A petition filed by 11 business associations seeks to amend Oregon's definition of recycled to include any material intended for recycling - even if it ends up not being recycled.
The move has changed the air of cooperation between government and industry to boost recycling rates of rigid plastic containers back above the state-mandated level of 25 percent.
``The primary reason the recycling rate has dropped below 25 percent is because the system is failing,'' said Pat McCormick, a principal in Conkling, Fiskum and McCormick Inc., a public affairs, communications and research firm in Portland that represents the 11 associations. He contends the system fails to account for all the material businesses and consumers turn in to be recycled.
That's underscored, he said, in a state Department of Environmental Quality report on recycling rates that said close to 20 percent of containers recycled are mismanaged at Oregon's material-recovery facilities and end up being thrown away.
The coalition argues manufacturers would be in compliance if the plastic containers sent to MRFs annually but not recycled were counted. That amount - 1,700 tons - is equal to about 3 percentage points in the aggregate recycling rate.
``Why pose sanctions on manufacturers when there is little they can do to effect changes [at recycling facilities]?'' McCormick said, adding that the system has changed since the law was enacted. ``It has gone from separated streams to commingled recycling. And curbside recycling didn't exist. The language in the rules no longer matches the intent of the original legislation.''
Just last month, Peter Spendelow, a solid waste specialist with DEQ, had said he thought there was a good chance to improve the recycling rate and ``there has been nothing antagonistic'' from industry. He said DEQ still hopes to work with businesses and industry associations to establish programs and changes to boost the recycling rate.
But now the department is required to determine by mid-April whether to deny or accept the coalition's petition, which also would amend how recycled content in plastic containers is calculated. Comments were accepted through Feb. 12 and a hearing will be held Feb. 23.
``We are evaluating their proposals,'' Spendelow said. ``The question is whether material is recycled when you put it into a bin or when you make it into a product. Our definition has always been when you make it into a product and that we only count stuff as recycled when and if it is recycled. It would be precedent-setting to change that.''
The petition to amend the rules circumvents the state Legislature. This already has caused backlash in some corners, where it is seen it as an end-run around producer responsibility and meeting the state-mandated recycling rates.
``I can see why they would say, `Why should we be punished if material-recovery facilities don't recycle material properly?' '' said one source. ``But they will get some backlash for this'' and for not working more aggressively to boost recycling rates.
Officials of the American Chemistry Council in Arlington, Va. - one of the 11 members of the coalition - plan to meet with representatives of the six major MRFs in the state to recommend how they might capture more of the plastics in their stream.
The recycling rate was below 25 percent in 2004 and 2005. If DEQ determines the rate won't rise back to 25 percent by next January, plastic container manufacturers and companies that sell products in plastic containers will have to achieve compliance through other options - most likely by having 25 percent recycled content in each container.
The coalition also wants the Oregon rules to be amended to match the rigid plastic container recycling law in California, which permits both container manufacturers and companies that sell products in rigid plastic containers to meet recycled content by calculating the percentage across their entire product line, not on a product-by-product basis.
``We are proposing to simplify it, so it is the same,'' McCormick said. ``That would make it easier for manufacturers and for the state.''
Paul Cosgrove, a Portland lawyer who filed the petition and also represents the Soap & Detergent Association in Oregon, said he agreed. ``Requiring manufacturers to set up complicated, Oregon-only record-keeping and calculation systems is inappropriate and unjustified, especially since it results in no additional environmental benefits.''