Tag: Recycling

CalRecycle Seeks Stakeholder Feedback on Single-Use Packaging EPR Program

Tomorrow, February 1, the California Department of Resources Recycling and Recovery (CalRecycle) will host a hybrid question and answer session to discuss the draft rulemaking on their extended producer responsibility (EPR) program, as discussed below. A 45-day public comment period will follow. Members of the regulated community who wish to attend can find in-person and virtual information on the session here.

Members of B&D’s Plastics and Packaging team will attend the public meeting and will be prepared to answer any questions clients and contacts may have. A more substantive update on what to expect from CalRecycle and the rulemaking process is forthcoming.

Background

In June 2022, the California legislature passed a transformational law creating an EPR program with ambitious goals to ensure 100% of single-use packaging and plastic food ware is recyclable or compostable by 2032. The law creates responsibility for producers, typically manufacturers that are brand owners (although it applies to others as well), to join a producer responsibility organization (PRO) that will develop a plan to implement the law, including raising $5 billion from industry members over 10 years. CalRecycle has selected the Circular Action Alliance (CAA) as the PRO and is developing regulations to implement the law.

Companies potentially impacted by the SB 54 regulations should monitor the rulemaking process and prepare to submit comments within the upcoming 45-day public comment period. To receive periodic updates on CalRecycle’s implementation of SB 54, subscribe to the Agency’s SB 54 listserv here.

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For more news on California’s Recycling Program, visit the NLR Environmental, Energy & Resources section.

Zero Waste Act Introduced By U.S. Representative Omar

On July 25, 2019, U.S. Representative Ilhan Omar (D-MN) introduced the Zero Waste Act, which intends to create a federal grant program to invest in solutions that address waste. The bill, if passed, will go towards recycling infrastructure or the creation of partnerships with local businesses focused on waste reduction. Representative Omar believes the bill will not only create jobs, but also reduce greenhouse gas (GHG) emissions, grow domestic manufacturing, clean waterways, save energy, ensure safety from health hazards, and grow the U.S. economy.
Omar’s bill has been endorsed by several organizations, including the City of Minneapolis, Eureka Recycling, Climate Generation, and Surfrider Foundation, among others. Presenting this bill through the lens that waste is an environmental justice issue, Representative Omar stated that “[a]ddressing the waste crisis is critical to preventing further damage to our climate—it is integral to racial justice and a clean, equitable future.” At a time where climate change debates have been of high interest to the U.S. population, in particular as the presidential candidate debates continue, it will be interesting to see whether this bill is passed. The full text of the bill can be accessed here.
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For more environmental legislation see the Environmental, Energy & Resources page on the National Law Review.

EPA Expands the Definition of Solid Waste Rule

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The United States Environmental Protection Agency (EPA) is cracking down on alleged sham recycling with the issuance of a final “Definition of Solid Waste” Rule. The rule aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste, Pre-Publication version (Dec. 9, 2014) (to be codified at 40 CFR Parts 260 and 261) (the Rule). The 2008 rule exempted hazardous secondary materials that would be reclaimed from the definition of solid waste. Doing so, according to EPA, effectively de-regulated 1.5 million tons of materials, such as arsenic, benzene, trichloroethylene, lead and mercury. Environmental groups and EPA claim that the deregulation resulted in third-party recyclers over-accumulating materials, increasing the risk of accidents and environmental releases. Consequently, the Rule redefines certain materials as hazardous waste and implements stricter controls on facilities and processes.

The new Rule has the potential to affect numerous industries because it changes what may be recycled, and how, without being subject to hazardous waste requirements. EPA has grouped the regulatory changes into six major categories, outlined below.

1. Exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator. The Rule retains the exclusion from solid waste for companies who recycle the waste they generate.

2. Verified Recycler Exclusion. The Rule will also replace the transfer-based exclusion with an exclusion for verified recyclers reclaiming hazardous materials. A more restrictive framework for generators will result, as the responsibility shifts to the generator to ensure that it is sending hazardous secondary materials only to a recycler or intermediate facility that has obtained the proper RCRA permit or solid waste variance. The solid waste variance procedure replaces a “reasonable efforts” environmental audit process in the 2008 Rule and requires EPA or state involvement before recycling operations begin.

3. Remanufacturing Exclusion. The Rule excludes from the definition of hazardous waste certain higher-value hazardous spent solvents that are remanufactured into commercial-grade products. This new exclusion, according to EPA, will encourage sustainable materials management and reduce the environmental effects of raw materials use. Facilities may submit a rulemaking petition to request the addition of other higher-value hazardous secondary materials to the remanufacturing exclusion.

4. Prohibition of Sham Recycling and Revisions to the Definition of Legitimacy. The Rule tightens the standards required to show “legitimate recycling,” now mandating the following:

  1. The hazardous secondary material must provide a useful contribution to the recycling process or product;

  2. The recycling process must produce a valuable product or intermediate;

  3. The hazardous secondary material must be managed as a valuable commodity; and

  4. The recycled product must be comparable to a legitimate product or intermediate.

The Rule confirmed the exclusion from solid waste for commodity-grade recycled products, such as scrap metal, and in-process recycling.

5. Revisions to Solid Waste Variances and Non-Waste Determinations. Companies may seek a variance to conduct recycling or reclamation, or they may apply for a non-waste determination on a particular waste stream or product.

6. Deferral on Revisions to Pre-2008 Recycling Exclusions. The new Rule declines to supersede pre-2008 recycling exclusions and exemptions. Thus, any existing facilities operating under a pre-2008 solid waste exclusion determination are not subject to a re-determination unless the state chooses to revisit the regulatory determination. However, all facilities will have to comply with the recordkeeping requirements for speculative accumulation and legitimate recycling.

Although the Rule will become effective six months after publication, most states (those that are authorized to enforce RCRA) must individually adopt the Rule before it becomes effective in those States. Such states will have until July 1, 2016 to adopt the new federal rules, though a one-year extension may be available if a statutory amendment is needed. Compliance will likely require a significant investment in proactive planning and new protocols.

ARTICLE BY

Erin E. Guffey
OF
Schiff Hardin LLP