H-0744.1
HOUSE BILL 1488
State of Washington 67th Legislature 2021 Regular Session
By Representatives Fey, Senn, Walen, Peterson, Lekanoff, Hackney,
Slatter, Duerr, and Pollet
Read first time 02/05/21. Referred to Committee on Environment &
Energy.
1 AN ACT Relating to the management of plastic packaging materials;
2 amending RCW 70A.200.140; reenacting and amending RCW 43.21B.110;
3 adding a new section to chapter 42.56 RCW; adding a new chapter to
4 Title 70A RCW; creating a new section; and prescribing penalties.
5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
6 NEW SECTION. Sec. 1. (1) Sustainable and resilient markets for
7 recycled materials are essential to any successful recycling system.
8 For many years, Washington has depended on foreign markets to accept
9 the recyclable materials that are collected for recycling in the
10 state. Developing domestic markets for recycled materials benefits
11 the environment and the state's economy and is critical due to the
12 loss of foreign markets.
13 (2) China's 2018 national sword policy bans the importation of
14 recycled mixed paper and certain types of recycled plastic and
15 imposes a stringent contamination limit on all other recycled
16 material imports. Washington's recycling facilities are struggling to
17 find markets for recyclable materials.
18 (3) Plastic packaging can be recycled and can contain recycled
19 content in order to close the loop in the recycling stream. Many
20 companies have already taken the initiative at closing the loop by
21 using plastic bottles that contain 100 percent recycled content.
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 1 Since November 2010, one national juice company has been using
2 bottles made with 100 percent postconsumer recycled content for all
3 of its juices and juice smoothies. In January 2018, an international
4 beverage producer announced that it will make all its bottles from
5 100 percent recycled plastic by 2025.
6 (4) The legislature intends that costs to plastic packaging
7 producers will be capped and predictable. The requirements imposed by
8 this chapter are reasonable and are achievable at minimal cost
9 relative to the burden imposed by the continued excessive use of
10 virgin materials in plastic packaging in Washington.
11 (5) The legislature encourages plastic packaging producers to use
12 plastic packaging that exceeds the standards set forth in this
13 chapter.
14 (6) The legislature intends that by January 1, 2025, all plastic
15 packaging sold in the state of Washington be either recyclable or
16 compostable.
17 NEW SECTION. Sec. 2. The definitions in this section apply
18 throughout this chapter unless the context clearly requires
19 otherwise.
20 (1) "Brand" means a name, symbol, word, or mark that identifies a
21 product, rather than its components, and attributes a covered product
22 that is packaging utilized by the product to the brand holder of the
23 product as the producer.
24 (2) "Brand holder" means a person who owns or licenses a brand or
25 who otherwise has rights to market a product under the brand, whether
26 or not the brand trademark is registered.
27 (3) "Compostable" means a covered product that is capable of
28 undergoing aerobic biological decomposition in a system meeting the
29 requirements of chapters 70A.205 and 70A.455 RCW, that results in the
30 material broken down primarily into carbon dioxide, water, inorganic
31 compounds, and biomass.
32 (4) "Department" means the department of ecology.
33 (5) "Infant formula" means any liquid food described or sold as
34 an alternative for human milk for the feeding of infants.
35 (6)(a) "Medical food" means a food or beverage that is formulated
36 to be consumed, or administered enterally under the supervision of a
37 physician, and that is intended for specific dietary management of
38 diseases or health conditions for which distinctive nutritional
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 1 requirements, based on recognized scientific principles, are
2 established by medical evaluation.
3 (b) "Medical food" includes a specially formulated and processed
4 product, for the partial or exclusive feeding of a patient by means
5 of oral intake or enteral feeding by tube, and is not a naturally
6 occurring foodstuff used in its natural state.
7 (c) "Medical food" includes any product that meets the definition
8 of "medical food" in the federal food, drug, and cosmetic act 21
9 U.S.C. Sec. 360ee (b)(3).
10 (7)(a) "Plastic packaging" means the portion of packaging made
11 from plastic, whether alone or in combination with another material,
12 including packaging that bonds plastic with other materials together,
13 such as metal lids bonded to plastic bottles, blister packs combining
14 plastic and paperboard, but excluding plastic-coated paper packaging
15 and aseptic containers, and is: (i) Used to protect, contain, or
16 transport a commodity or product at any point from manufacture to its
17 place of use; or (ii) attached to a commodity or product or its
18 container for the purpose of marketing or communicating information
19 about the commodity or product, and which is capable of being removed
20 and discarded when the product is put in use without adverse effect
21 on the quality or performance of the product.
22 (b) "Plastic packaging" includes packaging that is filled or
23 unfilled and packaging that is intended to be sold as a product to
24 customers.
25 (8)(a) "Postconsumer recycled content" means the percentage of
26 recycled plastic contained in or attributed to the plastic packaging
27 that is made of recycled materials derived specifically from
28 postconsumer plastic sources and processed using either mechanical or
29 advanced recycling technologies including, but not limited to,
30 depolymerization, gasification, pyrolysis, or solvolysis.
31 (b) For the purposes of this subsection, "attributed" means a
32 methodology by which a producer using mass balance allocates an
33 equivalent of its input feedstocks that were derived from advanced
34 recycling processes across one or more of its products manufacturers
35 using such feedstocks.
36 (9)(a) "Producer" means a manufacturer of plastic packaging and a
37 wholesaler, supplier, or retailer that has contractually undertaken
38 responsibility to the manufacturer for the covered product.
39 (b) "Producer" does not include:
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 1 (i) Government agencies, municipalities, or other political
2 subdivisions of the state;
3 (ii) Registered 501(c)(3) charitable organizations and 501(c)(4)
4 social welfare organizations; or
5 (iii) A health care facility or a health care provider as defined
6 in RCW 70.02.010.
7 NEW SECTION. Sec. 3. (1) Each year, a producer of plastic
8 packaging must meet the following minimum postconsumer recycled
9 content on average across a producer's entire product line for the
10 total amount of plastic packaging sold, offered for sale, or
11 distributed in Washington effective:
12 (a) For packaging comprised primarily of resins number 1 PETE
13 (polyethylene terephthalate) or number 2 HDPE (high density
14 polyethylene) as identified in RCW 70A.220.020:
15 (i) July 1, 2023, through December 31, 2026: No less than 15
16 percent postconsumer recycled plastic;
17 (ii) January 1, 2027, through December 31, 2030: No less than 25
18 percent postconsumer recycled plastic;
19 (iii) On and after January 1, 2031: No less than 50 percent
20 postconsumer recycled plastic.
21 (b) For rigid packaging comprised primarily of resins numbers 3
22 through 7 as identified in RCW 70A.220.020:
23 (i) July 1, 2023, through December 31, 2030: No less than 15
24 percent postconsumer recycled plastic;
25 (ii) January 1, 2030, through December 31, 2035: No less than 25
26 percent postconsumer recycled plastic;
27 (iii) On and after January 1, 2036: No less than 50 percent
28 postconsumer recycled plastic.
29 (c) For flexible packaging comprised primarily of resins numbers
30 3 through 7 as identified in RCW 70A.220.020:
31 (i) July 1, 2023, through December 31, 2028: No less than 10
32 percent postconsumer recycled plastic;
33 (ii) January 1, 2029, through December 31, 2035: No less than 20
34 percent postconsumer recycled plastic;
35 (iii) On and after January 1, 2036: No less than 30 percent
36 postconsumer recycled plastic.
37 (2)(a) Beginning in 2024, and every other year thereafter, or at
38 the petition of a producer or the plastic packaging industry but not
39 more than annually, the department shall consider whether the minimum
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 1 postconsumer recycled content requirements established under
2 subsection (1) of this section should be reduced. The department must
3 consider a petition from the plastic packaging industry within 60
4 days of receipt and must issue a written response. A denial in part
5 or whole of the petition must be accompanied by a written explanation
6 and findings to each of the petition's claims. The department may
7 consider all petitions received as part of the same agency action or
8 proceeding.
9 (b) If the department determines that a minimum postconsumer
10 recycled content requirement should be adjusted, the adjusted rate
11 must be in effect until a new determination is made or upon the
12 expiration of the minimum postconsumer recycled content requirement's
13 effective period, whichever occurs first. The department may not
14 adjust the minimum postconsumer recycled content requirements above
15 the applicable minimum postconsumer recycled content percentage for
16 the applicable compliance period, as established in subsection (1) of
17 this section. The department may not adjust the minimum postconsumer
18 recycled content requirements below the lowest applicable material
19 compliance level set in subsection (1) of this section. In making a
20 determination to adjust the minimum postconsumer recycled content
21 requirements, the department must at least consider the following:
22 (i) Changes in market conditions, including supply and demand for
23 postconsumer recycled plastics, collection rates, and bale
24 availability;
25 (ii) Recycling rates;
26 (iii) The availability of recycled plastic suitable to meet the
27 minimum postconsumer recycled content requirements;
28 (iv) The capacity of recycling or processing infrastructure;
29 (v) The progress made by plastics packaging manufacturers in
30 meeting the requirements of this section; and
31 (vi) The carbon footprint of the transportation and manufacture
32 of the recycled resin.
33 (3) A producer, the plastic packaging industry, or a plastic
34 packaging manufacturer may appeal adjustments to the requirement for
35 minimum postconsumer recycled content as determined under subsections
36 (1) and (2) of this section to the pollution control hearings board
37 within 30 days of the department's determination.
38 (4) A producer that does not meet the minimum postconsumer
39 recycled content requirements established in subsection (1) of this
40 section is subject to a fee established in section 5 of this act.
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 1 (5) The department may grant a reduction in fees to a producer of
2 plastic packaging. In determining whether to grant the reduction, the
3 department shall consider, at a minimum, all of the following
4 factors:
5 (a) Anomalous market conditions;
6 (b) Disruption in, or lack of supply of, recycled plastics;
7 (c) The extent to which a producer has reduced overall packaging
8 waste generated with recyclable, compostable, or reusable
9 alternatives;
10 (d) Other factors that have prevented a producer from meeting the
11 requirement including, but not limited to, state or federal laws,
12 rules, or regulations.
13 (6)(a) In order to receive a reduction of the fee, a producer
14 shall submit to the department a corrective action plan detailing the
15 reasons why the producer will fail to meet or has failed to meet the
16 minimum postconsumer recycled content standard and the steps the
17 producer will take to comply with the minimum postconsumer recycled
18 content standard within the next reporting year. The department may
19 approve the corrective action plan and must reduce fees on a producer
20 once it approves the corrective action plan and the producer
21 implements the plan.
22 (b) The department must provide a written explanation for a
23 decision to approve or deny a corrective action plan, including:
24 (i) Factors or standards used by the department in reviewing a
25 corrective action plan;
26 (ii) An explanation of how the department applied standards or
27 factors under (b)(i) of this subsection to the corrective action
28 plan;
29 (iii) An explanation of actions a producer can take in a future
30 corrective action plan to reduce fees or other compliance
31 requirements;
32 (iv) An explanation of the methodology used by the department to
33 determine the fee.
34 (c) The department shall provide technical assistance and an
35 opportunity for a plastic packaging producer to update a corrective
36 action plan before issuing fees.
37 (d) Fees accrue from the point of noncompliance with the minimum
38 postconsumer recycled content standard if the department disapproves
39 the corrective action plan or if the producer fails to implement the
40 plan.
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 1 NEW SECTION. Sec. 4. (1)(a) By March 1, 2022, and annually
2 thereafter, a producer, under penalty of perjury, must report to the
3 department, in pounds and by resin type, the amount of virgin plastic
4 and postconsumer recycled plastic used for plastic packaging sold,
5 offered for sale, or distributed in Washington state in the previous
6 calendar year.
7 (b) The department must post aggregated information for all
8 producers reported under this subsection on its website.
9 (2) The department may: (a) Conduct audits and investigations for
10 the purpose of ensuring compliance with this section based on the
11 information reported under subsection (1) of this section; and (b)
12 adopt rules to implement, administer, and enforce the requirements of
13 this chapter.
14 (3) The department shall keep confidential all business trade
15 secrets and proprietary information about manufacturing processes and
16 equipment that the department gathers or becomes aware of through the
17 course of conducting audits or investigations pursuant to this
18 chapter.
19 NEW SECTION. Sec. 5. (1) Beginning July 1, 2023, a producer
20 that does not meet the minimum postconsumer recycled content
21 requirements across a producer's entire product line for plastic
22 packaging sold, offered for sale, or distributed in Washington as
23 established under section 3 of this act, based upon the amount in
24 pounds and in the aggregate, is subject to an annual fee.
25 (2) Beginning July 1, 2023, the department may assess fees for
26 violations.
27 (3)(a) The department shall adopt rules to implement a fee that
28 will not exceed $200 per ton. The department may structure fees to
29 lower fees for producers that achieve partial compliance. The fee
30 structure implemented must be estimated to raise no less than
31 $30,000,000 per biennium and no more than $40,000,000 per biennium.
32 (b) If the department estimates that fee revenue will fall below
33 the range established in (a) of this subsection, the department must
34 implement a base fee of $200 per ton and publish an estimate of
35 revenue expected to be raised by the fee in the report required by
36 subsection (4) of this section. The department may lower fees for
37 individual producers under section 3 (5) or (6) of this act.
38 (4) Beginning January 1, 2023, the department must publish an
39 annual report containing an annual estimate of the revenue estimated
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 1 to be raised by the fee, the amounts and quantities of plastic
2 packaging subject to the fee, and the number of producers currently
3 and expected to be in compliance with section 3 of this act.
4 (5) A producer must:
5 (a) Pay to the department assessed fees in quarterly
6 installments; or
7 (b) Arrange an alternative payment schedule subject to the
8 approval of the department.
9 (6) A producer may appeal fees assessed under this section to the
10 pollution control hearings board within 30 days of assessment.
11 (7) A producer shall pay the fees assessed pursuant to this
12 section, as applicable, based on the information reported to the
13 department as required under section 4 of this act in the form and
14 manner prescribed by the department.
15 (8) The department shall not spend more than 10 percent of the
16 collected fees on administration or enforcement of the program.
17 NEW SECTION. Sec. 6. (1) The recycling improvement account is
18 created in the state treasury. All receipts from the