New York Carves Out EPR Bill – a Variation on Similar Bills

New York State is considering an extended producer responsibility (EPR) bill (S1185B) that, if passed, will require brands of consumer packaging and paper products to pay to recycle these materials. This includes plastics #1-7, metals, glass, as well as paper from packaging and items like flyers. If the bill passes, producers could sell only what state regulators deem acceptable.

The proposed legislation differs from an established model in that municipalities could continue running recycling programs rather than delegate the task to producers; and producers would reimburse the government for the work.

Sponsored by Senator Todd Kaminsky (D), (S1185B)  is still in the Senate and House who are working on separate versions with plans to determine if they can agree on terms and language to meld into one bill.

The Producer Responsibility Organization, composed of the obligated parties, will propose a plan, including their projected costs to manage the materials. A multistakeholder advisory group of haulers, recyclers, producers, and environmental groups will advise New York State Department of Environmental Conservation on whether the plan will work for all parties, and the final plan must be approved by the state, explains Sydney Harris, senior associate for Policy and Programs for Product Stewardship Institute (PSI). The nonprofit has been involved in shaping the bill and moving it forward.

PSI envisions that the program would evolve over time with continued input from these entities.

“As recycling technology, communication systems, and other systems change we want the policy to evolve with it to adapt to these changes. And you need all these viewpoints to provide ongoing advice to the state who has ultimate authority,” says Scott Cassel, CEO/founder Product Stewardship Institute.

Among key elements of the bill, it would require producers to fund collection, processing, education and cost for the state to run and enforce the program. There would also be differentiated fees, intended to incentivize producers to create packaging with both recycled content and recyclability, while penalizing them for not doing so.

There would be exemptions for small producers, and Cassel anticipates more exemptions will be under consideration.

New York’s local governments are unwaveringly in support of EPR. This is because of funding issues around recycling and because, as of now, there is no comprehensive system, attests Cassel.

Several environmental groups are also backing S1185B, working on outreach to the press, coordinating forums for education, and lobbying the state legislature. Citizens Campaign for the Environment, New York League of Conservation Voters, and Clean and Healthy New York are among the most active of these groups.

But not every stakeholder is sold on the bill.

“There is a dynamic tension between the interest of local government, producers, and the waste management industry around control and input that each entity will have in decisions around how the bill is shaped and how the system would run,” Cassel says.

There has been pushback from newspaper publishers especially. And the Business Council opposes the bill, stating, “Unfortunately, this legislation does not appear to be a product of a thorough and careful process; rather, it seems to identify a problem and mandates others to fix it.”  The Council went on to say the focus should be on improving the existing system for materials recovery and acknowledges that additional regulatory mandates on producers should be part of the approach.

Zachary Kirstein, owner and vice president 4G Recycling, sees two sides, but mostly expresses concern about the bill for now.

4G Recycling has roughly 50 clients in New York, including packaging companies, printers, and distribution centers. The company manages end-of-life materials and sells to domestic and international mills, plants, and other buyers of recyclable materials. 

“Stewardship bills are trying to make package producers create more recycle-friendly containers, and they aim to lower contamination. As a recycler if I get clean material, I’m less apt to have claims from my clients where I have to pay for contamination, which of course is a plus. And we don’t want our clients [packaging companies] throwing material in the trash. But I also have concerns about government saying how companies have to create their packaging,” Kirstein says.

“As a private business owner, I am leery about government forcing businesses to package material according to what is most recycling friendly versus what helps them sell product,” Kirstein says.

He has questions about the mechanism New York would leverage to standardize costs.

“The associated costs may vary in the Bronx versus Buffalo [real estate, electricity transportation, etc]. So I would like to understand how officials will ensure costs are fair for companies in all parts of the state.” 

Kirstein also worries about the implications of the law if the costs to manage material change. “As we’ve learned over the past year, the world can change in an instant. Economies and industry are constantly in a state of flux.

“From a recycling standpoint I am thrilled that, with this bill, less would go to landfill. But I want to make sure it is well thought out and achieves the goal, which is landfill less and recycle more, while considering local businesses’ costs and making sure it’s not hard on recyclers or packagers.” 

Thomas Outerbridge, general manager of Sims Municipal Recycling, is involved in developing and advocating for New York’s EPR bill.  He has heard opposition particularly from paper mills.

“Many of them say their packaging is not a problem and the law is not necessary to solve paper recycling issues. I think that’s not accurate. What precipitated the municipal recycling financial crisis was the collapse of the paper market with China’s National Sword,” he says, pointing out that the Asian market collapse shone light on the reality that there is limited to no domestic market for these materials.

“Municipal recycling programs struggle without markets to support programs that they used to have, and paper products and other packaging are a big part of that problem,” Outerbridge notes.

He points to more than waste paper as a burden, estimating that all packaging is about 40% of the municipal waste stream.

“EPR sets out to insulate local jurisdictions from commodity market fluctuations, and it also drives more market demand and more recyclable products in the consumer product stream,” he says.  

Public and political activity, including proposed EPR bills in other states, have created pressure on brands and the waste management industry to engage in these conversations rather than have laws imposed on them without their input. The political will seems to be there.  

"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,” Kaminsky said in a statement.

While some producers are joining the conversation, these talks are early. 

“They are not all speaking with one voice, so there is the challenge of brands and manufacturers coalescing around what kind of EPR will work for them. And the waste management industry is having the same conversations,” Cassel says.

Just the same he sees growing support and what he calls a “strong sense that local governments need financial relief … And that gives me hope that there’s a good chance EPR for packaging and paper will pass this year.”