In addition to standardizing what can be collected curbside and through special programs, the new rules define “responsible” end markets and require PROs to manage materials accordingly.

Brief:

• Oregon’s Environmental Quality Commission has adopted a statewide list of items accepted for recycling and defined “responsible end markets” for such materials. These are major steps in implementing the state’s sweeping extended producer responsibility for packaging law passed in 2021.
• The commission, a rulemaking board of the Oregon Department of Environmental Quality, also approved numerous other rules related to the EPR law, known as the Recycling Modernization Act, on Nov. 16. Many of these rules, such as obligations for producer responsibility organizations and collection targets for specific materials, go into effect in 2025 or later.
• DEQ still has plenty to do before the law can be fully implemented. A future round of rulemaking in 2024 will determine more details such as how to establish a “living wage” for MRF employees and how to determine new operating and performance requirements for MRFs, among other details.

Insight:

Oregon DEQ has been hashing out details of how to implement the state’s multifaceted EPR law since 2022. The law calls for most packaging producers to become members of a producer responsibility organization by 2025. Local governments will be able to use producer funding for improvements such as collection services and facility upgrades.

One part of the law is to create a statewide list of materials accepted for recycling, which is meant to reduce confusion about what can and cannot be recycled, DEQ has said. The approved list has several parts: One is comprised of items that local governments must collect, either through collection routes or at depots, while another part indicates the types of items for which producer responsibility organizations will need to arrange separate collection strategies. Some of the items on these sub-lists are allowed to be collected commingled.

The list was finalized after months of stakeholder meetings and hundreds of public comments. Items that local governments will be required to collect curbside or at collection depots include cardboard, aluminum cans, most kinds of plastic bottles and tubs, and steel cans. The list also includes scrap metal, poly-coated cartons, molded pulp packaging, and other items.

PROs will be required to provide separate recycling services for some other types of items, such as aerosol packaging, blocks of white expanded polystyrene foam, larger HDPE pails, PE film, and single-use liquid fuel canisters.

PROs will be able to suggest other materials to be added to these lists as part of the program plan. PROs will need to provide evidence that proposed materials meet the requirements of the law, or it could show how a PRO’s investment or other actions could help that material meet the requirements, said David Allaway, senior policy analyst with Oregon DEQ. 

Nominated items will be subject to review by the public and the state’s recycling council, and ultimately they will be approved or rejected by DEQ, he said. 

One item that didn’t make the final list was PET thermoforms. Numerous recycling and packaging groups weighed in over the summer, with groups such as Ameripen, The Recycling Partnership, and others advocating for the material to be on the accepted list. The Foodservice Packaging Institute recently published a study indicating the value and market for PET thermoforms.

“PET thermoforms are already accepted in a meaningful number of standard and specialized collection systems in Oregon, indicating that PET thermoform collection is already compatible with the state’s collection infrastructure,” wrote Dan Felton, Ameripen’s executive director, in comments submitted earlier this year. 

Allaway said the material didn’t make it to the final list because of lingering questions about whether the material met the EPR rule’s standards for responsible end markets. “That’s not to say that [certain PET thermoform] reclamation facilities don’t meet our standards, it’s just that we weren’t able to get that verified,” he said. 

Under the Recycling Modernization Act, PROs must make sure that covered materials are recycled in “responsible end markets” and that at least 60% of a given material is successfully recycled and processed by the recycling supply chain. “The acceptance lists are informed by statutory criteria, and one of the statutory criteria is the availability, the viability, stability, and maturity of responsible end markets,” Allaway said.

To be considered “responsible,” end markets will need to stay compliant with relevant environmental, labor, and public health laws and regulations, according to the rules the commission adopted on Nov. 16. End market entities will also need to be willing to be audited for its environmental practices and offer documentation tracking materials that originate in Oregon. By July 1, 2027, the PROs will need to verify all end markets and other downstream entities that receive waste collected for recycling in Oregon against the “responsible” standard.

During the public comment process in July, groups like the American Forest & Paper Association, Ameripen, and Circular Action Alliance said it’s important that materials end up in responsible end markets, but they expressed concerns about the availability of such third-party certification systems or other auditing methods. They also have concerns over the level of difficulty PROs might face in the first few years of tracking down the required information or taking corrective action if a standard isn’t being met.

EPR rulemaking is also happening in Colorado and California, two other states with EPR for packaging laws that also include responsible end market requirements, Allaway said. It’s too soon to tell whether the states could align on similar requirements, but “we hear from brokers, for example, who really would prefer to have a single national standard,” he said. 

Though Oregon’s EPR rulemaking process has been long and complex, Allaway said the second round in 2024 will continue to include numerous opportunities for stakeholder engagement and public comment periods.

“For the last 30 years or more, different parties in the recycling system have never sat down and had this conversation, and Oregon’s EPR law is now enabling all of these conversations to occur about where the investments are needed and what do we need to do together to improve the recycling system,” he said.

Editor’s note: This story has been updated to clarify certain language about EPR requirements in Oregon.