States Begin to Refocus on Recycling

As states implement varied reopening schedules, some state legislatures started deliberating on legislation beyond COVID-19 and policing issues in recent weeks.  Recycling bills, for example, started moving through the legislative process in three key states: California, New Jersey and Michigan.

In California, SB1238 was passed by the Senate on June 26. As amended, this bill would authorize (rather than mandate) the California Department of Transportation (DOT) to conduct a study to determine the feasibility of using recycled plastic in asphalt for road construction. If the department study demonstrates that including recycled plastics in asphalt is feasible, cost effective and provides life-cycle environmental benefits, the agency can establish specifications to include such paving materials in the construction, maintenance or rehabilitation of highways and roads.

Due to a DOT estimate that the studies would cost in the “low millions” over several years, the agency will have the discretion, if and when, to proceed. Progress reports would be due every year beginning in 2022.

Also in California, Governor Newsom, to the cheers of environmental activists, let expire his April suspension of the state’s single use plastic bag ban.

In Michigan, after years of deliberation on revamping the state’s solid waste management system, House Natural Resources Chairman Rep. Gary Howell (R) orchestrated the introduction of a 6-bill bipartisan legislative package (HB 5812-5817) to do so. Unlike recycling legislation in many states, these bills do not create specific recycling or recycled content mandates, nor do they force a system of extended producer responsibility; rather the intent is to strengthen recycling and other alternatives with a solid waste structure that moves away from dependence on landfills.

With current solid waste recycling rates estimated to be among the lowest in the U.S. at about 15 percent, the bill sets forth a statewide recycling goal of 30 percent by 2025 (interim) and 45 percent (ultimately).  It also reinforces that advanced recycling is a valued alternative and exempts such facilities from regulation as a solid waste facility. While the bills do not target any specific materials such as plastics, they delegate authority to counties to develop materials management plans (MMPs) which could vary significantly and are not restricted from targeting classes of recyclable materials in the future.

The bills provide for increased solid waste fees to fund the revised programs and for the state to provide grants to counties to implement MMPs. Landfill operators and waste haulers have expressed opposition, at least in part, to the increase in fees. The package is “tie-barred” so that no bill becomes effective unless they all are signed into law.

New Jersey Senator Bob Smith (D), Chair of the Senate Environment and Energy Committee, held an internet hearing on his bill S.2515 which would mandate recycled content and recycling rates for certain plastic, glass, and paper products. Under the bill, starting January 1, 2022, all rigid plastic packaging (except for beverage containers) would have to contain either 35 percent recycled content or be made of a plastic that is being recycled at a rate of 35 percent. There are three ways to meet the 35 percent recycling rate:

• If, in the aggregate, all rigid plastic packaging achieves the 35 percent rate;
• If the rigid plastic package is made of a specific resin and rigid plastic packaging of that type of resin is being recycled at the 35 percent rate; or,
• The rigid plastic container is brand-associated and that brand-associated packaging type is being recycled at the 35 percent rate.

The bill provides exemptions for rigid plastic packaging that contains drugs, medical devices, medical food, infant formula, toxic or hazardous products, or that is necessary to provide tamper-resistant seals for public health purposes or is a source reduced package (10 percent reduction from five years earlier).

Critics of S.2515 pointed out that New Jersey does not currently track the recycling rates of rigid plastic packaging and that meeting a 35 percent recycling rate doesn’t seem feasible in such a short period. Environmental groups expressed concern that this bill would take the focus off S.864—a major activist priority and another Smith bill which passed the Senate earlier this year. S.864 bans single use plastic and paper bags, bans polystyrene food service packaging and limits single-use straws.