New York legislators are once again pushing to become the fifth state in the U.S. to implement extended producer responsibility for packaging.
The Packaging Reduction and Recycling Infrastructure Act, AB 5322, and its Senate companion bill, SB 4246, were revived late in last year’s session.
Both bills are still in committees in their houses of origin, AB 5322 in the Assembly Codes committee and SB 4246 in the Senate finance committee. The New York legislature adjourns in early June.
Bill details
The proposal calls for the creation of a packaging reduction and recycling organization, similar to a producer responsibility organization. Producers would be required to join and pay fees into the organization to achieve the goals set out in the law and to reimburse local governments and private companies “for the costs associated with the implementation of reduction, refill and reuse programs, and the collection, transportation and recycling, disposal or other processing of packaging materials.”
If passed, the packaging reduction organization would have two years to develop and submit a packaging reduction and recycling plan and carry out a needs assessment.
A5322 would also form a toxic packaging task force and a packaging reduction and recycling advisory council and require the packaging reduction and recycling organization to provide the option to purchase recycled materials from processors.
The reduction rates laid out in the bill are 10% by unit weight three years after a producer first registers with an organization, 20% five years after, 30% eight years after, 40% 10 years after and 50% 12 years after joining.
The post-consumer recycled content targets are broken down by material type. For all glass containers manufactured in the state, the rate is at least 35% two years after the law becomes effective. For paper carryout bags it’s 40% unless the bag holds 8 pounds or less, in which case the target is 20%.
For all plastic trash bags sold or offered for sale in the state the target is 20% post-consumer recycled content.
Recycling rate targets are different for plastic and non-plastic packaging. For non-plastic packaging, the rates are 35% reused or recycled, with at least 5% of that reused, by 2028. In 2035, the rates jump to 50% reused or recycled with at least 10% reused, and by 2050, the rates are 75% reused or recycled with at least 20% reused.
Plastic packaging must be 25% reused or recycled by 2028, 50% by 2035 and 75% by 2050.
The law covers paper, cardboard, corrugated cardboard, wood, glass, PET, HDPE, expanded polystyrene, polystyrene, bio-plastics, generic plastics, plastic film, steel or ferrous, aluminum, tinplate, generic metals and mixed materials, including laminates.
The fees for those covered materials can be adjusted based on the cost to process the materials, if the material is readily recyclable and the commodity value. The fees are also eco-modulated, so those with more post-consumer recycled material content and those producers that reduce packaging, increase their proportion of packaging managed within a reuse and refill system, improve recyclability, reduce toxic components or reduce litter will receive credits or pay lower fees.
The prohibition on toxic substances and materials would begin two years after the promulgation of rules and regulations and would cover orthophthalates, bisphenols, PFAS, heavy metals and other compounds, including lead, hexavalent chromium, cadmium and mercury, benzophenone and its derivatives, halogenated flame retardants, perchlorate, formaldehyde, toluene, antimony and compounds, carbon black, UV 328, polyvinyl chloride, polystyrene and polycarbonate.
Reactions and concerns
A Beyond Plastics press release called the bill “the most comprehensive packaging reduction legislation in the country.” More than 200 groups signed a letter of support for the legislation, including the Natural Resources Defense Council, New York Public Interest Research Group, the League of Women Voters of New York State, several religious organizations and Surfrider.
“Because packaging will be reduced, reused, or redesigned to be truly recyclable, recycling facilities will no longer be inundated with worthless plastic waste,” the groups said. “New funding will help local governments support effective recycling of metal, paper, cardboard and glass and, most importantly, reuse and refill programs.”
Betsy Bowers, executive director of the EPS Industry Alliance, said she’s concerned about the chemical prohibition section of the bill.
“The chemical review process is already well covered under the federal agencies and under the WHO,” she said, referring to the World Health Organization. “A lot of the regulations and legislation that we see is targeted at single-use plastics, and the FDA has some pretty stringent criteria that has to be met to ensure the safety and so forth.”
Bowers noted that some of those chemicals on the list also appear in other materials, and as she reads it, the bill could also ban paper.
The list also includes “several chemicals you’d expect to see on any list of this type, but it mixes up polymers with chemicals,” Bowers added.
For example, polystyrene is on the list with toluene, which is a chemical used to make polystyrene, and with heavy metals such as cadmium, which is used to make paper, she said. “The way the bill is drafted right now, our interpretation is that a multitude of packaging materials could be restricted.
“We think that EPR is really a crucial policy approach that can really help move us to the next level, an improvement level, but including the chemicals is just really difficult,” she added. “We’re just concerned that it’s a duplicating effort that is going to cost the state of New York a lot of money. It’s not a case of industry not wanting to do its part or take responsibility.”
Bower recommended that the bill “pursue a more traditional EPR path and leave the chemical restrictions” to another time.”
