The rulemaking for extended producer responsibility law SB 54 was set back earlier in the month when Gov. Gavin Newsom sent the California Department of Resources Recycling and Recovery back to the drawing board. | Susanne Pommer/Shutterstock
A late March advisory board meeting brought dozens of public comments but little additional detail on a new timeline for California’s extended producer responsibility rulemaking.
The rulemaking for SB 54 was set back earlier in the month when Gov. Gavin Newsom ordered the California Department of Resources Recycling and Recovery to go back to the drawing board, citing concerns about cost burdens on businesses and consumers.
The ensuing reactions – many of them upset – spilled into the March 21 meeting of the SB 54 advisory board, with hours of public and board comment on how vital it is to both move the legislation forward and to get it right.
Board chair Tim Burroughs, executive director of StopWaste, emphasized that the “rates and dates” in the law have not changed – which means CalRecycle and the board now have less time to meet the same deadlines.
“It’s unexpected to be diving back into the regulatory process, but we’re not starting from scratch,” he said, as the board has already been through the process once and has the rejected draft to work off of.
“Now is a critical moment,” he added, and it’s “in nobody’s interest to delay this process any longer.”
Marcus Santillano, program manager of CalRecycle’s packaging EPR section gave an update, noting that the agency is working to initiate a new formal rulemaking process.
“While I can’t give updates on the current timeline for when it will begin, those conversations are happening as we speak,” he said, and they will follow the same steps as the previous rulemaking.
“Our goal is to help kick off a successful implementation of this program,” he said. “It’s important to note that the work has not stopped.”
The next deadline in statute is to have a material characterization study finished in July, he added.
The board decided to focus on affordability, hard-to-recycle materials, reuse/refill/durability standards, the EPS ban implementation and foodware processing in the coming months. April’s meeting will feature board work on affordability and operational implementation issues.
Public and board ‘share frustrations’
A common refrain among commentators was frustration, disappointment and questions about what exactly the governor wanted changed in the new draft. At different points at the meeting, multiple board members noted they needed to “calm themselves down” over the topic.
Board member Wes Carter, president of Atlantic Packaging, noted it would be difficult to be effective in the second round of rulemaking without specifics on “what, in particular, they are concerned about.”
Burroughs said he would try to get a representative from the governor’s office to attend a meeting or provide more specifics.
In addition, Burroughs noted that the governor didn’t touch on “the cost burdens ratepayers are already paying” to keep the current solid waste management system running, which “is struggling to keep up with the ever increasing volume and complexity of plastic packaging.”
Tedd Ward, director of Del Norte Solid Waste Management Authority and board member, emphasized that SB 54 was “passed in exchange for pulling back a ballot initiative that would have charged 1 penny per single use package.”
“That’s the affordability we’re talking about,” he said, calling the governor’s explanation “a bad joke.”
Producer and packaging representatives voiced support for the delay, with nonvoting board member Rachel Michelin, president and CEO of the California Retailers Association, saying “candidly, I appreciate what the governor did.”
Erin Raden, senior director of state affairs at the Consumer Brands Association, said brands are “committed to the success of an EPR program in California that improves the circularity of materials within the state, reducing pollution and increasing recycling.”
“The regulations as previously drafted were not capable of realizing those goals,” she said, noting concerns about conflicts with other laws such as SB 343, “punitively high barriers to entry to any non-mechanical recycling technology” and a lack of clarity on producer obligations for some materials.
She said the restart of the regulatory process was a valuable opportunity to “improve impediments to the program’s success.”
Similarly, Walter Reiter, director of advocacy for the EPS Industry Alliance, said to “stay really encouraged.”
“This is an extremely difficult challenge that’s being taken on,” he said, urging people to look to successes in Canada and Oregon.
Michelin also noted that though she tries to get others in her sector to come to meetings, businesspeople “did not feel comfortable coming to this advisory committee and giving comments because they felt like their comments weren’t going to be taken seriously. “
“That’s some of the feelings they were getting from some of the members of the advisory committee,” she said, adding that it can sometimes be “hostile.”
She asked for a code of conduct to be developed, so “that we have some ground rules on what we can and cannot say” and for people to “stop with these threats” of a resumed ballot initiative and to work together to move forward instead.
“We need to be respectful of each other, and some of the things being said I just don’t think are appropriate to be said in a public venue like this,” she said.
Burroughs disagreed, noting that there have been “strong opinions, but I have not personally heard a significant lack of respect.”
“It’s definitely something we have to keep vigilant about,” he added.