Concerning the recyclability of products and packaging.

AN ACT Relating to the recyclability of products and packaging; 1 amending RCW 70A.245.010, 70A.245.020, and 70A.245.030; adding a new 2 chapter to Title 70A RCW; and prescribing penalties.3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:4 NEW SECTION. Sec. 1. The legislature finds and declares that it 5 is the public policy of the state that claims related to the 6 recyclability of a product or packaging be truthful in practice and 7 accurate. Consumers deserve accurate and useful information related 8 to how to properly handle the end of life of a product or packaging.9 NEW SECTION. Sec. 2. The definitions in this section apply 10 throughout this chapter unless the context clearly requires 11 otherwise.12 (1)(a) "Chasing arrows symbol" means an equilateral triangle, 13 formed by three arrows curved at their midpoints, depicting a 14 clockwise path, with a short gap separating the apex of each arrow 15 from the base of the adjacent arrow. 16 (b) "Chasing arrows symbol" also includes variants of that symbol 17 that are likely to be interpreted by a consumer as an implication of 18 recyclability including, but not limited to, one or more arrows 19 arranged in a circular pattern or around a globe. 20 S-3278.2 SENATE BILL 5658 State of Washington 67th Legislature 2022 Regular Session By Senator Stanford Prefiled 01/05/22. p. 1 SB 5658 (2) "Department" means the department of ecology.1 NEW SECTION. Sec. 3. (1) A person may not offer for sale, sell, 2 distribute, or import into the state any product or packaging for 3 which a deceptive or misleading claim about the recyclability of the 4 product or packaging is made.5 (2) A product or packaging that displays a chasing arrows symbol, 6 a chasing arrows symbol surrounding a resin identification code, or 7 any other symbol or statement indicating the product or packaging is 8 recyclable, or otherwise directing the consumer to recycle the 9 product or packaging, is deemed to be a deceptive or misleading claim 10 under this section unless the product or packaging is considered 11 recyclable in the state under section 5 of this act and is of a 12 material type and form that routinely becomes feedstock used in the 13 production of new products or packaging. 14 (a) This section does not apply to either of the following:15 (i) Any product or packaging that is manufactured up to 18 months 16 after the date the department publishes the first material 17 characterization study required under section 4 of this act, or 18 before January 1, 2025, whichever is later; or 19 (ii) Any product or packaging manufactured up to 18 months after 20 the date the department updates the material characterization study 21 under section 4 of this act, if the product or packaging satisfied 22 or, for a new product or packaging, would have satisfied, the 23 requirements to be considered recyclable in the state under section 5 24 of this act before the publication of the updated study.25 (b) For a product or packaging that is not considered to be 26 recyclable in the state under section 5 of this act, all the 27 following apply: 28 (i) Displaying a chasing arrows symbol or any other statement 29 indicating the product is recyclable directly on the product is 30 deemed to be deceptive or misleading under this section.31 (ii) If a product or packaging has multiple material types, a 32 chasing arrows symbol or statement indicating recyclability may be 33 displayed on the external packaging that is considered to be 34 recyclable in the state under section 5 of this act if the chasing 35 arrows symbol or statement makes clear in the same or greater font, 36 font size, or symbol size which other components of the product or 37 packaging are not recyclable. 38 p. 2 SB 5658 (iii) Displaying a chasing arrows symbol or any other statement 1 indicating recyclability on packaging containing a consumable product 2 shall, for purposes of this section, be deemed to refer only to the 3 packaging. 4 (c) For the purposes of this subsection, "consumable product" 5 means a commodity that is intended to be used and not disposed of.6 (3) For the purposes of this section, none of the following 7 constitutes a deceptive or misleading claim about the recyclability 8 of the product or packaging under this section: 9 (a) A person using a chasing arrows symbol in combination with a 10 clearly visible line placed at a 45 degree angle over the chasing 11 arrows symbol to convey that an item is not recyclable.12 (b) A consumer good that is required by any federal or Washington 13 state law or regulation to display a chasing arrows symbol.14 (c) Directing a consumer to compost or properly dispose of a 15 consumer good through an organics recycling program.16 (d) A resin identification code placed inside a solid equilateral 17 triangle. 18 NEW SECTION. Sec. 4. (1) By January 1, 2025, the department 19 shall produce a material characterization study to provide 20 information to the public sufficient for evaluating whether a product 21 or packaging is recyclable in the state according to the criteria set 22 forth in section 5 of this act and are of material types and forms 23 that routinely become feedstock used in the production of new 24 products or packaging.25 (a) To get a representative sample of recycling programs in the 26 state, the department shall conduct and publish on its website a 27 characterization study of material types and forms that are 28 collected, sorted, sold, or transferred by facilities that process 29 recyclable materials from curbside recycling programs and other solid 30 waste facilities deemed appropriate by the department for inclusion 31 in the study. 32 (b) The material characterization study must: 33 (i) Identify what material types and forms are actively 34 recovered, and not considered contaminants, by included operations or 35 facilities; and 36 (ii) How the material collected or processed by the operations 37 and facilities was collected. 38 p. 3 SB 5658 (2) The department shall update the material characterization 1 study required under this section every five years, with the first 2 update being issued by the department in 2028. 3 (3) For each material characterization study conducted under this 4 section, the department shall publish on its website the preliminary 5 findings of the study and conduct a public meeting to present the 6 preliminary findings and receive public comments. The public meeting 7 must occur at least 30 days after the department publishes the 8 preliminary findings. After receiving and considering public 9 comments, and within 90 days of the public meeting, the department 10 shall finalize and publish on its website the findings of the study.11 (4) The department may publish additional information that was 12 not available at the time of the most recent periodic material 13 characterization study regarding the appropriate characterization of 14 material types and forms. 15 NEW SECTION. Sec. 5. (1)(a) A product or packaging is 16 considered recyclable in the state if, based on information published 17 by the department under section 4 of this act, the product or 18 packaging is of a material type and form that meets both of the 19 following requirements:20 (i) The material type and form is collected for recycling by 21 recycling programs for jurisdictions that collectively encompass at 22 least 60 percent of the population of the state; and23 (ii) The material type and form are sorted into defined streams 24 for recycling processes by large volume transfer or processing 25 facilities, as provided in chapter 70A.205 RCW, that process 26 materials and collectively serve at least 60 percent of recycling 27 programs statewide, with the defined streams sent to and reclaimed at 28 a reclaiming facility consistent with the requirements of chapter 29 70A.205 RCW . 30 (b) The department may adopt rules modifying the requirement to 31 encompass transfer or processing facilities other than large volume 32 transfer or processing facilities as the department deems appropriate 33 for achieving the purposes of this section. 34 (2) A product or packaging is not considered recyclable in the 35 state unless the product or packaging meets all the following 36 criteria, as applicable: 37 (a) For plastic packaging, the plastic packaging is designed to 38 not include any components, inks, adhesives, or labels that prevent 39 p. 4 SB 5658 the recyclability of the packaging according to the APR design guide 1 published by the association of plastic recyclers; and2 (b) For plastic products and nonplastic products and packaging, 3 the product or packaging is designed to ensure recyclability and does 4 not include any components, inks, adhesives, or labels that prevent 5 the recyclability of the product or packaging. 6 (3) A product or packaging is recyclable in the state if the 7 product or packaging has a demonstrated recycling rate of at least 75 8 percent, meaning that not less than 75 percent of the product or 9 packaging sorted and aggregated in the state is reprocessed into new 10 products or packaging. 11 (4) Before January 1, 2031, a product or packaging not collected 12 under a curbside collection program is recyclable in the state if the 13 noncurbside collection program recovers at least 60 percent of the 14 product or packaging in the program and the material has sufficient 15 commercial value to be marketed for recycling and be transported at 16 the end of its useful life to a transfer, processing, or recycling 17 facility to be sorted and aggregated into defined streams by material 18 type and form. 19 (5) After January 1, 2031, a product or packaging not collected 20 under a curbside collection program is recyclable in the state if the 21 noncurbside collection program recovers at least 75 percent of the 22 product or packaging in the program and the material has sufficient 23 commercial value to be marketed for recycling and be transported at 24 the end of its useful life to a transfer, processing, or recycling 25 facility to be sorted and aggregated into defined streams by material 26 type and form. 27 (6) A product or packaging is recyclable in the state if the 28 product or packaging is part of, and in compliance with, a program 29 established under state or federal law on or after January 1, 2024, 30 governing the recyclability or disposal of that product or packaging 31 if the director of the department determines that the product or 32 packaging will not increase contamination of curbside recycling or 33 deceive consumers as to the recyclability of the product or 34 packaging. 35 (7) The information published by the department under section 4 36 of this act may not limit the discretion of a local government under 37 existing law to decide whether, and to what extent, a material type 38 or form is accepted by a local recycling program. 39 p. 5 SB 5658 NEW SECTION. Sec. 6. (1) A city, county, or the state may 1 impose civil liability in the amount of $500 for the first violation 2 of this chapter, $1,000 for the second violation, and $2,000 for the 3 third and any subsequent violation.4 (2) By January 1, 2026, the department shall implement an 5 enforcement program to investigate and identify violations of this 6 chapter. 7 Sec. 7. RCW 70A.245.010 and 2021 c 313 s 2 are each amended to 8 read as follows: 9 The definitions in this section apply throughout this chapter 10 unless the context clearly requires otherwise. 11 (1) "Beverage" means beverages identified in (a) through (f) of 12 this subsection, intended for human or animal consumption, and in a 13 quantity more than or equal to two fluid ounces and less than or 14 equal to one gallon: 15 (a) Water and flavored water; 16 (b) Beer or other malt beverages; 17 (c) Wine; 18 (d) Distilled spirits; 19 (e) Mineral water, soda water, and similar carbonated soft 20 drinks; and 21 (f) Any beverage other than those specified in (a) through (e) of 22 this subsection, except infant formula as defined in 21 U.S.C. Sec. 23 321(z), medical food as defined in 21 U.S.C. Sec. 360ee (b)(3), or 24 fortified oral nutritional supplements used for persons who require 25 supplemental or sole source nutritional needs due to special dietary 26 needs directly related to cancer, chronic kidney disease, diabetes, 27 or other medical conditions as determined by the department.28 (2) "Beverage manufacturing industry" means an association that 29 represents beverage producers. 30 (3) "Condiment packaging" means packaging used to deliver single-31 serving condiments to customers. Condiment packaging includes, but is 32 not limited to, single-serving packaging for ketchup, mustard, 33 relish, mayonnaise, hot sauce, coffee creamer, salad dressing, jelly, 34 jam, and soy sauce. 35 (4)(a) "Covered product" means an item in one of the following 36 categories subject to minimum postconsumer recycled content 37 requirements: 38 (i) Plastic trash bags; 39 p. 6 SB 5658 (ii) Household cleaning and personal care products that use 1 plastic household cleaning and personal care product containers; 2 ((and))3 (iii) Beverages that use plastic beverage containers ;4 (iv) Products that use plastic tubs;5 (v) Products that use thermoform plastic containers; and6 (vi) Single-use plastic cups . 7 (b) "Covered product" does not include any type of container or 8 bag for which the state is preempted from regulating content of the 9 container material or bag material under federal law.10 (5) "Dairy milk" means a beverage that designates milk as the 11 predominant (first) ingredient in the ingredient list on the 12 container's label. 13 (6) "Department" means the department of ecology.14 (7) "Expanded polystyrene" means blown polystyrene and expanded 15 and extruded foams that are thermoplastic petrochemical materials 16 utilizing a styrene monomer and processed by any number of techniques 17 including, but not limited to, fusion of polymer spheres (expandable 18 bead polystyrene), injection molding, foam molding, and extrusion-19 blow molding (extruded foam polystyrene). 20 (8) "Food service business" means a business selling or providing 21 food for consumption on or off the premises, and includes full-22 service restaurants, fast food restaurants, cafes, delicatessens, 23 coffee shops, grocery stores, vending trucks or carts, home delivery 24 services, delivery services provided through an online application, 25 and business or institutional cafeterias. 26 (9) "Food service product" means a product intended for one-time 27 use and used for food or drink offered for sale or use. Food service 28 products include, but are not limited to, containers, plates, bowls, 29 cups, lids, beverage containers, meat trays, deli rounds, utensils, 30 sachets, straws, condiment packaging, clamshells and other hinged or 31 lidded containers, wrap, and portion cups. 32 (10) "Household cleaning and personal care product" means any of 33 the following: 34 (a) Laundry detergents, softeners, and stain removers;35 (b) Household cleaning products; 36 (c) Liquid soap; 37 (d) Shampoo, conditioner, styling sprays and gels, and other hair 38 care products; or 39 p. 7 SB 5658 (e) Lotion, moisturizer, facial toner, and other skin care 1 products. 2 (11) "Household cleaning and personal care product manufacturing 3 industry" means an association that represents companies that 4 manufacture household cleaning and personal care products.5 (12) "Licensee" means a manufacturer or entity who licenses a 6 brand and manufactures a covered product under that brand.7 (13) "Oral nutritional supplement" means a manufactured liquid, 8 powder capable of being reconstituted, or solid product that contains 9 a combination of carbohydrates, proteins, fats, fiber, vitamins, and 10 minerals intended to supplement a portion of a patient's nutrition 11 intake. 12 (14) "Plastic beverage container" means a bottle or other rigid 13 container that is capable of maintaining its shape when empty, 14 comprised solely of one or multiple plastic resins designed to 15 contain a beverage. Plastic beverage container does not include:16 (a) Refillable beverage containers, such as containers that are 17 sufficiently durable for multiple rotations of their original or 18 similar purpose and are intended to function in a system of reuse;19 (b) Rigid plastic containers or plastic bottles that are or are 20 used for medical devices, medical products that are required to be 21 sterile, nonprescription and prescription drugs, or dietary 22 supplements as defined in RCW 82.08.0293; 23 (c) Bladders or pouches that contain wine; ((or))24 (d) Liners, caps, corks, closures, labels, and other items added 25 externally or internally but otherwise separate from the structure of 26 the bottle or container ; or27 (e) Other covered products subject to minimum postconsumer 28 recycled content requirements . 29 (15)(a) "Plastic household cleaning and personal care product 30 container" means a bottle, jug, or other rigid container with a neck 31 or mouth narrower than the base, and: 32 (i) A minimum capacity of eight fluid ounces or its equivalent 33 volume; 34 (ii) A maximum capacity of five fluid gallons or its equivalent 35 volume; 36 (iii) That is capable of maintaining its shape when empty;37 (iv) Comprised solely of one or multiple plastic resins; and38 (v) Containing a household cleaning or personal care product.39 p. 8 SB 5658 (b) "Plastic household cleaning and personal care product 1 container" does not include: 2 (i) Refillable household cleaning and personal care product 3 containers, such as containers that are sufficiently durable for 4 multiple rotations of their original or similar purpose and are 5 intended to function in a system of reuse; ((and))6 (ii) Rigid plastic containers or plastic bottles that are medical 7 devices, medical products that are required to be sterile, and 8 nonprescription and prescription drugs, dietary supplements as 9 defined in RCW 82.08.0293, and packaging used for those products ; and10 (iii) Other covered products subject to minimum postconsumer 11 recycled content requirements . 12 (16) "Plastic trash bag" means a bag that is made of 13 noncompostable plastic, is at least 0.70 mils thick, and is designed 14 and manufactured for use as a container to hold, store, or transport 15 materials to be discarded or recycled, and includes, but is not 16 limited to, a garbage bag, recycling bag, lawn or leaf bag, can liner 17 bag, kitchen bag, or compactor bag. "Plastic trash bag" does not 18 include any compostable bags meeting the requirements of chapter 19 70A.455 RCW . 20 (17) "Plastic trash bag manufacturing industry" means an 21 association that represents companies that manufacture plastic trash 22 bags. 23 (18) "Postconsumer recycled content" means the content of a 24 covered product made of recycled materials derived specifically from 25 recycled material generated by households or by commercial, 26 industrial, and institutional facilities in their role as end users 27 of a product that can no longer be used for its intended purpose. 28 "Postconsumer recycled content" includes returns of material from the 29 distribution chain. 30 (19)(a) "Producer" means the following person responsible for 31 compliance with minimum postconsumer recycled content requirements 32 under this chapter for a covered product sold, offered for sale, or 33 distributed in or into this state: 34 (i) If the covered product is sold under the manufacturer's own 35 brand or lacks identification of a brand, the producer is the person 36 who manufactures the covered product; 37 (ii) If the covered product is manufactured by a person other 38 than the brand owner, the producer is the person who is the licensee 39 of a brand or trademark under which a covered product is sold, 40 p. 9 SB 5658 offered for sale, or distributed in or into this state, whether or 1 not the trademark is registered in this state, unless the 2 manufacturer or brand owner of the covered product has agreed to 3 accept responsibility under this chapter; or 4 (iii) If there is no person described in (a)(i) and (ii) of this 5 subsection over whom the state can constitutionally exercise 6 jurisdiction, the producer is the person who imports or distributes 7 the covered product in or into the state. 8 (b) "Producer" does not include: 9 (i) Government agencies, municipalities, or other political 10 subdivisions of the state; 11 (ii) Registered 501 (c)(3) charitable organizations and 501 (c)(4) 12 social welfare organizations; or 13 (iii) De minimis producers that annually sell, offer for sale, 14 distribute, or import in or into the country for sale in Washington:15 (A) Less than one ton of a single category of plastic beverage 16 containers, plastic household cleaning and personal care containers, 17 ((or)) plastic trash bags , plastic tubs, thermoform plastic 18 containers, or single-use plastic cups each year; or19 (B) A single category of a covered product that in aggregate 20 generates less than $1,000,000 each year in revenue.21 (20)(a) "Retail establishment" means any person, corporation, 22 partnership, business, facility, vendor, organization, or individual 23 that sells or provides merchandise, goods, or materials directly to a 24 customer. 25 (b) "Retail establishment" includes, but is not limited to, food 26 service businesses, grocery stores, department stores, hardware 27 stores, home delivery services, pharmacies, liquor stores, 28 restaurants, catering trucks, convenience stores, or other retail 29 stores or vendors, including temporary stores or vendors at farmers 30 markets, street fairs, and festivals. 31 (21)(a) "Utensil" means a product designed to be used by a 32 consumer to facilitate the consumption of food or beverages, 33 including knives, forks, spoons, cocktail picks, chopsticks, splash 34 sticks, and stirrers. 35 (b) "Utensil" does not include plates, bowls, cups, and other 36 products used to contain food or beverages. 37 (22)(a) "Plastic tub" means a wide mouth rigid container, used to 38 package consumable or durable goods that reach consumers, with a 39 maximum capacity of 50 ounces, that is:40 p. 10 SB 5658 (i) Capable of maintaining its shape when empty;1 (ii) Comprised solely of one or multiple plastic resins and 2 designed to contain a product; and3 (iii) Sealed with tamper-proof film or a detachable lid capable 4 of multiple openings and closures.5 (b) "Plastic tub" does not include:6 (i) Household cleaning and personal care products;7 (ii) Plastic containers that are or are used for medical devices, 8 medical products that are required to be sterile, nonprescription and 9 prescription drugs, or dietary supplements as defined in RCW 10 82.08.0293;11 (iii) Thermoform plastic containers;12 (iv) Single-use plastic cups; and13 (v) Other covered products subject to minimum postconsumer 14 recycled content requirements.15 (23)(a) "Single-use plastic cup" means a nonsealed, beverage 16 serving cup comprised solely of one or multiple plastic resins.17 (b) "Single-use plastic cup" does not include:18 (i) Commercially or home compostable cups;19 (ii) Plastic lined fiber cups, also known as composite cups;20 (iii) Household cleaning and personal care products;21 (iv) Plastic tubs;22 (v) Refillable containers, such as containers that are 23 sufficiently durable for multiple rotations of their original or 24 similar purpose and are intended to function in a system of reuse;25 (vi) Plastic cups that are or are used for medical devices, 26 medical products that are required to be sterile, nonprescription and 27 prescription drugs, or dietary supplements as defined in RCW 28 82.08.0293; and29 (vii) Other covered products subject to minimum postconsumer 30 recycled content requirements.31 (24)(a) "Thermoform plastic container" means a clear or colored 32 plastic container, such as a clamshell, lid, tray, egg carton, or 33 similar rigid, nonbottle packaging, formed from sheets of extruded 34 plastic resin and used to package consumable or durable goods that 35 reach consumers, including:36 (i) Hinged plastic containers, commonly known as "clamshells" or 37 "blister packaging";38 (ii) Two-piece unhinged containers;39 (iii) One-piece containers without lids, such as trays; and40 p. 11 SB 5658 (iv) Trifold or tent containers with one or more hinges and a 1 flat bottom.2 (b) "Thermoform plastic container" does not include:3 (i) Household cleaning and personal care products;4 (ii) Plastic tubs;5 (iii) Refillable containers, such as containers that are 6 sufficiently durable for multiple rotations of their original or 7 similar purpose and are intended to function in a system of reuse;8 (iv) A lid or seal of a different material type from plastic;9 (v) A refillable thermoform plastic container that ordinarily 10 would be returned to the manufacturer to be refilled and resold;11 (vi) Plastic containers that are or are used for medical devices, 12 medical products that are required to be sterile, nonprescription and 13 prescription drugs, or dietary supplements as defined in RCW 14 82.08.0293;15 (vii) Other covered products subject to minimum postconsumer 16 recycled content requirements; and17 (viii) Thermoform plastic containers accompanying a durable good 18 when the durable good model, and the associated packaging, was 19 designed prior to January 1, 2025.20 Sec. 8. RCW 70A.245.020 and 2021 c 313 s 3 are each amended to 21 read as follows: 22 (1)(a) Beginning January 1, 2023, producers that offer for sale, 23 sell, or distribute in or into Washington: 24 (i) Beverages other than wine in 187 milliliter plastic beverage 25 containers and dairy milk in plastic beverage containers must meet 26 minimum postconsumer recycled content requirements established under 27 subsection (4) of this section; and 28 (ii) Plastic trash bags must meet minimum postconsumer recycled 29 content requirements established under subsection (6) of this 30 section. 31 (b) Beginning January 1, 2025, producers that offer for sale, 32 sell, or distribute in or into Washington household cleaning and 33 personal care products in plastic household cleaning and personal 34 care product containers must meet minimum postconsumer recycled 35 content as required under subsection (5) of this section.36 (c) Beginning January 1, 2026, producers that offer for sale, 37 sell, or distribute in or into Washington products contained in 38 plastic tubs or thermoform plastic containers must meet minimum 39 p. 12 SB 5658 postconsumer recycled content as required under subsection (7) of 1 this section. 2 (d) Beginning January 1, 2028, producers that offer for sale, 3 sell, or distribute in or into Washington wine in 187 milliliter 4 plastic beverage containers or dairy milk in plastic beverage 5 containers must meet minimum postconsumer recycled content as 6 required under subsection (4) of this section. 7 (e) Beginning January 1, 2029, producers that offer for sale, 8 sell, or distribute in or into Washington single-use plastic cups 9 must meet minimum postconsumer recycled content as required under 10 subsection (8) of this section.11 (2)(a) ((On)) (i) Except as provided in (a)(ii) of this 12 subsection, on or before April 1, 2022, and annually thereafter, a 13 producer that offers for sale, sells, or distributes in or into 14 Washington covered products must register with the department 15 individually or through a third-party representative registering on 16 behalf of a group of producers. 17 (ii) A producer that offers for sale, sells, or distributes in or 18 into Washington single-use plastic cups or products in plastic tubs 19 or thermoform plastic containers must register with the department 20 individually or through a third-party representative registering on 21 behalf of a group of producers on or before April 1, 2023.22 (b) The registration information submitted to the department 23 under this section must include a list of the producers of covered 24 products and the brand names of the covered products represented in 25 the registration submittal. Beginning April 1, 2024, for plastic 26 trash bags and plastic beverage containers other than wine in 187 27 milliliter plastic beverage containers and dairy milk in plastic 28 beverage containers, April 1, 2026, for plastic household and 29 personal care product containers, ((and)) April 1, 2027, for plastic 30 tubs and thermoform plastic containers, April 1, 2029, for wine in 31 187 milliliter plastic beverage containers and dairy milk, and April 32 1, 2030, for single-use plastic cups, a producer may submit 33 registration information at the same time as the information 34 submitted through the annual reporting required under RCW 35 70A.245.030. 36 (3)(a) By January 31, 2022, and every January 31st thereafter, 37 the department must: 38 (i) Prepare an annual workload analysis for public comment that 39 identifies the annual costs it expects to incur to implement, 40 p. 13 SB 5658 administer, and enforce this section and RCW 70A.245.030 through 1 70A.245.060 and 70A.245.090 (1), (2), and (4), including rule making, 2 in the next fiscal year for each category of covered products;3 (ii) Determine a total annual fee payment by producers or their 4 third-party representatives for each category of covered products 5 that is adequate to cover, but not exceed, the workload identified in 6 (a)(i) of this subsection; 7 (iii) Until rules are adopted under (a)(iv) of this subsection, 8 issue a general order to all entities falling within the definition 9 of producer. The department must equitably determine fee amounts for 10 an individual producer or third-party representatives within each 11 category of covered product; 12 (iv) By 2024, adopt rules to equitably determine annual fee 13 payments by producers or their third-party representatives within 14 each category of covered product. Once such rules are adopted, the 15 general order issued under (a)(iii) of this subsection is no longer 16 effective; and 17 (v) Send notice to producers or their third-party representatives 18 of fee amounts due consistent with either the general order issued 19 under (a)(iii) of this subsection or rules adopted under (a)(iv) of 20 this subsection. 21 (b) The department must: 22 (i) Apply any remaining annual payment funds from the current 23 year to the annual payment for the coming year, if the collected 24 annual payment exceeds the department's costs for a given year; and25 (ii) Increase annual payments for the coming year to cover the 26 department's costs, if the collected annual payment was less than the 27 department's costs for a given year. 28 (c) ((By)) (i) Except as provided in (c)(ii) of this subsection, 29 by April 1, 2022, and every April 1st thereafter, producers or their 30 third-party representative must submit a fee payment as determined by 31 the department under (a) of this subsection. 32 (ii) Producers of single-use plastic cups or products in plastic 33 tubs or thermoform plastic containers, or their third-party 34 representative must submit a fee payment as determined by the 35 department under (a) of this subsection by April 1, 2023, and every 36 April 1st thereafter.37 (4) A producer of a beverage in a plastic beverage container must 38 meet the following annual minimum postconsumer recycled content 39 percentage on average for the total quantity of plastic beverage 40 p. 14 SB 5658 containers, by weight, that are sold, offered for sale, or 1 distributed in or into Washington by the producer effective:2 (a) For beverages except wine in 187 milliliter plastic beverage 3 containers and dairy milk: 4 (i) January 1, 2023, through December 31, 2025: No less than 15 5 percent postconsumer recycled content plastic by weight;6 (ii) January 1, 2026, through December 31, 2030: No less than 25 7 percent postconsumer recycled content plastic by weight; and8 (iii) On and after January 1, 2031: No less than 50 percent 9 postconsumer recycled content plastic by weight. 10 (b) For wine in 187 milliliter plastic beverage containers and 11 dairy milk: 12 (i) January 1, 2028, through December 31, 2030: No less than 15 13 percent postconsumer recycled content plastic by weight;14 (ii) January 1, 2031, through December 31, 2035: No less than 25 15 percent postconsumer recycled content plastic by weight; and16 (iii) On and after January 1, 2036: No less than 50 percent 17 postconsumer recycled content plastic by weight. 18 (5) A producer of household cleaning and personal care products 19 in plastic containers must meet the following annual minimum 20 postconsumer recycled content percentage on average for the total 21 quantity of plastic containers, by weight, that are sold, offered for 22 sale, or distributed in or into Washington by the producer effective:23 (a) January 1, 2025, through December 31, 2027: No less than 15 24 percent postconsumer recycled content plastic by weight;25 (b) January 1, 2028, through December 31, 2030: No less than 25 26 percent postconsumer recycled content plastic by weight; and27 (c) On and after January 1, 2031: No less than 50 percent 28 postconsumer recycled content plastic by weight. 29 (6) A producer of plastic trash bags must meet the following 30 annual minimum postconsumer recycled content percentage on average 31 for the total quantity of plastic trash bags, by weight, that are 32 sold, offered for sale, or distributed in or into Washington by the 33 producer effective: 34 (a) January 1, 2023, through December 31, 2024: No less than 10 35 percent postconsumer recycled content plastic by weight;36 (b) January 1, 2025, through December 31, 2026: No less than 15 37 percent postconsumer recycled content plastic by weight; and38 (c) On and after January 1, 2027: No less than 20 percent 39 postconsumer recycled content plastic by weight. 40 p. 15 SB 5658 (7) A producer of a product in a plastic tub or thermoform 1 plastic container must meet the following annual minimum postconsumer 2 recycled content percentage on average for the total quantity of 3 plastic tubs or thermoform plastic containers, by weight, that are 4 sold, offered for sale, or distributed in or into Washington by the 5 producer effective:6 (a) January 1, 2026, through December 31, 2030: No less than 10 7 percent postconsumer recycled content plastic by weight;8 (b) On and after January 1, 2031: No less than 30 percent 9 postconsumer recycled content plastic by weight.10 (8) A producer of single-use plastic cups must meet the following 11 annual minimum postconsumer recycled content percentage on average 12 for the total quantity of single-use plastic cups, by weight, that 13 are sold, offered for sale, or distributed in or into Washington by 14 the producer effective:15 (a) January 1, 2029, through December 31, 2030: No less than 15 16 percent postconsumer recycled content plastic by weight; and17 (b) On and after January 1, 2031: No less than 30 percent 18 postconsumer recycled content plastic by weight.19 (9)(a) Beginning January 1, 2024, or when rule making is 20 complete, whichever is sooner, the department may, on an annual basis 21 on January 1st, review and determine for the following year whether 22 to adjust the minimum postconsumer recycled content percentage 23 required for a type of container or product or category of covered 24 products pursuant to subsection (4), (5), ((or)) (6), (7), or (8) of 25 this section. The department's review may be initiated by the 26 department or at the petition of a producer or a covered product 27 manufacturing industry not more than once annually. When submitting a 28 petition, producers or a producer manufacturing industry must provide 29 necessary information that will allow the department to make a 30 determination under (b) of this subsection. 31 (b) In making a determination pursuant to this subsection, the 32 department must consider, at a minimum, all of the following factors:33 (i) Changes in market conditions, including supply and demand for 34 postconsumer recycled content plastics, collection rates, and bale 35 availability both domestically and globally; 36 (ii) Recycling rates; 37 (iii) The availability of recycled plastic suitable to meet the 38 minimum postconsumer recycled content requirements pursuant to 39 subsection (4), (5), ((or)) (6), (7) or (8) of this section, 40 p. 16 SB 5658 including the availability of high quality recycled plastic, and 1 food-grade recycled plastic from recycling programs;2 (iv) The capacity of recycling or processing infrastructure;3 (v) The technical feasibility of achieving the minimum 4 postconsumer recycled content requirements in covered products that 5 are regulated under 21 C.F.R., chapter I, subchapter G, 7 U.S.C. Sec. 6 136, 15 U.S.C. Sec. 1471-1477, 49 C.F.R. Sec. 178.33b, 49 C.F.R. Sec. 7 173, 40 C.F.R. Sec. 152.10, 15 U.S.C. Sec. 1261-1278, 49 U.S.C. 5101 8 et seq., 49 C.F.R. Sec. 178.509, 49 C.F.R. Sec. 179.522, 49 C.F.R. 9 Sec. 178.600-609, and other federal laws; and 10 (vi) The progress made by producers in achieving the goals of 11 this section. 12 (c) Under (a) of this subsection: 13 (i) The department may not adjust the minimum postconsumer 14 recycled content requirements above the minimum postconsumer recycled 15 content percentages for the year under review required pursuant to 16 subsection (4), (5), ((or)) (6), (7), or (8) of this section.17 (ii) For plastic household cleaning and personal care product 18 containers, the department may not adjust the minimum postconsumer 19 recycled content requirements above the minimum postconsumer recycled 20 content percentages for the year under review required pursuant to 21 subsection (5) of this section or below a minimum of 10 percent.22 (iii) For plastic trash bags, the department may not adjust the 23 minimum postconsumer recycled content requirements above the minimum 24 postconsumer recycled content percentages for the year under review 25 required pursuant to subsection (6) of this section or below the 26 minimum percentage required in subsection (6)(a) of this section.27 (d) A producer or the manufacturing industry for a covered 28 product may appeal a decision by the department to adjust 29 postconsumer recycled content percentages under (a) of this 30 subsection or to temporarily exclude covered products from minimum 31 postconsumer recycled content requirements under subsection (((8))) 32 (10) of this section to the pollution control hearings board within 33 30 days of the department's determination. 34 (((8))) (10) The department must temporarily exclude from minimum 35 postconsumer recycled content requirements for the upcoming year any 36 types of covered products in plastic containers for which a producer 37 annually demonstrates to the department by December 31st of a given 38 year that the achievement of postconsumer recycled content 39 requirements in the container material is not technically feasible in 40 p. 17 SB 5658 order to comply with health or safety requirements of federal law, 1 including the federal laws specified in subsection (((7))) (9)(b)(v) 2 of this section. A producer must continue to register and report 3 consistent with the requirements of this chapter for covered products 4 temporarily excluded from minimum postconsumer recycled content 5 requirements under this subsection. 6 (((9))) (11) A producer that does not achieve the postconsumer 7 recycled content requirements established under this section is 8 subject to penalties established in RCW 70A.245.040.9 (((10))) (12)(a) A city, town, county, or municipal corporation 10 may not implement local recycled content requirements for a covered 11 product that is subject to minimum postconsumer recycled content 12 requirements established in this section. 13 (b) A city, town, county, or municipal corporation may establish 14 local purchasing requirements that include recycled content standards 15 that exceed the minimum recycled content requirements established by 16 this chapter for plastic household cleaning and personal care product 17 containers or plastic trash bags purchased by a city, town, or 18 municipal corporation, or its contractor. 19 (((11))) (13) The department may enter into contracts for the 20 services required to implement this chapter and related duties of the 21 department. 22 (((12))) (14) In-state distributors, wholesalers, and retailers 23 in possession of covered products manufactured before the date that 24 postconsumer recycled content requirements become effective may 25 exhaust their existing stock through sales to the public.26 Sec. 9. RCW 70A.245.030 and 2021 c 313 s 4 are each amended to 27 read as follows: 28 (1)(a) Except as provided in (b) ((and)), (c), (d), and (e) of 29 this subsection, beginning April 1, 2024, each producer of covered 30 products, individually or through a third party representing a group 31 of producers, must provide an annual report to the department that 32 includes the amount in pounds of virgin plastic and the amount in 33 pounds of postconsumer recycled content by resin type used for each 34 category of covered products that are sold, offered for sale, or 35 distributed in or into Washington state, including the total 36 postconsumer recycled content resins as a percentage of total weight. 37 The report must be submitted in a format and manner prescribed by the 38 department. A manufacturer may submit national data allocated on a 39 p. 18 SB 5658 per capita basis for Washington to approximate the information 1 required in this subsection if the producer or third-party 2 representative demonstrates to the department that state level data 3 are not available or feasible to generate. 4 (b) The requirements of (a) of this subsection apply to household 5 cleaning and personal care products in plastic containers beginning 6 April 1, 2026. 7 (c) The requirements of (a) of this subsection apply to wine in 8 187 milliliter plastic beverage containers and dairy milk in plastic 9 beverage containers beginning April 1, 2029. 10 (d) The requirements of (a) of this subsection apply to plastic 11 tubs and thermoform plastic containers beginning April 1, 2027.12 (e) The requirements of (a) of this subsection apply to single-13 use plastic cups beginning April 1, 2030.14 (f) The department must post the information reported under this 15 subsection on its website, except as provided in subsection (2) of 16 this section. 17 (2) A producer that submits information or records to the 18 department under this chapter may request that the information or 19 records be made available only for the confidential use of the 20 department, the director, or the appropriate division of the 21 department. The director of the department must give consideration to 22 the request and if this action is not detrimental to the public 23 interest and is otherwise in accordance with the policies and 24 purposes of chapter 43.21A RCW, the director must grant the request 25 for the information to remain confidential as authorized in RCW 26 43.21A.160. 27 NEW SECTION. Sec. 10. Sections 1 through 6 of this act 28 constitute a new chapter in Title 70A RCW.29 --- END --- p. 19 SB 5658