Sustainable and resilient markets for recycled materials are essential to any successful recycling system. For many years, Washington has depended on foreign markets to accept the recyclable materials that are collected for recycling in the state. Developing domestic markets for recycled materials benefits the environment and the state's economy and is critical due to the loss of foreign markets.
China's 2018 national sword policy bans the importation of recycled mixed paper and certain types of recycled plastic and imposes a stringent contamination limit on all other recycled material imports. Washington's recycling facilities are struggling to find markets for recyclable materials.
Plastic packaging can be recycled and can contain recycled content in order to close the loop in the recycling stream. Many companies have already taken the initiative at closing the loop by using plastic bottles that contain 100 percent recycled content. Since November 2010, one national juice company has been using bottles made with 100 percent postconsumer recycled content for all of its juices and juice smoothies. In January 2018, an international beverage producer announced that it will make all its bottles from 100 percent recycled plastic by 2025.
The legislature intends that costs to plastic packaging producers will be capped and predictable. The requirements imposed by this chapter are reasonable and are achievable at minimal cost relative to the burden imposed by the continued excessive use of virgin materials in plastic packaging in Washington.
The legislature encourages plastic packaging producers to use plastic packaging that exceeds the standards set forth in this chapter.
The legislature intends that by January 1, 2025, all plastic packaging sold in the state of Washington be either recyclable or compostable.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Brand" means a name, symbol, word, or mark that identifies a product, rather than its components, and attributes a covered product that is packaging utilized by the product to the brand holder of the product as the producer.
"Brand holder" means a person who owns or licenses a brand or who otherwise has rights to market a product under the brand, whether or not the brand trademark is registered.
"Compostable" means a covered product that is capable of undergoing aerobic biological decomposition in a system meeting the requirements of chapters 70A.205 and 70A.455 RCW, that results in the material broken down primarily into carbon dioxide, water, inorganic compounds, and biomass.
"Department" means the department of ecology.
"Infant formula" means any liquid food described or sold as an alternative for human milk for the feeding of infants.
"Medical food" means a food or beverage that is formulated to be consumed, or administered enterally under the supervision of a physician, and that is intended for specific dietary management of diseases or health conditions for which distinctive nutritional requirements, based on recognized scientific principles, are established by medical evaluation.
"Medical food" includes a specially formulated and processed product, for the partial or exclusive feeding of a patient by means of oral intake or enteral feeding by tube, and is not a naturally occurring foodstuff used in its natural state.
"Medical food" includes any product that meets the definition of "medical food" in the federal food, drug, and cosmetic act 21 U.S.C. Sec. 360ee (b)(3).
"Plastic packaging" means the portion of packaging made from plastic, whether alone or in combination with another material, including packaging that bonds plastic with other materials together, such as metal lids bonded to plastic bottles, blister packs combining plastic and paperboard, but excluding plastic-coated paper packaging and aseptic containers, and is: (i) Used to protect, contain, or transport a commodity or product at any point from manufacture to its place of use; or (ii) attached to a commodity or product or its container for the purpose of marketing or communicating information about the commodity or product, and which is capable of being removed and discarded when the product is put in use without adverse effect on the quality or performance of the product.
"Plastic packaging" includes packaging that is filled or unfilled and packaging that is intended to be sold as a product to customers.
"Postconsumer recycled content" means the percentage of recycled plastic contained in or attributed to the plastic packaging that is made of recycled materials derived specifically from postconsumer plastic sources and processed using either mechanical or advanced recycling technologies including, but not limited to, depolymerization, gasification, pyrolysis, or solvolysis.
For the purposes of this subsection, "attributed" means a methodology by which a producer using mass balance allocates an equivalent of its input feedstocks that were derived from advanced recycling processes across one or more of its products manufacturers using such feedstocks.
"Producer" means a manufacturer of plastic packaging and a wholesaler, supplier, or retailer that has contractually undertaken responsibility to the manufacturer for the covered product.
"Producer" does not include:
Government agencies, municipalities, or other political subdivisions of the state;
Registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations; or
A health care facility or a health care provider as defined in RCW 70.02.010.
Each year, a producer of plastic packaging must meet the following minimum postconsumer recycled content on average across a producer's entire product line for the total amount of plastic packaging sold, offered for sale, or distributed in Washington effective:
For packaging comprised primarily of resins number 1 PETE (polyethylene terephthalate) or number 2 HDPE (high density polyethylene) as identified in RCW 70A.220.020:
July 1, 2023, through December 31, 2026: No less than 15 percent postconsumer recycled plastic;
January 1, 2027, through December 31, 2030: No less than 25 percent postconsumer recycled plastic;
On and after January 1, 2031: No less than 50 percent postconsumer recycled plastic.
For rigid packaging comprised primarily of resins numbers 3 through 7 as identified in RCW 70A.220.020:
July 1, 2023, through December 31, 2030: No less than 15 percent postconsumer recycled plastic;
January 1, 2030, through December 31, 2035: No less than 25 percent postconsumer recycled plastic;
On and after January 1, 2036: No less than 50 percent postconsumer recycled plastic.
For flexible packaging comprised primarily of resins numbers 3 through 7 as identified in RCW 70A.220.020:
July 1, 2023, through December 31, 2028: No less than 10 percent postconsumer recycled plastic;
January 1, 2029, through December 31, 2035: No less than 20 percent postconsumer recycled plastic;
On and after January 1, 2036: No less than 30 percent postconsumer recycled plastic.
Beginning in 2024, and every other year thereafter, or at the petition of a producer or the plastic packaging industry but not more than annually, the department shall consider whether the minimum postconsumer recycled content requirements established under subsection (1) of this section should be reduced. The department must consider a petition from the plastic packaging industry within 60 days of receipt and must issue a written response. A denial in part or whole of the petition must be accompanied by a written explanation and findings to each of the petition's claims. The department may consider all petitions received as part of the same agency action or proceeding.
If the department determines that a minimum postconsumer recycled content requirement should be adjusted, the adjusted rate must be in effect until a new determination is made or upon the expiration of the minimum postconsumer recycled content requirement's effective period, whichever occurs first. The department may not adjust the minimum postconsumer recycled content requirements above the applicable minimum postconsumer recycled content percentage for the applicable compliance period, as established in subsection (1) of this section. The department may not adjust the minimum postconsumer recycled content requirements below the lowest applicable material compliance level set in subsection (1) of this section. In making a determination to adjust the minimum postconsumer recycled content requirements, the department must at least consider the following:
Changes in market conditions, including supply and demand for postconsumer recycled plastics, collection rates, and bale availability;
The availability of recycled plastic suitable to meet the minimum postconsumer recycled content requirements;
The capacity of recycling or processing infrastructure;
The progress made by plastics packaging manufacturers in meeting the requirements of this section; and
A producer, the plastic packaging industry, or a plastic packaging manufacturer may appeal adjustments to the requirement for minimum postconsumer recycled content as determined under subsections (1) and (2) of this section to the pollution control hearings board within 30 days of the department's determination.
A producer that does not meet the minimum postconsumer recycled content requirements established in subsection (1) of this section is subject to a fee established in section 5 of this act.
The department may grant a reduction in fees to a producer of plastic packaging. In determining whether to grant the reduction, the department shall consider, at a minimum, all of the following factors:
Anomalous market conditions;
Disruption in, or lack of supply of, recycled plastics;
The extent to which a producer has reduced overall packaging waste generated with recyclable, compostable, or reusable alternatives;
Other factors that have prevented a producer from meeting the requirement including, but not limited to, state or federal laws, rules, or regulations.
In order to receive a reduction of the fee, a producer shall submit to the department a corrective action plan detailing the reasons why the producer will fail to meet or has failed to meet the minimum postconsumer recycled content standard and the steps the producer will take to comply with the minimum postconsumer recycled content standard within the next reporting year. The department may approve the corrective action plan and must reduce fees on a producer once it approves the corrective action plan and the producer implements the plan.
The department must provide a written explanation for a decision to approve or deny a corrective action plan, including:
Factors or standards used by the department in reviewing a corrective action plan;
An explanation of how the department applied standards or factors under (b)(i) of this subsection to the corrective action plan;
An explanation of actions a producer can take in a future corrective action plan to reduce fees or other compliance requirements;
An explanation of the methodology used by the department to determine the fee.
The department shall provide technical assistance and an opportunity for a plastic packaging producer to update a corrective action plan before issuing fees.
Fees accrue from the point of noncompliance with the minimum postconsumer recycled content standard if the department disapproves the corrective action plan or if the producer fails to implement the plan.
By March 1, 2022, and annually thereafter, a producer, under penalty of perjury, must report to the department, in pounds and by resin type, the amount of virgin plastic and postconsumer recycled plastic used for plastic packaging sold, offered for sale, or distributed in Washington state in the previous calendar year.
The department must post aggregated information for all producers reported under this subsection on its website.
The department may: (a) Conduct audits and investigations for the purpose of ensuring compliance with this section based on the information reported under subsection (1) of this section; and (b) adopt rules to implement, administer, and enforce the requirements of this chapter.
The department shall keep confidential all business trade secrets and proprietary information about manufacturing processes and equipment that the department gathers or becomes aware of through the course of conducting audits or investigations pursuant to this chapter.
Beginning July 1, 2023, a producer that does not meet the minimum postconsumer recycled content requirements across a producer's entire product line for plastic packaging sold, offered for sale, or distributed in Washington as established under section 3 of this act, based upon the amount in pounds and in the aggregate, is subject to an annual fee.
Beginning July 1, 2023, the department may assess fees for violations.
The department shall adopt rules to implement a fee that will not exceed $200 per ton. The department may structure fees to lower fees for producers that achieve partial compliance. The fee structure implemented must be estimated to raise no less than $30,000,000 per biennium and no more than $40,000,000 per biennium.
If the department estimates that fee revenue will fall below the range established in (a) of this subsection, the department must implement a base fee of $200 per ton and publish an estimate of revenue expected to be raised by the fee in the report required by subsection (4) of this section. The department may lower fees for individual producers under section 3 (5) or (6) of this act.
Beginning January 1, 2023, the department must publish an annual report containing an annual estimate of the revenue estimated to be raised by the fee, the amounts and quantities of plastic packaging subject to the fee, and the number of producers currently and expected to be in compliance with section 3 of this act.
A producer must:
Pay to the department assessed fees in quarterly installments; or
Arrange an alternative payment schedule subject to the approval of the department.
A producer may appeal fees assessed under this section to the pollution control hearings board within 30 days of assessment.
A producer shall pay the fees assessed pursuant to this section, as applicable, based on the information reported to the department as required under section 4 of this act in the form and manner prescribed by the department.
The department shall not spend more than 10 percent of the collected fees on administration or enforcement of the program.
The recycling improvement account is created in the state treasury. All receipts from the fee imposed on plastic packaging in section 5 of this act must be deposited in the account. However, until June 30, 2024, $1,000,000 from the fee imposed on plastic packaging in section 5 of this act must be deposited in the waste reduction, recycling, and litter control account created in RCW 70A.200.140, with the remainder deposited in the recycling improvement account. Moneys in the account may be spent only after appropriation.
One hundred percent of the expenditures from the account must be used for distributions by the department to cities and counties that are eligible for financial assistance under RCW 70A.205.080 for the purposes specified in (b) of this subsection, and for the department's administration of this chapter.
(A) Actions or investments to improve recycling infrastructure and the recyclability of plastic packaging through curbside recycling programs;
(B) Depots or collection points for plastics not effectively collected or processed through curbside programs; and
(C) Solid waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70A.205 RCW.
ii. In adopting rules governing the distribution of funds under this subsection, the department may incorporate the fund prioritization criteria and process adopted by the department under RCW 70A.205.080. The rules adopted by the department must distribute funds to counties based on the population of the county, after distributing a set minimum amount to each county. iii. The department shall develop rules governing the distribution of funds under this section in conjunction with an advisory committee convened by the department that includes five members appointed by the Washington association of county solid waste managers and five members appointed by the Washington state association of local public health officials. These rules must include a requirement that local governments annually report to the department on how the funds are used to improve plastics recycling infrastructure and the recyclability of plastic packaging. These reports must be posted on the department's public website.
A stakeholder advisory committee for the implementation of this chapter is established. The stakeholder advisory committee must recommend to the department, and the department may adopt by rule, methods for aggregating materials to determine compliance, exemptions, exceptions, or alternative compliance requirements for the provisions of sections 3 through 5 of this act, that include, but are not limited to:
Plastic packaging, including food contact packaging, that is subject to federal laws, regulations, or requirements, including requirements of the United States department of transportation, the United States department of agriculture, or the United States food and drug administration;
Plastic packaging that is determined by the department through life-cycle analysis to exhibit environmentally superior performance when it does not contain postconsumer recycled content or contains smaller amounts of postconsumer recycled content than established by the requirements of section 3 of this act;
Plastic packaging from producers with an annual sale or distribution of less than 2,000 pounds of plastic packaging in Washington;
Plastic packaging associated with a single point of retail sale in Washington;
Plastic packaging from women or minority-owned producers, if the department determines such an exemption is in the public interest;
Packaging that is necessary to provide tamper-resistant seals for public health purposes or used for food protection and delivery or child-resistant packaging; or
Plastic packaging that is intended for reuse by a business as part of the regular operations of the business.
The department must provide a written explanation to the stakeholder advisory committee regarding exemptions implemented or denied based on stakeholder recommendations. The department may include this explanation within the concise explanatory statement under RCW 34.05.325.
The department shall exempt the following plastic packaging from the provisions of sections 3 through 5 of this act:
Plastic packaging and food serviceware provided for the purpose of serving prepared serving food: (i) Via a drive through; (ii) in a packaged form for takeout or takeaway; or (iii) from food trucks, stands, delis, or kiosks that may or may not provide shelter or seating for consumers;
Plastic bags subject to postconsumer recycled content requirements under chapter 70A.530 RCW;
Compostable packaging determined by the department to meet the requirements of chapter 70A.455 RCW;
Any material that is used in the packaging of a product that is regulated as a drug, medical device, or dietary supplement by the United States food and drug administration under the federal food, drug, and cosmetic act (21 U.S.C. Sec. 321 et seq.) as well as drugs used for veterinary medicine, including parasiticide products for animals. This includes plastic packaging that contains:
Milk, medical food, or infant formula;
Wine, or wine from which alcohol has been removed, in whole or in part, whether or not sparkling or carbonated;
One hundred percent fruit juice in containers that are 46 ounces or more in volume; and
One hundred percent vegetable juice in containers of 16 ounces or more in volume;
Plastic packaging containers that contain toxic or hazardous products regulated by the federal insecticide, fungicide, and rodenticide act (7 U.S.C. 136 et seq.);
Plastic packaging containers that are manufactured for use in the shipment of hazardous materials and are prohibited from being manufactured with used material by federal packaging material specifications and testing standards set forth in 49 C.F.R. Secs. 178.509 and 178.522, or are subject to testing standards set forth in 49 C.F.R. Secs. 178.600 through 178.609, inclusive, or to which recommendations of the United Nations on the transport of dangerous goods are applicable;
Architectural paint defined in and included in a stewardship plan under chapter 70A.515 RCW;
Aerosols regulated under 49 C.F.R. Sec. 178.33b-6;
Three and five gallon water cooler containers that are part of a water cooler system; and
Packaging not intended to be discarded but instead used for the long-term or permanent storage or protection of a durable product and that is intended to transport, protect, or store the product on an ongoing basis, such as an included reusable carrying case for the product.
The president of the senate and the speaker of the house of representatives shall jointly appoint at least one member to the stakeholder advisory committee from each of the following:
The department of commerce;
The utilities and transportation commission;
Cities, including both small and large cities and cities located in urban and rural counties;
Counties, including both small and large counties and urban and rural counties;
Public sector recycling and solid waste industries;
Private sector recycling and solid waste industries;
A solid waste collection company regulated under chapter 81.77 RCW that provides curbside recycling services;
A material recovery facility operator that processes municipal solid waste from curbside recycling programs;
A company that provides curbside recycling service pursuant to a municipal contract under RCW 81.77.020;
A trade association that represents the private sector solid waste industry;
Recycled plastic feedstock users;
Environmental and environmental justice organizations;
A manufacturer of plastic packaging;
A statewide general business trade association;
A representative of a consumer brand company or retailer that utilizes plastic packaging;
A representative of an advanced recycling technology provider that processes plastic material; and
An association that represents county solid waste managers.
After the adoption of initial rules to implement this chapter, the department must periodically reengage the stakeholder advisory committee under this section to review the exemptions, exceptions, or alternative compliance requirements adopted by rule under this section.
A city, town, county, or municipal corporation may not implement local recycled content requirements for plastic packaging that are inconsistent with minimum postconsumer recycled content as required under section 3 of this act.
Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of this chapter, may not be enacted and are preempted.
Information submitted to the department of ecology under chapter 70A.--- RCW (the new chapter created in section 13 of this act), that contains business trade secrets or proprietary information about manufacturing processes and equipment, is exempt from disclosure under this chapter.
There is hereby created an account within the state treasury to be known as the waste reduction, recycling, and litter control account. Moneys in the account may be spent only after appropriation. Expenditures from the waste reduction, recycling, and litter control account shall be used as follows:
Forty percent to the department of ecology, primarily for use by the departments of ecology, natural resources, revenue, transportation, and corrections, and the parks and recreation commission, for litter collection programs under RCW 70A.200.170. The amount to the department of ecology shall also be used for a central coordination function for litter control efforts statewide; to support employment of youth in litter cleanup as intended in RCW 70A.200.020, and for litter pick up using other authorized agencies; and for statewide public awareness programs under RCW 70A.200.150(7). The amount to the department shall also be used to defray the costs of administering the funding, coordination, and oversight of local government programs for waste reduction, litter control, recycling, and composting so that local governments can apply one hundred percent of their funding to achieving program goals. The amount to the department of revenue shall be used to enforce compliance with the litter tax imposed in chapter 82.19 RCW;
Beginning June 30, 2021, until June 30, 2022:
Four percent to the department of ecology to implement and enforce chapter 70A.--- RCW (the new chapter created in section 13 of this act);
Thirty-six percent to the department of ecology to: (A) Implement activities under RCW 70A.200.150 for waste reduction, recycling, and composting efforts; (B) provide technical assistance to local governments and commercial businesses to increase recycling markets and recycling and composting programs primarily for the products taxed under chapter 82.19 RCW designed to educate citizens about waste reduction, litter control, and recyclable and compostable products and programs; (C) increase access to waste reduction, composting, and recycling programs, particularly for food packaging and plastic bags and appropriate composting techniques; and (D) for programs to reduce wasted food and food waste that are designed to achieve the goals established in RCW 70A.205.715(1) and that are consistent with the plan developed in RCW 70A.205.715(3); and
After June 30, 2022, 40 percent to the department of ecology: (i) To implement activities under RCW 70A.200.150 for waste reduction, recycling, and composting efforts; (ii) to provide technical assistance to local governments and commercial businesses to increase recycling markets and recycling and composting programs primarily for the products taxed under chapter 82.19 RCW designed to educate citizens about waste reduction, litter control, and recyclable and compostable products and programs; (iii) to increase access to waste reduction, composting, and recycling programs, particularly for food packaging and plastic bags and appropriate composting techniques; and (iv) for programs to reduce wasted food and food waste that are designed to achieve the goals established in RCW 70A.205.715(1) and that are consistent with the plan developed in RCW 70A.205.715(3).
All taxes imposed in RCW 82.19.010 and fines and bail forfeitures collected or received pursuant to this chapter shall be deposited in the waste reduction, recycling, and litter control account and used for the programs under subsection (1) of this section.
Not less than five percent and no more than ten percent of the amount appropriated into the waste reduction, recycling, and litter control account every biennium shall be reserved for capital needs, including the purchase of vehicles for transporting crews and for collecting litter and solid waste. Capital funds shall be distributed among state agencies and local governments according to the same criteria provided in RCW 70A.200.170 for the remainder of the funds, so that the most effective waste reduction, litter control, recycling, and composting programs receive the most funding. The intent of this subsection is to provide funds for the purchase of equipment that will enable the department to account for the greatest return on investment in terms of reaching a zero litter goal.
Funds in the waste reduction, recycling, and litter control account, collected under chapter 82.19 RCW, must be prioritized for the products identified under RCW 82.19.020 solely for the purposes of recycling, composting, and litter collection, reduction, and control programs.
Nothing in this act changes or limits the authority of the Washington utilities and transportation commission to regulate collection of solid waste, including curbside collection of residential recyclable materials, nor does this chapter change or limit the authority of a city or town to provide the service itself or by contract under RCW 81.77.020.