EPR Debate Heats Up as Break Free from Plastic Pollution Act Enters Congress

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March 29, 2021 | Stefanie Valentic

Oregon Senator Jeff Merkley and Representative Alan Lowenthal (CA - 47) introduced the Break Free from Plastic Pollution Act to Congress on Thursday, March 25.

The anticipation leading up to the bill's announcement was amplified with comedian and political commentator John Oliver endorsing the act on his late night show just days before the introduction, leading to discussions among the general public as well as debate about the accuracy of the segment. While advocates say the legislation is imperative to stop the mass production and consumption of plastics, it has drawn resistance from plastic producers, experts and industry associations who say the bill will only hurt efforts to bolster solid waste and recycling infrastructure in the United States.

"Many of us have recognized the plastic waste crisis for a while, but now we're just as a nation coming to understand the severity of this crisis, and how broken our current waste and recycling system really is," Rep. Lowenthal said. "Further, we are seeing more and more how plastic waste is a crisis. That's not simply a solid waste issue. But it's intimately tied to climate change and to environmental justice at the international human rights as the production and the pollution of plastics impacts public health, it impacts the environment and it impacts certainly our climate."

The Break Free from Plastic Pollution Act of 2021 holds many of the same provisions as its 2020 predecessor with sweeping measures targeting Extended Producer Responsibility (EPR). If passed, the bill would require packaging manufacturers to carry out the task and financial burden of the "design, collection, reuse, recycling, and disposal of their consumer products and packaging, to prevent pollution from consumer products and packaging from entering into animal and human food chains and waterways, and for other purposes."

Plastics manufacturers would be required to increase the post-consumer recycled content of beverage containers to 25% by 2025, 50% by 2030, 70% by 2035 and 80% by 2040. The bill also halts international plastic exports until the Secretary of Commerce enacts a final rule that:

  1. requires the tracking of covered products from sale to disposal;
  2. prohibits the export of covered products to purchasers that convert those plastics into single-use plastics or energy;
  3. requires the Secretary of Commerce, not less frequently than once every 2 years and in consultation with the Administrator and the Secretary of Health and Human Services, to publish a report measuring and evaluating the environmental and environmental justice impacts of exporting covered products from sale to disposal; and
  4. establishes enforceable mechanisms for sellers or purchasers of covered products to mitigate the environmental and environmental justice impacts of those covered products from sale to disposal."

With the COVID-19 pandemic increasing the use of plastics from retail settings to healthcare, the legislation could potentially throw the country's supply chain for a spin, according to opponents.

PLASTICS Chief Economist Perc Paneda, PhD, said the Break Free from Plastics Pollution Act "poses serious danger" to America's manufacturing industry, putting "the over $7.0 billion capital expenditure spending in plastics material and resin manufacturing in serious jeopardy. Importantly, for every dollar spent in manufacturing another $2.74 is added to the economy.”

Product design requirements under accordance with the act would eliminate of reduce the quantity of plastic material used, eliminate toxic substances, reduce the use of additives and design for reuse, refill and lifespan extension while incorporating the use of recycled materials all while taking environmental impact into account. It also refers to the degradability of materials of cold-water environments to reduce ocean plastics and improving the recyclability and compostability of the product.

The ramifications of a manufacturer not in compliance with these requirements would include a written notice followed by a $70,117 penalty on the second violation. The collected fees would be filtered into the Reduction, Recycling, and Litter Cleanup Trust Fund established by section 9512 of the Internal Revenue Code of 1986. The Break Free from Plastic Pollution Act also addresses proper labeling with the goal of label standardization in as little as two years.

The details of a nationwide single-use plastic bag ban also is contained in the bill. Retail establishments that would fail to adhere to the rule would face a fine of $250 upon the first violation, $500 in the case of a second violation and $1000 for any subsequent violations. Any third or subsequent violation would be call for seizure of any single-use plastic in possession of the retail or service establishment. State governments would be tasked with enforcement of the ban.

Oceana Plastics Campaign Director Christy Leavitt said, “we know policies regulating single-use plastic make a difference because we’ve seen it happen in the many cities and states that have been taking action for years. All of those efforts have led to this moment. We urgently need our federal elected leaders to build on this support and push industry to ditch its plastic habit and start making the shift to sustainable alternatives, like reusable and refillable systems.”

Lastly, the bill outlines a national bottle collection refund with a minimum 10-cent regardless of material.

Judith Enck, president of Beyond Plastics, said that "national bottle bills reduce litter, particularly in communities that don't get sanitation cleanups as much as affluent neighborhoods do. It also provides a revenue source for economically struggling people who pick up the containers at no cost to taxpayers."

While the Break Free from Plastic Pollution Act refers to massive investments in domestic recycling and composting infrastructure, some opponents have said the bill's language only stifles progress. The National Waste & Recycling Association (NWRA) recently announced its support for The RECYCLE Act, legislation already gaining bipartisan support for its more comprehensive focus on America's recycling infrastucture.

The organization stated that the "legislative history on recycling has been an 'if you build it, they will come' philosophy focused primarily on creating supply by establishing ambitious recycling goals without adequate consideration of end markets. The RECYCLE Act addresses these shortcomings by requiring routine review of federal procurement of how products with recycled content are acquired. Further, the RECYCLE Act aims to address a significant challenge for recyclers everywhere—education and outreach. Recycling education and outreach ensures that consumers are aware of their recycling options and will be able to do it properly, thus reducing contamination in the stream.

This legislation would authorize $15 million per year over the next five years to local and state governments and other entities to educate consumers and households about their community's recycling programs. The Environmental Protection Agency (EPA) would be required to develop a recycling toolkit for stakeholders to disseminate information with the end goal of improving recycling rates and decreasing contamination across the nation. In addition, the EPA also would have to revisit and revise its ​​​​​​Comprehensive Procurement Guidelines, "which designate products containing recycled materials and provide recommended practices for federal agencies to purchase such products."

“NWRA welcomes this bipartisan legislation as our industry works to address the challenges it faces from the loss of international markets for recyclable commodities,” said NWRA President and CEO Darrell Smith. “We are pleased that the RECYCLE Act recognizes the important roles that nonproft organizations as well as public-private partnerships can play in increasing collection rates and reducing contamination in residential recycling programs.”