Washington Senate Bill 5154 (2023) - (Failed)

Covered products include packaging and paper products sold to consumers for personal use. Packaging is defined as a material substance, or object that is used to protect, contain, transport, or serve a product, sold or supplied to consumers expressly for the purpose of protecting, containing, transporting, or serving products, attached to a product or its container for the purpose of marketing or communicating information about the product, supplied at the point of sale to facilitate the delivery of the product, or supplied to or purchased by consumers expressly for the purpose of facilitating food or beverage consumption that is ordinarily discarded by consumers after a single use or short-term use, whether or not it could be reused.

Paper products is defined as paper sold or supplied to consumers. Some examples include flyers, brochures, booklets, catalogs, newspapers, magazines, copy paper, printing paper, and all other paper materials.

Excluded covered products include:

1. Bound books
2. Conservation grade and archival grade paper
3. Paper products that could become unsafe or unsanitary to handle
4. Materials intended to be used for the long-term storage or protection of a durable product, that is intended to transport, protect, or store the product on an ongoing basis and that can be expected to be usable for that purpose for a period of at least five years
5. Materials used to package pesticide products regulated by the federal insecticide, fungicide, and rodenticide act.
6. The department may consider exclusions that are regulated as a drug, medical device, or dietary supplement by the federal food and drug administration or product that is regulated as animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin under the federal virus-serum-toxin act.
7. Additionally, qualifying beverage containers would be excluded under this act's new chapter.

If the covered product is sold in a physical retail location the producer is the brand owner. If the product lacks a brand owner, the producer of the packaging is the person that manufactures the packaged product. If the covered product is sold under the brand of a retail establishment, the producer is the retail establishment. For covered products sold via remote sale, the producer of packaging used to directly protect or contain the product is the producer.

For paper products that are magazines, newspapers, catalogs, telephone directories, or similar publications, the producer is the publisher.

If the item is manufactured by a person other than the brand owner, the producer of the packaging is the person that is the licensee of a brand or trademark under which a packaged item is used in a commercial enterprise, sold, offered for sale, or distributed in or into this state, whether or not the trademark is registered in this state.

If there is no brand or licensee, the producer of the packaging is the person that imports the packaged item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in the state. For all other packaging that is a covered product, the producer of the packaging is the person that first distributes the packaged product in or into this state.

Producer does not include de minimis producers that annually sell, offer for sale, distribute, or import in Washington state less than one ton of covered products and have a global gross revenue of less than $5,000,000 in the most recent fiscal year.

Producer does not include government agencies, municipalities, or other political subdivisions of the state.

Producer does not include registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations.

Each producer of covered products must participate in, implement, and fund a producer responsibility organization that administers a producer responsibility program. If more than one producer responsibility organization is registered within the state, each producer responsibility organization must coordinate with other producer responsibility organizations

A producer responsibility organization must be a nonprofit organization.

Producers are responsible for all costs and operations by providing service or contracting with service providers, including municipalities that choose to seek reimbursement, whether the services are provided directly or through a contracted service provider.

The plan must cover reimbursements to cover all obligations associated with curbside collection services.

The plan must cover the development and implementation of a public statewide education and outreach on recycling and reuse programs.

The plan must cover costs related to the administration of recycling programs including implementation, administration, and enforcement by the department.

The plan must cover funding of reuse and recycling infrastructure and market development.

The plan must cover funding of reuse and recycling infrastructure and market development.

For producers under a certain size the producer responsibility organization must offer an optional flat rate.

The fee structure must use eco-modulation factors to incentivize packaging design attributes that reduce the environmental impacts of covered products.

The fees for covered products will encourage the use of postconsumer recycled content.

The fees for reusable packaging will be favorably treated or have discounts if in practice covered products are designed for reuse and reused multiple times in a system of reuse.

The fees for covered products will encourage designs that reduce the amount of packaging material used.

The fees for covered products will discourage the use of problematic or difficult to recycle materials that increase system costs of managing covered products.

Performance rates proposed by the producer responsibility organizations will be reviewed by the department. Proposed performance rates must include an overall combined reuse and recycling rate for covered products, minimum reuse rate, a combined reuse and recycling rate for each material category of covered products supplied into the state, and a source reduction rate specific to eliminating plastic components. Rates submitted by the PRO must be achieved by the end of the plan implementation period.

PROs must fund activities to make convenient collection services available for the full list of covered products designated for collection in the plan. This includes curbside collection for single-family and multifamily residences wherever curbside garbage collection services are provided. However, for covered products designated for alternate collection, free and equitable access to permanent collection facilities must be provided. These facilities could be solid waste or drop-off locations, or additional collection events if there is not a collection location. Retail establishments can serve as drop-off locations or event sites.

The PROs must fund and support investments in reuse and recycling infrastructure and market development including installing or upgrading equipment to improve sorting of covered products or mitigating the impacts of covered products to other commodities at existing sorting and processing facilities and capital expenditures for new technology, equipment, and facilities.

A beverage container redemption program where a per unit refund value to consumers for qualifying beverage containers is instituted. There must be a distributor responsibility organization formed. It is designated by a group of distributors representing the majority of beverages sold in qualifying beverage containers in the state. Their role is to develop and carry out the activities required of distributor including collecting and processing qualifying beverage containers. All qualifying beverage containers of all producers subject to the EPR requirements cease to be considered covered products.

Tiered post-consumer recycled content mandates are included. Different covered products are on different timelines and percentage PCRC requirements.

Beginning January 1, 2024, producers of beverages must meet minimum PCRC requirements (Beginning January 1, 2028, producers of wine in 187 milliliter plastic beverage containers and dairy milk in plastic beverage containers must meet PCRC requirements).

Beginning January 1, 2025, producers of household cleaning products or personal care products in plastic household cleaning product containers or plastic personal care product containers must meet minimum PCRC requirements. Beginning January 1, 2025, producers of Washington cannabis, cannabis concentrates, useable cannabis, and cannabis-infused products contained in or packaged in plastic containers or packaging must meet minimum PCRC requirements.

Beginning January 1, 2026, producers of plastic tubs used for food products must meet minimum PCRC requirements.

Beginning January 1, 2029, producers of single-use plastic cups must meet minimum PCRC requirements.

Beginning January 1, 2031, producers of thermoform plastic containers, except those containing durable goods, must meet minimum PCRC requirements. Beginning January 1, 2036, producers of durable goods in thermoform plastic containers must meet minimum PCRC requirements.

Each producer that offers for sale, sells, or distributes a covered product into the state must join a PRO that is registered with the department beginning on January 15, 2024 and each January 15th thereafter, each producer, through a submission by a producer responsibility organization, must register with the department.

Beginning July 1, 2026, or within six months of the first adoption of rules relating to this chapter, whichever is later, every registered producer responsibility organization must submit a plan to the department for approval

A PRO that is registered with the department must implement its plan as approved by the department by July 1, 2027, or within six months of plan approval, whichever is later.

The department reviews new, updated, and revised plans submitted by the PRO. The department must review new, updated, and revised producer responsibility organization plans within 120 days of receipt of a complete plan. The department must also review annual reports submitted by producer responsibility organizations.

The responsible packaging management account is created in the custody of the state treasury. All receipts received by the department must be deposited into this account. All penalties levied must also be deposited in the responsible packaging management account.

Beginning July 1, 2028, and each July 1st thereafter, each producer responsibility organization must submit an annual report to the department for the preceding calendar year of plan implementation.

The department may administratively impose a civil penalty of up to $1,000 per violation per day on any person and up to $10,000 per violation per day for the second and each subsequent violation, this includes the postconsumer recycled content requirements.

Education and outreach materials must include where and how to recycle covered products, or return and refill reusable covered products. Education and outreach must include education on reducing the rate of inbound contamination or unwanted materials.

Education and outreach activities must be included in each plan implemented by a PRO. A producer responsibility organization must coordinate with government entities that choose to participate in carrying out resident education and outreach.

A PRO must solicit and respond to input and recommendations from the advisory council prior to submitting a new, updated, or revised plan to the department.

Advisory council members will be appointed by the director of the department by January 1, 2024. There will be the following representation:

1. Four representatives of local governments representing geographic areas across the state, including urban and rural communities
2. One representative of tribal or indigenous solid waste services organizations
3. One representative of special purpose districts involved in activities related to the end-of-life management of solid waste
4. Two representatives of community-based organizations whose mission is to serve the interests of overburdened communities and vulnerable populations
5. Two representatives of environmental nonprofit organizations
6. One owner or operator of a small business that is not eligible for representation from the recycling industry, covered product producers or trade association, or packaging suppliers
7. Six representatives of the recycling industry, including local governments' service providers, solid waste collection companies or associations, material recovery facilities, or other processing facilities
8. Three representatives of producers of covered products or producer trade associations representing different types of covered products. A member appointed to the council under this subsection may not be a representative or a member of the board of directors of a producer responsibility organization registered with the department
9. Two representatives of packaging suppliers that are not producers as defined under this chapter representing different material categories
10. One representative of a retail establishment

Recyclable means a covered product that is collected, separated, and reprocessed into a recycled material, and that does not contain harmful chemical, physical, biological, or radiological substances that will pose a threat to human health or the environment for its intended or likely manner of use.

A nonreimbursable point-of-sale fee may not be charged to consumers to recoup the costs of meeting producer obligations under this chapter.

The department will conduct a performance rates study and statewide needs assessment that must be carried out by a third-party consultant selected by the department, funded through payments or reimbursements collected from producer responsibility organizations and the statewide needs assessment must be completed by July 1, 2025.

PROs must allow newspaper or magazine owners the ability to provide advertisements or publications supporting the education and outreach activities required in their newspapers, magazines, or on their websites in lieu of program fees as long as the value of the advertisement is equivalent to the estimated cost of managing the covered products that are newspapers or magazines.

Beginning January 1, 2027, a producer may not offer for sale, sell, or distribute in or into Washington, including by means of remote sale, any covered product that makes a deceptive or misleading claim about its recyclability.

This includes any covered product that displays a chasing arrows symbol, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating that it is recyclable is deemed to be deceptive or misleading unless it is designated for collection in a producer responsibility organization plan.

A label is not considered a misleading or deceptive claim of recyclability if it is required by another state or by a federal law or agency at the time that the claim is made, is part of a widely adopted and standardized third-party labeling system, or uses a chasing arrows symbol in combination with a clearly visible line placed at a 45-degree angle over the chasing arrows symbol to convey that an item is not recyclable.

In the producer plan a PRO must establish a statewide list of covered products designated for collection.

Reusable packaging that is reused or refilled by a producer the packaging must satisfy the following to be defined as reusable:

Explicitly designed and marketed to be utilized multiple times for the same product, or for another purposeful packaging use in a supply chain.
Designed for durability to function properly in its original condition for multiple cycles of reuse or refill
Supported by adequate infrastructure to ensure the packaging can be conveniently and safely reused or refilled for multiple cycles.
Repeatedly recovered, inspected, and reissued into the supply chain for reuse or refill for multiple cycles.

For packaging that is reused or refilled by a consumer, the packaging must be:

Explicitly designed and marketed to be utilized multiple times for the same product.
Designed for durability to function properly in its original condition for utilization in multiple cycles of reuse or refill.
Supported by adequate and convenient availability of retail infrastructure to ensure the packaging can be conveniently and safely reused or refilled by the consumer multiple times.