Washington House Bill 2049 (2024) - (Failed)

Covered products include packaging and paper products sold or supplied to consumers for personal, noncommercial use. Packaging is a material, substance, or object that is used to protect, contain, transport, or serve an item, sold or supplied to consumers expressly for the purpose of protecting, containing, transporting, or serving items, attached to an item or its container for the purpose of marketing or communicating information about the item, supplied at the point of sale to facilitate the delivery of the item, 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.

Paper means packaging or paper products made of paper fiber, regardless of its cellulosic fiber source, including wood, wheat, rice, cotton, bananas, eucalyptus, bamboo, hemp, and sugar cane or bagasse. Paper product means paper sold or supplied, including flyers, brochures, booklets, catalogs, magazines, copy paper, printing paper, and all other paper materials.

Exclusions:

1. Packaging materials intended for long term storage of a durable product for at least 5 years
2. Packaging used to contain a pesticide product regulated under the Federal Insecticide, Fungicide, and Rodenticide Act. This exemption does not include products regulated by the United States Food and Drug Administration
3. Refillable or returnable propane tanks
4. Packaging for drugs that are used for animal medicines, biologics, parasiticides, medical devices, or diagnostics
5. Packaging for products that are regulated as a medical device or drug by the United States Food and Drug Administration
6. Packaging for architectural paint that has been collected by a stewardship organization
7. Beverage containers subject to a refund value
8. Bound books, conservation grade and archival grade paper, newspapers, paper designed for use in building construction and paper products that become unsafe or unsanitary to handle

For items sold in or with packaging at a physical retail location:
If the item is sold in or with packaging under the brand of the item manufacturer or is sold in packaging that lacks identification of a brand, the producer is the person that manufactures the item.

For items sold or distributed via e-commerce, remote sale, or distribution:
For packaging used to directly protect or contain the item the producer is the the same. For packaging used to ship the item to a consumer the producer is the person that packages the item to be shipped to the consumer.

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

For other paper products:
If the paper product is sold under the manufacturer's own brand, the producer is the person that manufactures the paper product

For items sold in or with packaging at a physical retail location:
If there is no brand or brand item manufacturer, the producer is the person that is licensed to manufacture and sell an item with packaging under the brand or trademark of another manufacturer or person. If there is no licensed person then the producer is the brand owner.

For items sold or distributed via e-commerce, remote sale, or distribution:
The person who first distributes the item is the producer.

For other paper products:
If there is no manufacturers own brand, then the producer is the person that is the owner or licensee of brand or trademark under which the paper product is used in a commercial enterprise, sold, offered for sale, or distributed in or into this state, whether or not the trademark is registered. If there is no licensee, the manufacturer of the paper product is the producer.

For items sold in or with packaging at a physical retail location:
If there is not brand or licensees, then the producer is the person who is the importer of record for the item. If there is no brand, licensee, or importer then the producer is the person that first distributes the item.

For other paper products:
If there is not brand or licensees, then the producer is the person who imports the paper product into the United States. If there is no brand, licensee, or importer then the producer is the person that first distributes the paper product in or into the state.

A small business is exempt if the company annually sells, offers for sale, distributes, or imports into Washington state less than one ton of covered products or has a global gross revenue of less than $5,000,000 for the most recent fiscal year of the organization.

Additionally, producers can mutually sign an agreement that contractually assigns responsibility to another person as the producer if certain requirements are met.

Government agencies, municipalities, or other political subdivisions of the state are excluded.

Registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations are excluded.

Each producer must register with and be a member of a PRO that administers a producer responsibility program.

Until the conclusion of the initial plan implementation period, the department must only accept the registration of a single producer responsibility organization, other than any producers that register individually as a producer responsibility organization. If more than one producer responsibility organization is registered with the department, the producer responsibility organizations must submit a coordination plan.

Producers may comply individually, but any additional PROs are required to submit a coordination plan.

PRO(s) must be nonprofit organizations.

The PRO is responsible for the costs and operations by providing service or contracting with public and private service providers.

The cost coverage must include costs of collection, transportation, and sorting or processing costs incurred in delivering curbside collection services.

The cost coverage must include public education and outreach activities.

The cost coverage must include administrative and planning costs to be reimbursed by a producer responsibility organization.

The cost coverage must include funding of reuse and recycling infrastructure and market development.

The fee system will be set in the PRO's plan. The fee system must include a base rate, based upon the estimated cost of managing the material categories of covered products, while seeking to avoid a material category that subsidizes any other material category. The PRO must consider total annual amount of material sold by material category, material characteristics, and commodity value.

The PRO can determine if it wants an optional flat rate for producers below a certain size. To minimize the administrative and reporting costs of the producers and the organization, the fee system must include a category of small producers, determined by weight of covered products sold into the state, for whom no fees are charged by the producer responsibility organization.

In addition to the base rate, the fee system must use eco-modulation factors to incentivize the use of packaging design attributes that reduce the negative environmental impacts of covered products. The factors must include both positive incentives, including discounted fees, and disincentives, including increased fees.

The fee system may encourage the use of post-consumer recycled content.

The fee system that includes discounted fees or favorable treatment of covered products deemed to be reusable must establish a basis for determining that products, in practice, are designed and supported by adequate infrastructure to ensure they are reused multiple times as part of a system of reuse.

The fee system may encourage designs that reduce the amount of packaging material used.

The fee system may encourage other design attributes that reduce the climate and other negative environmental impacts of covered products.

The fee system may encourage designs that facilitate and improve infrastructure and systems for reuse, recycling, and home and industrial composting, and that achieve reuse, recycling, and home and industrial composting, while discouraging he use of problematic or difficult to recycle materials that increase system costs of managing covered products.

Any PRO plan submitted to the department must include performance rates. Proposed rates must demonstrate continuous improvement, be justified, and adhere to methodology from the department. At minimum the plan must include an overall recycling rate of covered products.

The second plan must include an overall recycling rate, a separate minimum reuse rate of covered products, a recycling rate for each material category of covered products reported by the PRO, and a source reduction rate to be achieved solely by eliminating plastic components as long as the elimination of the plastic component does not render the covered material detrimental to recycling or nonrecyclables. This source reduction rate must calculate the amount of covered material the producers have source reduced since January 1, 2013.

A PRO must prioritize investments in preexisting infrastructure within Washington state.

A PRO must fund activities to make convenient collection services available for the lists of covered products designated for collection by the department.

A PRO must fund and support investments in infrastructure and market development in Washington state. Investments in infrastructure and market development may include, but are not limited to, those needed to enable reuse, recycling, or composting of covered products not currently reused, recycled, or composted.

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

Beginning January 1, 2023, producers of beverages other than wine in 187 milliliter plastic beverage containers and dairy milk in plastic beverage containers must meet minimum 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, 2027, producers of plastic tubs used for food products must meet minimum PCRC requirements.

Beginning January 1, 2028, producers of wine in 187 milliliter plastic beverage containers or dairy milk in plastic beverage containers 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.

The PRO may request an extension of these requirements and must present data from the evaluation to the department. The department may grant the extension of the implementation of one or more of these requirements for up to one year.

By March 1, 2025, and each March 1st thereafter, each producer, through a submission by a PRO, must register with the department.

By October 1, 2027, or 12 months after the completion of the statewide needs assessment, whichever is later, a PRO must submit a plan to the department for approval.

A PRO registered with the department as of July 1, 2027, must implement its approved plan by January 1, 2029, or within six months of plan approval, whichever is later.

Starting October 1, 2025, a producer that is not a member of a registered PRO or registered as a PRO may not sell or supply covered products in or into Washington.

The department shall review new, updated, and revised PRO plans within 120 days of receipt of a complete plan.

The department must review annual reports submitted by a PRO. The department must make annual reports available for public review and comment, review within 120 days of receipt of a complete annual report, and make a determination as to whether or not an annual report meets the requirements.

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.

Each PRO must fund, through a fee paid to the department, the costs to the department to establish and implement a packaging financial assistance program to reduce the negative environmental impacts of covered products through reuse. The fee charged to any producer responsibility organization may not exceed $5,000,000 each year, beginning with the year of producer responsibility organization registration with the department through the year 2028. Entities eligible for financial assistance include, government entities, tribal governments, nonprofit organizations and private organizations.

Beginning July 1, 2030, and each July 1st thereafter, a PRO 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 post-consumer recycled content requirements.

Covered products must be responsibly managed at facilities with human health and environmental protection standards broadly equivalent to those required in the United States and other OECD countries. Owners or operators of a material recovery facility that manages covered products under this chapter must ensure that workers at the facility are paid not less than the prevailing rate of wage for the same trade or occupation, as defined by the department of labor and industries. "Prevailing rate of wage" includes the hourly wage, usual benefits, and overtime paid in the locality.

Education and outreach materials should provide information that helps reduce contamination and resident confusion regarding the end-of-life management options available for different covered products.

The PRO must implement education and outreach activities including materials, resources, and campaigns that encourage participation in recycling collection and reuse systems.

A PRO must coordinate with government entities that choose to participate in carrying out resident education and outreach in the PRO's plan.

Prior to submitting a new, updated, or revised plan to the department, a PRO must conduct a consultation process to directly and actively involve stakeholders in the development of key plan elements.

Advisory council members will be appointed by the director of the department by January 1, 2025. There will be the following representation:

1. Four representatives of local governments representing geographic areas across the state, including two representatives of counties and two representatives of cities, each with one representative of urban communities and one representative of 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 under other representative seats
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 advisory 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 non-reimbursable point-of-sale fee may not be charged to consumers to recoup the costs of meeting producer obligations.

The department will conduct a statewide needs assessment carried out by a third-party consultant selected by the department and funded through PROs. The first statewide needs assessment must be completed by October 1, 2026.

In consultation with the advisory council, the utilities and transportation commission, and registered PROs, the department may update the statewide needs assessment no sooner than every five years to inform the development of PRO plans and performance rates.

A PRO shall allow producers of covered products that are magazines to satisfy their obligations by providing advertisement or publication supporting the education and outreach activities in their magazines, or on their websites in lieu of program fees.

Beginning January 1, 2028, a producer may not offer for sale, sell, or distribute in or into Washington, including by means of remote sale, any covered product, certified PCRC product, or PCRC product, that makes a deceptive or misleading claim about its recyclability, percentage of recycled content, or its ability to be composted.

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.

By October 1, 2025, and no later than 30 days after approving a new, updated, or revised PRO plan, the department must identify the materials and methods for uniform statewide recycling collection of covered products. A PRO may propose a covered product for addition to the list of materials for uniform statewide recycling collection as part of a producer responsibility organization plan.

Reusable has a 2 part definition:

For returnable packaging that is returned to a producer for reuse, the packaging satisfies all of the following:

Explicitly designed and marketed to be utilized multiple times for the same product or for another purposeful packaging use in a supply chain without undergoing a change in form.

Designed for durability to function properly in its original condition for multiple cycles of reuse
Supported by adequate infrastructure, where needed, to ensure the packaging can be conveniently and safely reused for multiple cycles.

Repeatedly recovered, inspected, and reissued into the supply chain for reuse for multiple cycles.

For refillable packaging that is refilled by a consumer, the packaging satisfies all of the following:

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 refill.

Supported by adequate and convenient availability of services, infrastructure, or at-home refill systems to ensure the packaging can be conveniently and safely refilled by the consumer multiple times

Prior to program use of any alternative recycling process for conversion of postuse plastic polymers for the purpose of producing recycled material to be counted toward performance rates, the PRO must seek the department's approval and submit a third-party assessment of the process's environmental impacts.

In order for an alternative recycling process to be approved, the department must determine, after considering public comment and input from the advisory council that the alternative recycling process produces similar or lesser negative impacts than those produced in recycling that uses purely mechanical means for each of the following environmental impacts:

1. Air and water pollution and release or creation of any hazardous pollutants
2. Energy efficiency and greenhouse gas emissions
3. Generation of hazardous waste
4. Environmental impacts on overburdened communities and vulnerable populations
5. Water usage including, but not limited to, impacts to local water resources and sewage infrastructure
6. Other environmental impacts

In consultation with registered PROs, the department of ecology and the department of revenue must study the impacts of producer requirements on the litter rates of covered products and possible improvements to the structure of the litter tax. By January 1, 2029, the department of ecology, in consultation with the department of revenue, must provide recommendations to the appropriate committees of the legislature.