How Will New York's Extended Producer Responsibility Bill (S1185B) Affect the U.S. Waste Industry?

How Will New York's Extended Producer Responsibility Bill (S1185B) Affect the U.S. Waste Industry?

New York’s state legislature is weighing a new Extended Producer Responsibility (EPR) law, one of a group of similar proposals in state Houses and Senates nationwide that aim to make producers responsible for recycling the packaging and other waste associated with their products.

The bill, S1185B, is currently being read in two slightly different versions in both the House and the Senate in New York, and has strong backing from environmental groups and veteran lawmakers, making it likely that some form of the bill will become law.

Waste companies and businesses that operate in New York will need to know what’s in the bill, and what it means for waste haulage and management. But even if you’ve never been to New York, bills like this are increasingly common across the country as states work to establish environmental regulations in what they regard as the absence of sufficient movement at the federal level. A bill like this might be coming to your statehouse. It might already be there.

Here’s everything you need to know about bill S1185B, the movement to establish EPR, and the effect it will have on the waste industry.

What is S1185B?

S1185B is a New York State law that would establish Extended Producer Responsibility (EPR). EPR is a strategy for assessing the environmental costs of a product throughout the product’s lifecycle and bundling it with the product’s purchase price — internalizing an externality, in economic policy terms.

The new law is currently making its way through the State Senate and House, which are reading different versions of it; passing it intact is far from a foregone conclusion, despite the support of environmental heavyweights Senator Todd Kaminsky and Assemblymember Steve Engelbright.

‘We are facing a recycling crisis in our country, and it is essential for government to step up to the plate, mitigate waste and save taxpayer money — and that is precisely what my extended producer responsibility legislation will do,’ said Senator Kaminsky, Chair of the Senate Environmental Conservation Committee.

What’s in the bill?

new york extended producer responsibility act bill Senate Bill S1185B

If it passes, the bill will require brands of consumer packaging and paper products to pay for the recycling of those materials. This will include plastics #1-7, meaning all commonly recycled plastics, as well as metals, glass, and paper from packaging as well as items like flyers. The bill would give state regulators the power to veto producers’ packaging choices. Producers would not be permitted to sell any covered materials in the state unless they were part of a producer responsibility organization plan approved by state regulators.

However, it’s different from the established model in that municipalities could continue running recycling programs rather than delegating recycling to producers. In turn, producers would reimburse government for the recycling work, essentially outsourcing it — but also tying state infrastructure into the business production and disposal process as well as integrating regulators into packaging and other decisions.

In addition, the bill would require producers to fund collection, education and costs for the state to run and enforce the program. A schedule of differentiated fees, intended to incentivize production of recycled and recyclable packaging as well as to disincentivize failure to do this, is also part of the bill. Small producers would be exempt, and there will probably be more exemptions added to the bill before it passes.

You can read the text of the bill here.

What if you’re not in New York?

Laws like this that establish responsibility for packaging in-state have limits. Packaging comes from all over the world, and laws like this kick in when producers use it to package and sell products; until then, it’s a product in its own right, so moving it around isn’t an issue.

And transporting used packaging across state lines often means it’s no longer covered by EPR laws at the state level too. The federal government has jurisdiction over interstate travel, meaning the much less restrictive federal environmental laws would apply, and New York can’t prosecute a company in New York for what happens in Michigan or Montana.

But in a way, that’s the point of these bills. They’re not aimed at large-scale industrial pollution; they’re built to target consumer-level packaging. That’s always going to be local, and the costs of hauling large amounts of this packaging will almost always mean it’s cheaper to pony up the EPR fees than it is to ship thousands of paper cups or plastic bottles out of state.

What about mail order businesses?

Suppose you have a business making something specialized, like guitars or skateboards, in another state. You get them made in California, package them and ship them to customers in New York.

Do you have to stop business operations until the state approves your packaging plan in New York?

No, for two reasons. First, the law applies to businesses that do their selling in New York. You are selling your guitars from California; that’s where the sale takes place. And you’re shipping to New York, but you aren’t opening a storefront there. You’re not operating a business in New York, you’re operating a business in California and customers are coming from New York to buy from you.

Second, the bill has exemptions for small businesses. Smaller outfits don’t have the time or budget for red tape, so they’re written out of laws like this a lot. And they’re also negligible contributors to the waste and environmental degradation the law is designed to combat. S1185B isn’t targeted at the cardboard wrapping around the 12 Rickenbackers a year you ship to the five boroughs. It’s aimed at companies that feed thousands of tons of plastic bottles or paper wrappers a week into the municipal waste stream. If you’re across state lines, or you’re a small business, you’re fine.

The debate around the bill

New York’s local governments are strongly supportive of the bill, which would solve many of their recycling funding issues and establish a citywide framework for recycling. There’s also backing from several environmental groups, including Citizens Campaign for the Environment and the New York League of Conservation Voters, which are helping with press outreach, coordinating education forums and lobbying the state legislature.

Understandably, and despite input from industry groups including the Producer Responsibility Organization, the legislation faces opposition from businesses concerned about rising costs, government overreach and fairness.

The Business Council, in its own words, ‘opposes S.1185-A,’ which it says ‘represents a full-scale paradigm shift in the New York recycling sector and would essentially transfer responsibility for end-of-life management of packaging (carton, glass, metal), paper and plastic products from municipalities to a broad class of “producers” (including manufacturers of, and companies who import and/or sell, products covered by this legislation)... comes at an unknown cost, and will have a significant impact on New York’s business community at the same time it attempts to recover from the economic effects of the pandemic.’

In particular, the new bill is expected to impact publishers, making them responsible for waste newsprint. Writing in Syracuse.com, David Chavern, CEO of the publishers’ group News Media Alliance, warned that S.1185-A’s ‘EPR fees, which essentially amount to new taxes, come at a time when the Covid-19 pandemic has hit newspapers and their customers especially hard.’ He went on to warn that the bill penalizes publishers despite some recycling success in their sector and a relatively small contribution to the waste stream.

The EPR landscape

New York isn’t the only place considering a bill like this. Across the USA, nearly a dozen states are considering similar legislation.

That on its own would be enough to indicate a sea change in attitudes to waste and recycling at the legislative level; but these efforts aren’t restricted to the state level. Lawmakers from nine states, including California, Colorado, Hawaii, Maryland, New Hampshire, New York, Oregon, Vermont and Washington state, have formed the EPR for Packaging Network, a caucus designed to promote EPR bills as a waste management solution in more states. There’s a chance we could be looking at an effort to get national legislation state-by-state, and if federal regulations mirroring these requirements do come they will likely take their cue from the states’ EPR bills.

In a statement announcing the formation of the network, California State Senator Ben Allen said: ‘Plastic waste is a global crisis that is threatening our oceans, marine life, the environment, and public health.’

Other lawmakers framed waste disposal and recycling as a racialized public health issue, with Maryland State Delegate Brooke Lierman saying, ‘this year we have seen people of color disproportionately impacted by COVID-19, and we know that these very same communities are also being negatively impacted by plastic production and plastic waste. We must act with urgency to address these public health emergencies.’

Are federal regulations coming?

There are definitely federal regulations in the pipeline. The Break Free From Plastic Pollution Act will be reintroduced to the House in 2021, and its stipulations make it one of the most important pieces of environmental legislation since the Resource Conservation and Recovery Act (RCRA) 1976.

It would:

  • Declare a temporary moratorium on new virgin plastic production
  • Impose a national container deposit system
  • Require minimum recycled content in plastic products
  • Restrict exports of plastic
  • Ban single-use plastic food service items

The bill’s author, Senator Tom Udall (D-NM), said, ‘requiring companies to take true responsibility for their excessive waste and pollution is the only way we will tackle our colossal plastic waste problem.’

It does also include EPR, but makes provision for this to be self-managed by industry, which has been criticized as handing too much power to corporations. However, if passed, it would establish EPR regulations nationwide, superseding state efforts.

How will this affect the waste industry in affected states and cities?

recycling plastic bottles

Whether the Break Free From Plastic Pollution Act passes the federal legislature or not, some form of EPR is almost certainly coming to New York as well as to other states.

What will the waste industry have to do differently?

S1185B doesn’t lay any new responsibilities on waste companies directly. But by making producers responsible for waste streams and enforcing recycling at the municipal level, the bill will change how waste companies do business in the state.

Currently in New York, trash is handled by two separate systems, one public and the other private. The New York City Department of Sanitation (DSNY) serves residential buildings, government agencies, and many nonprofit facilities. The private system is regulated by the Business Integrity Commission (BIC), with more than 250 waste hauling firms operating under license to remove non-construction and non-industrial waste.

New York recycles a lot of its own waste, especially paper waste, 50% of which is processed in a facility on Staten Island; but it also struggles to replace the facilities overseas that it lost access to when China stopped accepting waste barges from the US. With new laws obliging producers to link up with municipal recycling facilities, expect new opportunities for specialized and recycling-oriented waste hauling companies.

However, there are issues with EPR laws that are nonlocal; for instance, they have a tendency to encourage incineration rather than fractional recycling; in locations with mattress EPRs, incineration rises and recycling falls.

This may not be an issue for some waste streams, though EPR laws in New York will mean it might need another Staten Island; but for plastics, specialist recycling facilities will be required — and transportation, handling and storage will have to be dealt with. The chances that the DSNY will handle all of this are pretty slim; much will be put out to private tender.

How can WasteBits help?

If you’re a producer looking for a waste company to handle your waste stream and make sure you’re compliant — now, or after the passage of any future EPR legislation — you can use our Locator toolto find an appropriate waste vendor or facility near you.

If you’re a waste company looking for ways to get out ahead of oncoming legislation, consider using Insights.

Insights is a business development tool built by WasteBits with the waste industry in mind. You can use it to identify and leverage trends in the waste industry, capture lead activity, and access the most up-to-date generator data and facility reports in the industry, letting you start building the relationships you’ll need to succeed.

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