Virginia lawmakers reach 'great polystyrene compromise,' pass EPS ban, chemical recycling law

Virginia legislators have struck what one lawmaker is calling "the great polystyrene compromise of 2021" that would ban expanded PS food containers in return for giving the industry new rules it wants for chemical recycling plants in the state.

Separate bills that banned EPS takeout food packaging and supported chemical recycling had each run into problems in the state capitol in Richmond, but lawmakers have struck an agreement allowing both to move ahead, with a delay in the EPS ban until at least 2023.

"This is part of a large compromise," said state Sen. John Petersen, D-Fairfax, in a floor debate on the EPS ban. "To the extent that we get this [EPS ban] bill off the floor and pass it, I think it's important that there will be a reciprocal understanding. … The recycling industry needs to be respected."

Shortly after Petersen's comments, the state Senate passed the EPS ban bill Feb. 17 on a 21-16 vote. Virginia's House of Delegates had passed a similar foam ban in January, on a 58-40 vote.

Following the compromise agreement, the state House then passed the chemical recycling law Feb. 22 in a 90-8 vote. The state Senate had already approved it in early February.

The Virginia agreement marries two measures that have been gaining ground separately in other states, and it may be the first time that support for chemical recycling legislation is explicitly linked to a plastics ban.

Virginia joins states including Maine, Maryland and New York in banning EPS food packaging. Conversely, it joins nine other states in passing legislation supporting chemical, or advanced, recycling.

The state's EPS bill requires larger chain restaurants to stop using the containers by July 1, 2023, with smaller restaurants, food trucks and others having to comply by July 1, 2025.

Petersen, who used the "great polystyrene compromise" language, argued that the EPS ban is needed "to make a commitment about basically getting this product out of our waste stream."

He said he opposed the EPS bill when it came close to passing last year but told his colleagues he had changed position and was pushing it through this year because the main author, Del. Betsy Carr, D-Richmond, had moved back the compliance dates.

Petersen said he saw it as a "tough issue" because restaurants widely use the material, but he said he thought companies could find alternatives and he pointed to problems with polystyrene recyclability.

"I think the best explanation is, in America, ingenuity fills a vacuum," Petersen said. "We have a product in [foam] that contributes to pollution in a way that really no other plastic waste does. It's not recyclable."

But others in the chamber argued for the recyclability of PS. Sen. Mark Obenshain, R-Harrisonburg, for example, said that "to the extent that anybody believes that there is no recycling solution, you're wrong, absolutely wrong."

As well, Sen. Jen Kiggans, R-Virginia Beach, worried about removing an inexpensive packaging material from restaurants, saying that when she gets takeout food, "the places that give me the ... foam containers are the places that are struggling the most right now."

Environmental Protection Agency figures show that just 3.6 percent of polystyrene packaging was recycled in 2018, the last year statistics are available.

That's well below the 13.6 percent for all plastic containers and packaging and the 25.4 percent for PET packaging, the highest for plastics in the EPA data.

The companion legislation supporting chemical, or advanced, recycling would allow those plants to be built in Virginia without needing permits as a solid waste management facility. They would instead be treated as manufacturing plants.

While it passed with wide margins after the compromise, the chemical recycling language had run into strong opposition from environmental groups and at one point in early February had been formally withdrawn by its sponsor, state Del. Ken Plum, D-Reston, before resurfacing.

Plum, who heads the House committee overseeing natural resource legislation, argued the chemical recycling bill would lead to more investment in recycling,

He pointed to a 2020 announcement from Braven Environmental LLC, to build a $32 million facility for take waste plastics and turn them into fuels or plastics in Cumberland County, about 50 miles west of Richmond.

"I'm not talking about water bottles and so on. I'm talking about potato chip bags and other nuisance plastics that you don't know how to recycle and turn it into a low-carbon fuel," he said. "By recognizing it, we allow these companies to attract more investors … and apply for Department of Energy and [Environmental Protection Agency] grants that are available to further the cost of cleaning up our waste system."

The chemical recycling provisions had attracted significant interest in the legislative debate.

Business groups said in formal comments to lawmakers that it would strengthen markets for the state's curbside recycling programs, while environmental organizations urged other solutions to plastic waste.

The group Environment Virginia, for example, said chemical recycling technologies have not been successful in turning the waste plastic back into new plastic, and instead have largely been used to make fuels, which it argued is not a good direction for state recycling policy.

"Despite claims to create like-new plastic products, the industry has almost exclusively employed technologies to convert or 'downcycle' plastics into fossil fuels," the group said, advocating for bottle bills.

As well, the top scientist at the Virginia Aquarium and Marine Science Center told lawmakers that his organization and others in the Virginia Conservation Network oppose chemical recycling plants because they also emit pollutants.

"These plants are ineffective in addressing plastic waste production and pollution and produce harmful wastes and greenhouse gas emissions," said Mark Swingle, chief of research. "The most effective way to prevent plastic pollution … is to reduce plastic production and use, and we have many other key opportunities to do just that."

But the provision drew support from groups representing recyclers, restaurants and local chambers of commerce in the state.

The Virginia Recycling Association, for example, said it supported classifying chemical recycling facilities as manufacturing plants in regulations, rather than waste management facilities. And it suggested the changes would help bolster markets.