In March, California Gov. Gavin Newsom rejected SB 54 draft regulations, forcing the rulemaking process to restart. | Brandon Bourdages/Shutterstock
The first public opportunity to comment on California’s latest extended producer responsibility for packaging draft regulations stretched past the allotted time frame, with some speakers saying changes to a chemical recycling regulation section were unlawful.
At the start of the workshop, California Department of Resources Recycling and Recovery Director Zoe Heller said the draft “is our attempt to be responsive to the governor’s directive to reduce costs for Californians and small businesses.” In March, Gov. Gavin Newsom declined to accept the draft regulations that CalRecycle submitted, forcing the rulemaking process to restart.
The May 27 informal workshop on the draft regulations ended a half-hour past the planned time, and even that extension left comments unheard. Those who got the chance to speak commonly expressed anger and frustration about changes to the section on chemical recycling and hazardous waste, along with an expansion of product exemption possibilities.
In a statement from original law author State Sen. Ben Allen, read by the senator’s legislative director, Tina Andolina, Allen said some of the changes in the latest draft go against the statute and are therefore illegal.
“Nothing in SB 54 gives CalRecycle the authority to renegotiate this aspect of the law,” Andolina read.
Allen also highlighted that the bill was bipartisan and the final text was crafted with wide industry support, and warned CalRecycle against changes outside of the scope of the law. Several days before the hearing, Allen had released a statement noting that while he appreciates “the Department’s diligent work to address the various issues stakeholders raised with the previous set of SB 54 regulations,” he has concerns with “several provisions that appear to conflict with law.”
“Notably, it appears the proposed draft regulations exempt certain products that are clearly in the program’s scope,” he said. “We also worry the draft regulations are now written to allow producers to use polluting technologies in violation of the law. Getting these provisions right continues to be a top priority for us as we continue to engage in this process.”
Karen Kayfetz, CalRecycle branch chief for the product stewardship branch, said the expanded exclusions were “inadvertent” and would be addressed in later drafts.
Chemical recycling changes
In the latest draft, the requirement for new and emerging technologies to be tested was moved into the responsible end market identification section, and the onus was placed on the requesting facility to prove that a new technology meets the requirements.
Speakers pointed to the section starting on page 91 that noted that “the production of hazardous waste that is handled and disposed of in substantial compliance with an applicable permit does not present a substantial risk of harm to public health or to contamination of the environment.”
There was also concern around the paragraph that stated that a “facility’s use of a technology that is not a mechanical recycling technology in use within the State as of the effective date of the Act shall not be considered recycling unless the facility operates in a manner consistent with ISO 59014:2024,” with speakers saying the ISO standards are not enough of a backstop.
Nick Lapis, Californians Against Waste director of advocacy, said the section on chemical recycling had “strayed the furthest from the statute” and warned that, as it’s written now, “this will end up in court.”
Miho Ligare, plastic pollution policy manager for the Surfrider Foundation, emphasized that “what is currently in the regulation is outside the law.” Ligare is also a member of the SB 54 advisory board but said she was not speaking from that role.
Jenn Engstrom, state director of the California Public Interest Research Group, said that “we really want California to be a leader in protecting our communities,” and the changes to the regulations didn’t support that goal. Monica Wilson, associate director of the Global Alliance for Incinerator Alternatives’ U.S. office, added that “the way the regulation has been redrafted will expose Californians to hazardous waste.”
Kayfetz noted that the changes were part of a larger language cleanup CalRecycle did to ensure it did not run afoul of a nonduplication mandate – if parts of the rule language perform the same function as existing law, the Office of Administrative Law may reject the draft regulations and require the duplicated sections to be streamlined.
“I encourage you not to read too much into some of the administrative cleanup we’re doing,” she said, as it was not meant to change the meaning or purpose of the section. She noted that any emerging technology would have to meet the definition of recycling in addition to the criteria in that section, “which would inherently exclude” some of the technologies speakers were worried about.
Eroding support?
Several speakers noted that their organizations supported SB 54 as it was written but have mixed feelings about the latest draft version. A representative from the Glass Packaging Institute explained that the organization was neutral on SB 54 when it passed, but if the organization knew then “what it would be today,” GPI likely would have opposed it.
Similarly, Thomas Helme with environmental justice group Valley Improvement Projects suggested that environmental groups would not have agreed to abandon the more stringent ballot measure in support of SB 54 “if we knew this language would be in here” on chemical recycling, calling it one of his biggest fears.
Helme is also a member of the SB 54 advisory board but also said he was not speaking from that role.
Comments on other aspects
In addition to the outpouring of comments on the exclusions and chemical recycling, several people applauded the simplified section on reuse and refill, and several industry groups, such as Ameripen, the California Retailer’s Association and the Consumer Technology Association, said they appreciate the changes and would submit more detailed comments in writing.
Representatives from local jurisdictions asked for more clarity on what happens if they are found out of compliance and the steps to regain compliance.
In response to a query by Beyond Plastics about enforcement of the EPS ban that is part of SB 54, Kayfetz noted that enforcement is happening, even if it’s not obvious from the outside, and that CalRecycle is in the process of launching an online portal for people to submit ban violation reports.