Just days after approving long-awaited SB 54 regulations, CalRecycle is already facing potential legal challenges, and those who have tracked extended producer responsibility (EPR) policy for decades say the battle is only beginning.
The Natural Resources Defense Council (NRDC) and Californians Against Waste (CAW) announced plans to sue over the finalized rules, arguing CalRecycle unlawfully exempted certain plastic packaging from the law’s reduction and recycling requirements and improperly allowed “polluting technologies” to count as recycling.
“These new rules create huge loopholes for plastic packaging that violate the law,” said Avinash Kar, senior director of the NRDC toxics program, in a statement. “We expect to challenge this in court.”
The legal challenge is not unexpected. Heidi Sanborn, executive director of the National Stewardship Action Council (NSAC), told Resource Recycling in an interview the day before the groups’ announced opposition that litigation is an inevitable byproduct of a rulemaking of this scale. Sanborn has worked exclusively on EPR policy since 2003 and has been in the waste and recycling industry for 35 years.
“Litigation is coming, and that’s normal,” Sanborn said. “But because this is such a big rulemaking and there’s so much money at stake, I think it’s going to be more robust. There’s going to be more litigation than we’ve seen in past packages.”
She added that some provisions in the finalized rules were never fully resolved during the rulemaking process and will likely be settled in court, but also said that should not be used as a cover to delay implementation.
“There’s some problems with it that are going to get negotiated basically in court,” Sanborn said. “If you want to challenge something in court, go ahead. Let’s keep moving. Don’t take the pedal off the metal on actual implementation.”
At the center of the complaint is how the finalized regulations handle technologies that break down plastic using heat, solvents, or other processes rather than mechanical means, a category that includes certain forms of chemical recycling.Â
Although SB 54 bars such technologies from counting toward recycling targets when they produce significant quantities of hazardous waste, the finalized regulations put that limit aside and allow the technologies to qualify as recycling based solely on whether they hold a permit, regardless of how much hazardous waste they potentially produce, according to NRDC and CAW.Â
The groups also allege the rules create exemptions for covered products that the law never authorized, effectively allowing some plastic packaging to escape regulation entirely.
Sanborn, who has been vocal about the chemical dimensions of packaging EPR, indicated that the question of what counts as recycling will be one of the most contested pieces of implementation going forward.
“Recycling is about chemicals,” she said. “They’re all chemicals. And if the chemicals are cancer causing and bioaccumulative, I don’t want them in there. That’s not safe for anybody, maybe not even to use.”
Nick Lapis, CAW director of advocacy, added in a statement: “These regulations ignore explicit limits on recycling technologies and create permanent escape hatches the law never authorized. CalRecycle’s original draft regulations were already not strong enough to ensure the systemic change that the public expected from this law, but the agency’s final regulations added even more loopholes to protect the status quo for producers of plastic packaging.”
