California’s extended producer responsibility for packaging law, SB 54, just completed another round of public comment. | Alexander Lukatskiy/Shutterstock
Industry players said the latest draft of California’s extended producer responsibility for packaging permanent regulations is an improvement, but there is always more work to be done when it comes to complex policy implementation.
SB 54, passed in 2022, just came out of a 15-day written comment period on the permanent regulations, which lasted from Oct. 14 through Nov. 3. The California Department of Resources Recycling and Recovery, or CalRecycle, also held a 61-day public comment period in March and a public hearing in April on the draft rules.
On Nov. 4, CalRecycle also opened a 45-day comment period on its draft Program Environmental Impact Report for SB 54.
At an Oct. 25 SB 54 advisory board meeting, CalRecycle told the board that the draft regulations received 2,500 individual comments.
This revised version included some changed definitions, reorganization and an expanded reuse and refill definition section. CalRecycle made some changes that the board suggested in the first round, including better-defined and higher thresholds for material exemptions, closing the standards gap between single-use and reusable packaging because reusable packaging had a higher standard, and adding emphasis on creating a system for reuse and refill.
CalRecycle also added a section for review of certain technologies to decide if they are considered a recycling technology under the act, an inclusion directed toward chemical recycling. It also more clearly defined “desirable organics” and added clarity on how end markets outside of California are evaluated and how people can submit end-market complaints.
The update draft regulations provided more detail on how to apply for exemptions and on corrective action plans and added several formulas, including for covered material recyclability rate and recycling rates and for source reduction credits.
A deadline for producers to register with the department of July 1, 2025, was added, and the time frame to correct errors in submitted data was changed from 10 business days to 14 calendar days.
Industry stakeholders and board weigh in
Kate Bailey, chief policy officer for the Association of Plastic Recyclers, told Resource Recycling this version of the rules is “much improved,” pointing to its clarifications on reimbursement, responsible end markets and chemical recycling. APR owns Resource Recycling, Inc., publisher of Resource Recycling.
The definition for responsible end markets is “now standard across the board for all material to be measured at the same point,” she said, instead of giving plastics different requirements. Distinguishing “market verification” from “market development” is also a positive change between drafts, Bailey said, though “I don’t think you’ll ever hear us say that there could not be more work done there.”
“In particular, anytime someone is getting credit for using recycled content, we are really wanting to see that called out as domestic or North American recycled content,” she said. “Focus on the markets we’re trying to support here on our continent.”
Anja Brandon, director of plastics policy at the Ocean Conservancy, also said the regulations are continuing to move in the right direction.
“We’re really happy and appreciative of all the comments that CalRecycle did take over the course of the last comment period,” she said, highlighting its efforts to streamline the definitions section and adjust the definition of a responsible end market.
The SB 54 advisory board worked over two meetings to draft a letter of recommendations on the new regulations. The board noted in a Nov. 1 meeting that the regulations should clearly spell out that any alternative collection program should coordinate with existing collection programs to reduce consumer confusion. The board also wanted a better definition of “online retailers” and how they would be regulated.
Further, the way the recycling rate is currently described, each material would be calculated based on the total weight of all covered materials. The board suggested that it should be calculated by weight of like covered materials for a more accurate view.
The reuse, organics, technology review and end markets sections generated debate, with board members at times disagreeing about how much should be set in statute and what the role of the legislation should be.
In terms of chemical recycling, Bailey said APR appreciates “the approach to new technology that leaves the door open in a specific fashion,” including a review process.
“It is something that would be nice to discuss in more detail, like how they came up with the panel of experts and some other things, but we appreciate that they included some flexibility here,” she said.
Brandon also said the added review piece was appreciated, but she suggested better integrating the new section with other provisions, such as definitions of recycling in the state and other safeguards elsewhere in the statute. Ocean Conservancy would also like to see CalRecycle have the final say on a new technology, with the peer review panel submitting a recommendation to the agency.
“As the state agency in charge of implementing this, we want to make sure that they are holding the reins here, because they are ultimately who should be held responsible for this,” Brandon said.
Timothy Burroughs, executive director of StopWaste and SB 54 board chair, added during the Oct. 25 meeting that he would like to see an explicit list of costs to be covered by the PRO for local governments, both direct and indirect. Investments made before Jan. 1, 2023, should get partial reimbursement, he added, if they’re capital expense that a government will use for covered materials and is still paying after that date – for example, new collection trucks.
“Just because a capacity investment was made prior to Jan. 1, 2023, does not mean that there are not ongoing costs relating to those investments,” he said.
Board member Veronica Pardo, with the Resource Recovery Coalition of California, warned that the rules and regulations should “be careful to not be too prescriptive” when it comes to reimbursement strategy, as there is a need for flexibility. Shane Buckingham, program planning lead for PRO Circular Action Alliance, agreed that “we do not want to limit ourselves” when it comes to reimbursement mechanisms.
Another of Ocean Conservancy’s top five comments this round was that over-the-counter drugs have been added as an excluded category, which Brandon said was beyond the scope and intent of the statute. And while the reuse and refill section has seen many positive alterations between drafts, Brandon said she would like to see the reuse threshold of 780 cycles removed, as it’s “not supported by any standards or precedent.”
Imposing such a threshold could shoot reuse in the foot before the system has a chance to get started, Brandon added.
APR also has some concerns around the chain of custody tracking, which extends back to the collector when APR believes it should go back to the MRF instead. Bailey said she’s hoping for one further round of revisions, and maybe another workshop, but time is short.
“It’s a lot to absorb in a short amount of time, and it would be nice to be able to have a workshop to talk through some things, some questions about, for example, what is a detachable component,” Bailey said.
With the implementation deadlines approaching, Ocean Conservancy is focused on getting the vital sections shored up, Brandon said.
“We need to focus in on the pieces that are going to make the program work,” she said. “We need to get the foundation right from the jump, so we can launch this program successfully, acknowledging there can and will be updates to the regulations as needed as we go.”