Industry, environmentalists concerned about implementation of California's reusable bag law

Plastic bag makers, recyclers and environmentalists are expressing concerns about California's implementation of reusable-bag-law regulations.

Consternation exists about how the state regulatory agency CalRecycle will proceed with its rulemaking for SB 270.

Some of those thoughts were aired during two key sessions at the Western Plastics Association's annual conference.

Separately, a private lawyer's related public-interest litigation about processor and distributor compliance is pending in a Los Angeles court.

For its next step, CalRecycle will hold a 2 p.m. Aug. 15 workshop in Sacramento and broadcast the event live in audio and video formats.

The law has a lengthy history.

Gov. Jerry Brown signed SB 270 effective Sept. 30, 2014, banning single-use carryout plastic grocery bags and establishing CalRecycle's reusable grocery bag program.

Starting July 1, 2015, a store-sold or -distributed reusable plastic grocery bag needed to have capability to carry 22 pounds over a distance of 175 feet for a minimum of 125 uses and have a thickness of at least 2.25 mils.

Effective Jan. 1, 2016, under the law, a reusable plastic bag needed to be made with a minimum of 20 percent post-consumer material. That percentage increases to 40 percent on Jan. 1, 2020, posing new technical challenges for processors.

In a November 2016 referendum on Proposition 67, California voters upheld the provisions of SB 270 with 53 percent of the vote. That action put the law into full effect requiring plastic bags to be reusable and directing that retailers charge for paper and reusable bags.

Another 2016 measure, Proposition 65, failed at the polls receiving 46 percent of the vote. It would have redirected funds from plastic bag sales to environmental projects.

CalRecycle is obligated to maintain a list of certified manufacturers qualified to sell bags in the state.

Getting the reusable bag program implemented is proving arduous and vexatious.

CalRecycle held an informal public workshop about SB 270 on Oct. 25, 2017, and Scott Smithline, the agency's director, approved a draft of the regulations to certify renewable bags on March 20.

The state's Office of Administrative Law published a notice of the proposals June 15. That began a formal 45-day public comment period.

At least 13 plastic bag producers and one non-profit have filed comments.

CalRecycle wants to submit final regulations and get OAL's approval in early 2019 and have certification fees in place by July 2019.

The California Environmental Protection Agency's Department of Resources Recycling and Recovery operates as CalRecycle with focus on the state's waste management, recycling and waste-reduction programs.

The Aug. 15 workshop is under the auspices of the department's materials management and local assistance division.

If major changes are contemplated, CalRecycle would provide an additional 45-day comment period.

“While the proposed regulations are primarily technical and non-controversial, there is growing frustration on the part of the environmental community that CalRecycle has been delayed and employed insufficient resources in enforcement of the statutory provisions,” said Mark Murray, executive director of the Sacramento-based environmental advocacy group Californians Against Waste.

“While these statutory provisions have been the law since December 2016, we believe that non-compliant bags are being distributed at some stores in California,” Murray noted via email. “We have obtained a collection of ‘so-called reusable bags' from stores in California and made efforts to contact the manufacturers to seek demonstration of compliance with both the durability requirements and the post-consumer recycled content requirements.”

Murray envisions “pressure on CalRecycle from recyclers, enviro's and even some bag manufacturers to ensure that the use of 20-percent PCR [post-consumer resin] in reusable bags is verifiable. It's not clear that the current ‘draft' regulation accomplish that.”

CAW will offer specific recommendations.

In a letter to CalRecycle, CAW noted on behalf of 10 interested parties: “The fee, as proposed, would require all bag manufacturers who wish to participate in the California's reusable bag market to pay the same amount, which would harm small manufacturers relative to the larger manufacturers. The result will be a small number of bag manufacturers dominating the state's reusable bag market. The estimated initial certification fee of $20,232 is so high that many small manufacturers will be forced to abandon the marketplace.”

Murray suggested that, under those circumstances, CalRecycle might not be able to recoup its administrative costs.

Here is a sampling of other messages that are posted on the CalRecycle website seeking clarifications and expressing concerns.

One producer commented: “We cannot believe our bags could be considered illegal under California law while lower-quality less sustainable bags are compliant.”

Another cited an inconsistency: “The language of the law was clearly a technical oversight by lawmakers as grams per square meter is a measurement used for non-woven material and is not commonly used for describing woven materials.”

A processor with a long history of involvement asked CalRecycle six highly detailed questions about the proposed regulations' technical definitions, certification requirements and proposed fee schedule.

On Dec. 27 in a public-interest action, Los Angeles-based lawyer Stephen Joseph sued 26 plastic bag processors and distributors “to make sure everyone is in compliance” with SB 270.

Joseph notes that CalRecycle is the regulator but lacks enforcement powers. Enforcement is delegated to the California attorney general and each county's district attorney.

Joseph did not sue other processors or distributors whom he perceived as being in, or moving toward, compliance with SB 270.

A courtroom conference to set a trial date for the litigation is scheduled Aug. 22 before Judge Amy Hogue in Los Angeles Superior Court.

The legal actions caused concern among WPA members.

“I have been working with all attorneys [for the defendants] explaining what they need to do” to comply, he said in a telephone interview. “I give companies every opportunity to come into compliance [and] to make sure they get it.”

So far, he has seen fit to dismiss or withdraw his complaint against three cooperating defendants.

If Joseph can “get everyone into compliance, it would be nice not to have a trial,” he said.

Joseph noted, “The purpose is to get companies to comply because CalRecycle has not been enforcing the law.” He disavows intentions to disqualify companies.

Mainly, Joseph disagrees with CalRecycle about how the state is going through the process.

Joseph and an associate formed a Coalition to Enforce SB 270 last year. The coalition has no corporate members or clients although Joseph does unrelated legal work for companies in the plastics industry.

Joseph wants his CalRecycle-compliance campaign to emulate the widespread success of his effort, starting in 2003, to ban trans-unsaturated fatty acids from processed foods.

SB 270 program lead Paulina Kolic presented CalRecycle's somewhat-contentious plans in a presentation at the May 21-23 WPA conference in Sonoma, Calif.

Kolic acknowledged the vigorous early stakeholder feedback, the issue of repetitive certification for print and color changes, the certification-fee concerns, accreditation requirements under ISO/IEC 17025 for testing and calibration laboratories and the dry/wet washing provision for PCR resin.

In a separate session, Laurie Hansen, WPA executive and legislative director, posed questions to four panelists who dissected the nuances and potential impacts including challenges and opportunities.

As an undergraduate economics major, Catherine Brown learned, “Don't mess with the free market. The government is messing with the free market.”

Browne is general manager of bagging solutions provider Crown Poly Inc. of Huntington Park, Calif.

Under current mandates, “we comply and are placed at a competitive disadvantage,” Browne said.

Roxanne Spiekerman-Vaughan noted the lack of a useful test for PCR resin. She is executive vice president and general manager of Roplast Industries Inc. in Oroville, Calif.

It is “all with the chain of custody” of the PCR resin, Spiekerman-Vaughan said.

Robert Saric cited CalRecycle's inability to enforce SB 270. Saric is West Coast regional sales manager for Livingston, N.J.-based Inteplast Group Ltd.

“I sent a bag to the attorney general,” Saric said. “The processor was not on the list. Within 90 days, that processor went on the list. It's a free for all.”

Cherish Changala said, “The effort of Stephen Joseph has raised questions” about CalRecycle's regulatory actions. Changala is vice president of corporate marketing and communications for Delta Plastics of Little Rock, Ark., and Command Packaging of Vernon, Calif.

“We must work together as an industry and get people doing the right thing,” Changala said.

WPA, a Sacramento-based alliance of plastic processors, suppliers and downstream customers, characterizes itself as the voice of the plastics industry in the western U.S. states and Canadian provinces.

WPA's roots extend back to the California Film Extruders and Converters Association, which was formed in 1973 and primarily served the interests of the film and bag industry.