Packaging EPR bill in New York revived as session winds down

This story has been updated.

Some New York legislators are pushing to see extended producer responsibility for packaging pass this year. With days left in the session, they’ve reintroduced what they see as a compromise bill.

AB 5322, mirroring its Senate companion bill, SB 4246, includes a number of changes from earlier proposals, sponsoring Senator Pete Harckham, a Democrat, said in a June 5 press conference.

Notably, it mandates one producer responsibility organization (PRO) for the first decade before opening up the possibility of allowing multiple PROs, it ensures protections for existing waste management contracts and it gives the legislature the ability to adjust the definition of recycling every three years, following complaints about the exclusion of chemical recycling.

“As the technology changes and the material changes we all want to be open minded on this,” Harckham said about the definition of recycling, adding that “I don’t think anyone will ever be happy with this on either side of the bill.”

The amended bill creates a task force to provide guidance on which chemicals should be added to the banned list. It would also enact a five-year look-back period on packaging reduction requirements, so companies get credit for work they have already done.

Harckham said he and the sponsor of the Assembly bill, Rep. Deborah Glick, a Democrat, have been working hard to hear and respond to many concerns regarding the EPR bills.

Glick added at the press conference that “we have heard people” and “we have made accommodations.”

“We believe in shared responsibility,” she said. “This should not be just the responsibility of the municipality. Our friends in industry need to take some responsibility for the waste they generate in our homes. I don’t think this is a radical notion.”

Harckham noted at the June 5 press conference that “we have three and a half days left at this point, but that is an eternity in legislative time.”

The bill ultimately did not advance before the end of the session.

Responses to the compromise

At the same press conference, Judith Enck, founder of Beyond Plastics, said she loved the bill, calling it a “very reasonable transition” that businesses can embrace and plan for.

In a letter, the New York City Comptroller Brad Lander also supported the updated bill, saying it would “lower the financial burdens New York City taxpayers face for exporting waste while mitigating the hazards plastics pose to human health and the environment.”

“Furthermore, I urge you to exclude chemical ‘recycling’ either as amendments to these bills or in separate legislation,” Lander wrote. “Chemical treatment of plastic waste cannot legitimately be considered recycling given that it is a highly polluting form of disposal. The solution to our plastic crisis is to lower production rather than to rely on chemical destruction after the fact.”

Several large packaging producers and the American Chemistry Council (ACC) opposed the bill.

ACC said in an emailed statement that while it supports “a well-crafted EPR in New York because it can unlock necessary financing to improve recycling collection, sortation and processing for all materials,” this version is “counterproductive and would increase the use of materials which increase carbon emissions in critical applications.”

In a letter to the legislature, a group of nearly 80 companies and organizations, including ACC, said they were concerned about the amount of time left in the session to debate the amended bill.

The group also expressed concerns about the exclusion of materials based on the presence of toxic substances and chemicals, the exclusion of chemical recycling in the definition of recycling and “overly aggressive and unworkable mandates and timelines.”

Signatories of the letter included AmSty, Berry Global, Braskem, The Business Council of New York State, the Consumer Technology Association, the Plastics Industry Association and Sabic.

Abby Sztein, senior director of government affairs at the American Forest & Paper Association (AF&PA) opposed the bill, saying in a statement that while AF&PA is encouraged to see policymakers focus on improving recycling infrastructure, “we are opposed to rushed, one-size-fits-all policies.”

Sztein said the bills “do not reflect the complexities of the state’s recycling system and could impact the long-term success of highly recycled materials, like paper” and suggested a statewide needs assessment instead.

American Beverage also opposed the bills. In an statement, it noted the legislation “deviates from the principles of well-designed EPR policy,” with specific concerns about bans of non-recyclable packaging that could have a “disproportionate impact on low-income consumers,” the state assessment of fees and that the bills do not “take into account the proactive measures taken by the beverage industry to reduce packaging.”

“New York State’s beverage companies have been working closely with lawmakers and environmental groups for more than three years to implement a best-in-class EPR system – one that is funded by producers and designed to create a circular economy for all recyclable materials,” the statement noted, adding that the two amended bills will not reach that goal and “beverage companies are eager to continue to work with lawmakers on proven ways that have worked elsewhere to improve recycling of all materials.”

A key definition

The amended bill defines “recycled” as “the use of discarded packaging materials or products in the production of a new product or packaging in place of virgin materials” and “recycling” as “to separate, dismantle or process materials, components or commodities contained in discards for use or reuse in new products or components.”

The definition of recycling excludes energy recovery or energy generation by any means, including combustion, incineration, pyrolysis, gasification, solvolysis or waste-to-fuel, any chemical conversion process and landfill disposal.

Covered materials included, at a minimum, paper, cardboard, wood, glass, PET, HDPE, PS, bioplastics, plastic films, “other plastics,” steel, aluminum, tinplate, other metals and mixed materials.

Setting targets

The bill also contains reduction, recycled content and recycling rate targets.

On the reduction side, the targets are a 10% reduction in packaging three years after the bill is effective, 20% five years after, 30% eight years after, 40% 10 years after and 50% 12 years after.

Those reductions are measured by a baseline of the total amount of packaging the producer used during the first year of the program. However, if a producer can prove that, beginning five years prior to the effective date, it reduced the amount of packaging it used, it can apply for a waiver with respect to that percentage of its packaging.

For recycled content, beginning two years after the effective date, glass containers manufactured in the state need to contain an average of 35% post-consumer recycled content, paper carryout bags 40% post-consumer recycled content, and plastic trash bags 20% post-consumer recycled content.

However, paper carryout bags that hold eight pounds or less would only need to contain 20% post-consumer recycled content and none of those requirements apply to reusable or refillable packaging or containers.

Recycling rates for non-plastic packaging are a minimum of 35%, with at least 5% being reused, by Jan. 1, 2028; 50% with at least 10% being reused by Jan. 1, 2035; and 75% with at least 20% being reused by Jan. 1 2050.

For plastic packaging, the rates are a minimum of 25% recycled content by Jan. 1, 2028; 50% by Jan. 1, 2035 and 75% by Jan. 1, 2050.

Expectations of brands and the PRO

The bill gives the producer responsibility organization one year to conduct a needs assessment and an additional year after that to develop and submit a packaging reduction and recycling plan. The plan will cover five years and be updated every five years.

The fees levied on producers would cover the total costs of providing curbside collection or another form of residential service to state residents, the costs of processing and recycling, the costs of administration of the bill to the state and the cost of establishing packaging reduction and reuse infrastructure.

Fees would also be eco-modulated based on the recyclability of packaging and inclusion of recycled content. Eco-modulating means lowering the fees on packaging if brands use eco-friendly options, such as more-recyclable design or more-recyclable materials. It also means raising fees for brands that make less eco-friendly packaging choices.

If passed, the bill would establish a packaging reduction and recycling advisory council of thirteen members, a toxic packaging task force of seven members to review the toxicity in packaging and recommend additional toxic substances to add to the banned list and the office of recycling inspector general, which will evaluate the programs.

This story was updated with the status of the bill after the end of the 2023 legislative session.

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