SB5022 – Implements a minimum recycled content requirement for plastic beverage containers, prohibits the sale and distribution of some polystyrene products, and establishes optional serviceware requirements. (Changed title)
Prime Sponsor – Senator Das (D; 47th District; Kent) (Co-Sponsor Rolfes – D)
Current status –
In the Senate – Passed
Had a hearing for a substitute in the Senate Committee on Environment, Energy and Technology January 26th. Passed out of committee February 3rd; referred to Ways and Means, and had a hearing there February 16th. Amended and passed out of Ways and Means February 18th. Referred to Rules. Replaced by a striker and further amended on the floor; passed the Senate March 2nd. Senate concurred in the House amendments April 19th.

In the House – Passed
Referred to the Committee on Environment and Energy. Had a hearing on March 11th and 12th. Replaced by another striker, amended, and passed out of committee March 23rd. Referred to Appropriations and had a hearing April 1st. Was replaced by yet another striker, amended, and passed out of committee the same day. Referred to Rules April 2nd. Amended on the floor and passed by the House April 7th. Returned to the Senate for consideration of concurrence.
Next step would be – To the Governor.
Legislative tracking page for the bill.
HB1118 is an identical companion bill.
The sponsors have a flyer summarizing the bill. (My summary, based on my reading of the original text of the bill, differs from this in some ways.)

Comments –
The bill says a lot about collections, but almost nothing about how producers are expected to deal with the responsibility of sorting or processing the products they’ve collected, though I think its definitions of what counts as a measured “recycled” material imply that responsibility.

It says producers are required to invest in recycling and reuse infrastructure and marketing development, including paying for equipment upgrades, new technology, and new facilities, but without any discussion of how those investments are to be determined or what limits there may be to them.

The bill’s language is all about jurisdictions and companies collecting “source separated” materials. I think most collection processes currently let residents put everything in one bin, and try to separate everything later.

It says jurisdictions “may” contract with producer organizations to provide collection services, and that if producers contract for services with them they have to pay their reasonable costs. (I assume that is also supposed to mean that jurisdictions can’t ask for more than that, though the bill doesn’t seem to say that.)

I have no idea how many different producer responsibility organizations would emerge from the bill’s requirements. It allows the creation of one producer organization for all materials, one for each category of material, and even separate organizations for some big brands, like a company running its own bottle deposit program.

Summary –
House floor amendments –
One of these revised the provisions for collecting fees from producers to cover Ecology’s costs. The other lets Ecology temporarily exclude containers from the content requirements if a producer demonstrates annually that it isn’t technically feasible to meet them because of Federal health or safety requirements, added consumer electronics and personal care products representatives to the stakeholder committee, and made some other minor adjustments.

Appropriations striker and amendments –
(The materials folder for this meeting doesn’t have the usual indications of whether amendments were approved or not, so I’m assuming they were all approved, which may not be right.) The striker retained some of the changes in the committee striker, and made other small adjustments; the changes are summarized at the end of it. One amendment would exempt styrofoam food service containers from the prohibition if they had at least 25% postconsumer recycled (PCR) content beginning in 2023, 50% PCR content beginning in 2030, and 75% PCR content beginning in 2035; the others made minute changes.

House committee striker and amendments –
The striker made a lot of small changes and adjustments which are summarized at the end of it. One amendment would make the requirements for postrecycled content in plastic mini wine bottles the same as those for dairy milk bottles. The other would create an impartial third party facilitator for the stakeholders’ advisory committee, with specified qualifications and responsibilities; have its members selected by the facilitator rather than Legislative leaders; and making some other minor changes that are summarized at the end of it.

Striker and other Senate floor amendments –
There’s a summary by staff of the changes made in the striker at the end of that. (It added recycled content requirements for plastic trash bags and for household cleaning and personal care product containers, and made quite a few other small changes.) The other amendments created a stakeholder advisory committee to make recommendations on developing recycled content requirements for plastic packaging, and made a tiny technical clarification.

Substitute –
The substitute heard in committee would actually only implement a minimum recycled content requirement for plastic beverage containers, prohibit the sale and distribution of some polystyrene products, and establish optional serviceware requirements; it doesn’t include provisions about extended producer responsibility any more. There’s now a staff summary of these and other changes in the substitute, at the end of the bill report. (The amendments in Ways and Means were minor, but one changed the actual title of the bill to reflect the big changes made in the substitute.)

Original –
The bill creates producer responsibility requirements for brand owners of products, covering all packaging and paper goods sold or supplied to customers for residential use. (It expands the recommendations of the studies on plastics ordered by the Legislature a few years ago.) Producers are responsible for paying for collecting recyclables by contracting with cities and with private contractors currently collecting source separated material, or by setting up parallel operations. They are responsible for processing materials up to the point at which they could be reused. (For example, plastics would have to be ready to be flaked or pelletized; metals would have to be ready to be smelted.) The bill exempts producers selling, distributing or importing less than a ton of material, or with aggregate revenue of less than $1 million from covered products.

Their responsibilities can be met by joining producers’ organizations, or individually. Producers’ plans for meeting the requirements must be informed by public comment, as well as consultation with stakeholders and an advisory committee with specified membership; submitted by July 1, 2024; reviewed and approved by the Department of Ecology; and implemented within the next year. The Department is authorized to add requirements to these plans. (They’re to be updated on a five year cycle.)

Plans must cover how producers will:
1. use and interact with existing recycling programs and infrastructure, including a description of procurement practices;
2. increase the reuse, refill, and recyclability of covered products;
3. work with and achieve the goals of underserved and underrepresented communities that bear a disproportionate share of adverse environmental, social justice, and economic impacts through socially just management practices including community outreach and engagement in the appropriate language of the impacted communities and meaningful consultation;
4. increase the efficiency of the system for collecting and managing covered products through reuse and recycling;
5. retain producers’ right of first refusal on recycled materials produced from products they collect;
6. identify market engagement strategies to improve effectiveness and efficiency and ensure open competition among waste management service providers when obtaining collection and recycling services, including strategies that involve the use of competitive tenders or open-market financial incentives;
7. describe how they intend to meet the bill’s requirements for providing convenient collection of materials, including the jurisdictions where curbside collection is available, the location of permanent collection facilities, the types and locations of alternate collection methods, and the locations of services collecting materials in public places;
8. list the products they are required to collect and the types of facilities or locations where those are to be collected;
9. include a plan to minimize the amount, cost, and toxicity of residuals from the collection and processing of covered materials, including residuals from materials recovery facilities or similar facilities producing specification-grade commodities for sale (but not residuals from further processing of end market-ready material);
10. include a plan for collecting, transporting, and processing covered products to ensure responsible management and recycling, including meeting the bill’s reuse and recycling performance requirements, providing material that will assist producers in meeting its recycled content requirements, and ensuring covered products intended for collection don’t contain toxic substances;
11. provide for equitable provision of recycling collection services in the state; and environmentally sound and socially just management practices for worker health and safety;
12. describe how producer fees and adjustments to them will encourage design for recycling and litter prevention;
13.  include a plan for reducing contamination from covered products at compost or other organics processing facilities, including improving decontamination equipment and conducting packaging contamination composition studies;
14. plan for the education and outreach the bill requires, including how cities and counties will be involved in and reimbursed for education and outreach activities supporting the achievement of the bill’s requirements; and,
15. describe the dispute resolution process to be used, as needed, with residents, collectors, processors, producers, and end-market users of materials.

Producers are required to manage the products they collect in an “environmentally sound” and “socially just” manner, with human health and environmental protection standards equivalent to or better than those required in the US and other countries in the OECD. (“Environmentally sound” means they comply with laws and rules protecting workers, public health, and the environment; provide for adequate recordkeeping, tracking, and documenting of the fate of materials within the state and beyond; and include environmental liability coverage for the producers.  “Socially just” means that their practices allow every individual the same economic, political, and social rights, privileges, and opportunities, and that they don’t disproportionately impact any community, and in particular communities in the state or elsewhere, with disproportionately higher levels of adverse environmental, social justice, and economic impacts.) [Among other things, these definitions apparently mean that any recycling in other countries must comply with US labor and environmental standards.] They have to track and verify that products collected by their programs are managed responsibly, and report on that publically. (They also have to document how they’ve used domestic and local collection and processing infrastructure, and the extent to which using those to meet the requirements of the bill is technologically feasible and economically practical.)

The bill requires “all covered products” to be reusable, recyclable, or compostable by 2030.  (Converting covered materials to energy, fuels, or landfill cover does not count as recycling them.) By 2026, at least 5% of all covered products must actually be reused, and at least 55% must actually be reused or recycled. By 2030, at least 10% of all covered products must actually be reused, and at least 75% must actually be reused or recycled. (There are also requirements specifying percentages of reuse and recycling by 2026 and 2030 for different categories of materials, increasing from those for flexible plastics to those for glass.) It prohibits the sale or distribution of various styrofoam containers, packing peanuts, and restaurant items. It creates fines of $250 for violations of the styrofoam rules (and of up to $1,000 for repeat violations). Violations of the rest of the new chapter are subject to fines of up to $1,000 a day (and of up to $10,000 a day for willful or negligent  violations).

The bill includes requirements for the use of post-consumer recycled content in covered products, with varying dates and percentages for different products and materials, ranging from 10% of the content of flexible plastics by 2026 and 50% by 2030 up to 50% of the content of paper packaging by 2026 and 75% by 2030. Beverage containers are to include at least 25% recycled plastic starting in 2025, and at least 50% by 2030. The bill allows producers or their organizations to trade credits to meet these obligations.

Ecology is authorized to waive or reduce the bill’s requirements for post-consumer recycled content in a variety of ways in response to a number of specified factors, and must consider doing that every two years and in response to producer petitions, but no more than once a year. Starting in 2028, Ecology would also be authorized to modify or lower the reuse and recycling performance requirements in response to the markets for them and other specified factors, to expand them to include other materials, and to set requirements for dates beyond 2030.

The bill requires producer organizations to invest in reuse and recycling infrastructure and market development in the state, including installing or upgrading equipment to improve sorting and mitigate impacts of commodities at existing sorting and processing facilities, and capital expenditures for new technology, equipment, and facilities.

The bill requires producers to develop education and outreach programs to provide clear, equitable, socially just, and consistent information to residents, supporting the achievement of the reuse and recycling requirements. Programs must:
1. use consistent and easy to understand messaging to reduce residents’ confusion about the recycling and end-of-life management options available for different products;
2. establish a process for answering customer questions and resolving their concerns;
3. provide resources that are appropriate for the communities served and reach diverse ethnic populations, including through meaningful consultation with communities with higher levels of adverse environmental and social justice impacts;
4. develop and provide materials about the program for retailers, collectors, government agencies, and nonprofit organizations;
5. inform producers and retailers about their obligation to sell only covered products from producers participating in an approved plan; and
6. evaluate the effectiveness of education and outreach efforts.

Producer organizations must ensure convenient collection services for their covered products are available in jurisdictions where they supply them. Curbside collection of covered products (except for products designated for “alternative collection” because they aren’t suitable for curbside pickup) must be provided wherever there’s curbside garbage collection; in other areas, free and accessible access to permanent collection facilities must be provided at all solid waste transfer, disposal, and processing sites. At least 90% of residents must have access to a permanent site within 15 miles, and to an additional permanent site for every 30,000 residents in urban areas; underserved areas have to be provided with reasonably located and frequent collection events.

Jurisdictions may or may not choose to collaborate or contract with producers to provide collection services, or education and outreach activities required by the bill. In areas where solid waste collection is provided by companies regulated by the UTC, source separated curbside collection of recyclables for residents is to be provided where there’s curbside garbage collection (though companies can be exempted by the UTC if they haven’t already been providing that service or relinquish their right to provide it.) If they do provide it, producers must pay for the service according to the rates established by the commission, and pay any taxes and fees that would otherwise be paid by residents.

When producers contract with jurisdictions or companies to provide services required by the bill they have to use open, competitive, and fair procurement practices; compensate cities and counties that provide collection or outreach services for all their reasonable costs; ensure that all contracted service providers meet minimum operating standards, operate in an environmentally sound and socially just manner, meet high labor standards, demonstrate procurement from and contracts with women, minority, or veteran-owned businesses, provide fair opportunities without discrimination; and maintain the records and chain of custody documentation needed to decide if they’ve met the bill’s requirements.

Details –

The Department of Ecology is to collect annual payments from producers that cover the costs of administering the program, and is authorized to establish equitable ways to divide those costs among producers. (Producers are prohibited from charging consumers “non-reimbursable point of sale fees” to cover these costs.) Producer organizations charging their members for the costs of implementing the plan must structure those in “an environmentally sound and socially just manner that encourages the use of design attributes that reduce the environmental impacts of covered products”, through steps such as adjusting charges to favor designs that facilitate reuse and recycling and the use of recycled content; discourage the use of materials that increase the costs of managing covered products; and encourage other design attributes that reduce the environmental impacts of covered products, including the potential to create litter.

There are various reporting, auditing, and verification requirements; Ecology’s authorized  to expand these. Appeals of penalties for violations are to be handled through Ecology’s existing appeal processes.

Producers and producer organizations must establish and fund advisory committees with a specified range of representatives. They can sue for their costs for dealing with materials created by other producers who haven’t participated or haven’t met the bill’s requirements.