vote on local decisions in favor of decisions made by Fortune 500 corporations. They disagree with the notion put forward by the EPR control forces that cities do not know how to recycle nor do they have the funds to do so.

Opponents of Polluter Control EPR point to the effectiveness of grass roots and municipal recycling from 1970-2000 when post consumer recycling rose from less than 5% to 35%; only to stagnate and retreat to 32% recycling under the control of Big Waste’s single stream recycling and the resulting fiasco after China declined to take loads with 20-40%.

The Maine EPR law may be a victory for municipal reimbursement EPR and a defeat for the packaging industry. Is it harbinger of what will happen with the federal Break Free From Plastic Bill?

EPR reimbursement laws charge producers for the cost of handling their products and packages. These funds are distributed to local governments to maintain and expand their own programs.

In 2020, the California Legislature defeated a good recycling bill with EPR because legislators feared turning power over to corporations. The same may have happened in Washington where a minimum content bill was just approved with EPR clauses removed.

Kristine Kubat, Recycle Hawaii, has concerns about Maine’s take on EPR, however. The law describes alternative collection programs. The bill allows for incineration and allows producers to offset or completely avoid their obligation under the state program by coming up with an alternative collection plan that could incinerate packaging. There is language to safeguard against this and there is a means for the state to terminate producer-run programs that only incinerate materials but it all boils down to whether or not the materials being incinerated are “readily recyclable.”

Kubat wrote, “I don’t see the state of Maine being able to stop producers from designing and using packaging that cannot be readily recycled in order to feed incineration schemes they cooked up with WTE providers who are contracting with them to obtain fuel.”

Thus the Maine law highlights municipal reimbursement but the outcome of the law is not clear; as it entertains ‘loopholes’ that may frustrate skeptics fear of Fortune 500 corporate control over recycling in that state.

The packaging dilemma in the state is quite real.

Packaging is estimated to account for 40 percent of the municipal waste stream. The Maine Department of Environmental Protection estimates that it can cost 67 percent more to recycle than dispose of packaging. Taxpayers pay at least $16 million annually to manage packaging material through recycling or disposal — costs they have no control over.

One legislator, Rep. Nicole Grohoski (D-Ellsworth), the bill’s Democratic sponsor, stated, “It’s good that the bottom fell out,” referring to China’s refusal to take US single stream materials. “We have to face this problem and use our own ingenuity to solve it… (Not) shipping products halfway around the world to China.”

The bill is opposed by the packaging industry. They raised concerns about the logistics retailers may face policing the new policies and the potential for food costs to rise for consumers who are just emerging from the pandemic. They cite a study from Toronto’s York University, which analyzed New York’s EPR bill and estimated an additional $36 to $57 per month in grocery costs for the average family of four. EPR advocates contest those findings, saying there is little evidence of significant costs ending up with consumers in other countries.


Colorado bill banning plastic bags and foam containers, repealing preemption, heads to governor

Waste Dive reports (June 11, 2021) that Colorado has reversed the state’s policy of preempting local governments from imposing packaging restrictions.

“Colorado would the first state to reverse preemption, environmental groups say, which is notable during a time when nearly 20 states have preemption laws on the books, and several of those states, such as Arkansas and Ohio, enacted those laws within the past year.’

The bill also bans single-use plastic bags and expanded polystyrene foam (EPS) takeout containers starting in 2024. Customers will have to pay 10 cents per paper or plastic bag beginning in 2023 until the ban goes into effect, but retailers will continue charging for paper bags after that date.

“A number of key compromises helped the bill to pass both the House of Representatives and Senate this year, she said. Rep. Lisa Cutter said she is pleased the final bill version ends preemption in the state. Some constituents, especially in Colorado’s smaller mountain towns with less access to recycling infrastructure, told her they wanted to be able to do more to prevent plastic pollution through local packaging bans.

Cutter originally agreed to strike the preemption repeal because retailers told her they worried the change in the law would hurt their budgets as they continued to recover from the pandemic. “It’s been a hard year for small businesses,” she said. The Senate later put the measure back in.

“Several cities and towns already have bag ban or other plastic packaging restriction ordinances despite the state’s preemption, and Cutter said lawmakers drew inspiration from Denver’s bag ban when creating the bill. Voters in Fort Collins voted in favor of banning plastic bags starting in May 2022.”

Read the full story here. 


Minimum recycled content bill signed by Washington Governor Inslee

According to a trade journal report, the threat of producer controlled Extended Producer Responsibility has been rejected in Washington State as it was in California in 2020. The legislation originally called for a corporate controlled extended producer responsibility (EPR) model as a framework for achieving minimum content goals and reaching a higher recycling rate. Producers would fund and operate the EPR program.

See the full article here, Waste Dive April 19, 2021, Updated May 18, 2021

The original bill failed to gain support due to criticism that it gave too much control to packaging producers. “It gave the people who created the problem all the control,” said Brad Lovaas, director of the Washington Refuse and Recycling Association.

Pam Clough of Environment Washington offers an alternative explanation than that in the press report. “It wasn’t that the original version of SB 5022 failed to gain support, but rather that it was simplified due to the complexities of the 2020 legislative session being held 100% virtually.”

Indeed, the state legislative session was a complicated one with it being held 100% virtually due to COVID. There was a lot of concern at the outset of the legislative session about legislators’ bandwidth given the virtual session.  Legislators were also asked to limit the number of bills they introduced for the 2021 session. The bill changed at an early point in session and there was never a vote.  So there was never a rejection. The minimum content bill is a separate bill.

We can expect to hear more on the development of EPR legislation in Washington State as officials, environmental organizations and stakeholders in recycling and Zero Waste work toward finding the proper balance between local decision-making and the packaging industry within an EPR structure.

In Washington State, Colorado and California, producer control EPR is seen by some as a way to increase recycling rapidly as state and government agencies and officials are often overwhelmed by industry interests, among other shortcomings. Further, rural areas lack sufficient citizen activist to impact local efforts to increase recycling, composting and reuse programs.

SB 5022 did start out with a producer responsibility feature, but that section was removed through the course of the legislative session. The major components of SB 5022 that passed in the final version were always part of the bill.

The dynamics of SB 5022 combined multiple policies around plastic reduction and recycling, including producer responsibility as well as some other policies that nearly passed in the 2020 session like the foam ban, the food ware opt-in, and the recycled content policy.  Even though the producer responsibility piece didn’t pass this session, the bill sponsor, Senator Das intends to re-introduce the producer responsibility piece of the bill next session.

As in California, EPR appears to be a poison pill for progressive recycling legislation. This may be the fate of EPR in the federal Break Free From Plastic Bill as well.

An ad hoc network of national, regional and local environmental groups and businesses have been suggesting a similar transformation of the federal Break Free from Plastic Bill as we have seen in Washington State. ILSR has proposed that the federal bill should eliminate the EPR sections and move forward with the remaining provisions of the bill, which are essential for moving the country toward higher levels of recycling and to Zero Waste (90% or more diversion fro the waste stream). 1

The new law established by SB 5022 sponsored by Senator Mona Das has no EPR elements. Rather, it focused on minimum content and plastic product bans. Under SB 5022, beverage manufacturers will be required to include more post-consumer recycled plastic in products over time, starting with 15% recycled content by weight by 2023 and ramping up to 50% by 2031. This will apply to most beverages in containers that hold between two ounces and a gallon, except for dairy milk and plastic 187 ml wine containers, which must reach 50% recycled content by 2036. It will exempt items like infant formula and medical products. Manufacturers of plastic trash bags will have to meet a 10% recycled content benchmark by 2023 and eventually use 20% by 2027. Household and personal care products will have to have 15% minimum recycled content by 2025 and 50% by 2031.

The approach taken by the Das’ follows several other state and national bills that see required minimum recycled content requirements as a tool to make packaging more sustainable and improve markets for recycled material.

The bill has drawn support from local environmental groups, which rallied behind a similar bill in 2020. Gov. Inslee vetoed that bill last year, citing concerns over cost and timing of enacting new recycled content standards during the COVID-19 pandemic.

Other supporters include haulers such as the Washington Refuse and Recycling Association (WRRA) and Waste Management. “We believe the recycled content provisions help strengthen markets for recycling plastics,” said John Chelminiak, senior manager of public sector solutions for Waste Management.

Several participants at the recent Plastics Recycling Conference said state minimum-content standards can help drive specific local markets for particular recycled materials and can help achieve higher recycling rates when paired with other recycling methods, like extended producer responsibility programs.

One such bill that stalled in the New York state legislature would establish an EPR program for packaging and would require producers to meet certain state minimum post-consumer recycled content rates for their products.

Last year, California passed the country’s first minimum recycled content law for plastic beverage containers, starting with a minimum of 15% by 2022. This year, lawmakers in the state have introduced another bill, AB 478, which would set minimum recycled content requirements for plastic thermoform food containers starting at 10% and eventually reaching 30%.

Other analysts view federal minimum content standards as easier to administer and easier for companies to comply with than rolling out similar laws from state to state. The Break Free From Plastic Pollution Act, for example, calls for 65% reused or recycled content minimums for many types of packaging by 2027 and 75% recycling rates for beverage containers and paper by the same time. The CLEAN Future Act, meant to achieve net zero greenhouse gas emissions by 2050 through numerous measures, also includes measures to establish post-consumer recycled content standards for certain products.

Das’ bill also bans the sale and distribution of EPS packing peanuts beginning in June 2023. Sale of most portable EPS coolers and food service products will be prohibited beginning in June 2024, but the ban does not apply to items like foam meat trays. Das introduced a similar EPS ban bill in 2020, which passed the Senate but didn’t make it out of the House.

Other states have recently enacted EPS packaging bans, most recently Virginia, which in March signed into law a ban on EPS packaging for food service items like clamshell takeout containers.

The Washington bill will also requires that food service businesses provide plastic utensils, straws, condiment packaging and cup lids only upon request starting in 2022. Some items, like hot beverage lids and items provided through a drive-through window or delivery service are not part of the law.



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Neil Seldman

Neil Seldman, Ph.D, directs the Waste to Wealth Initiative. He specializes in helping cities and businesses recover increasing amounts of materials from the waste stream and add value to the local economy through new processing and manufacturing facilities. He is a co-founder of the Institute for Local Self-Reliance.