California needs clear enforcement of its de facto ban on expanded polystyrene foodservice products within its new extended producer responsibility regulations, environmental groups say.
The ban is likely to be the first enforcement test of the sprawling new state EPR rules, environmental groups told regulators.
California's EPR law, Senate Bill 54, calls for EPS foodservice ware to achieve a 25 percent recycling rate by Jan. 1, 2025, which some see as a virtual impossibility, or be banned from sale in the state.
But an EPS industry group said it's not clear if polystyrene foodware will, in fact, be banned when SB 54 begins to be implemented in January. They argue the environmental impacts of alternatives, and their availability in the market, have not been fully studied.
"At the present moment, no one can definitively determine if polystyrene food service will be banned in California on January 1, 2025," said Betsy Bowers, executive director of the EPS Industry Association in Crofton, Md.
"A potentially more crucial question is whether anyone has explored alternative material options to ensure environmental benefits can truly be gained, and to determine if the market demand for paper alternatives can be met," she said.
The state agency CalRecycle is currently writing rules to implement the law and its many plastics provisions. The agency received public comments on its initial draft by a May 8 deadline.
Several environmental groups zeroed in on EPS foodservice, arguing that it will be the first test of how the law will be enforced because EPS faces recycling targets years before other materials.
"EPS foodservice ware has never been recycled at rates sufficient to meet these targets, and we do not believe that there is any chance of the rates being achieved by the soonest date in the statute," the group Californians Against Waste told CalRecycle.
"It is imperative that the department be prepared to take swift enforcement action on any producers that continue the sale of this material," CAW said. "Lack of enforcement would undermine implementation of the entire law and signal that noncompliance is an acceptable waste management posture."
CAW said the de facto EPS foodware ban will be the first test of SB 54's enforcement, and it said EPS is on a "fast track" compared with how other plastics are treated by the law.
Similarly, Ocean Conservancy and three other environmental groups said CalRecycle needs to spell out how it will respond when mandates in SB 54 are not met, specifically noting EPS targets.
They said CalRecycle should clarify how it will oversee an industry-led body, called a producer responsibility organization, that the law delegates with implementing much of the new EPR program.
"Overall, we recommend additional clarity on how the Department will notify the PRO and independent producers, as well as the public, when mandates are not met and what steps the Department will take to immediately take action to prohibit the sale of items that are out of compliance," the group wrote, along with Oceana, the Monterey Bay Aquarium and the Nature Conservancy.
"This is critically important … for the treatment of EPS foodservice ware under SB 54, which is subject to an earlier recycling rate mandate because of its disproportionate impacts on the environment and communities," they said. SB 54 allows fines of up to $50,000 a day for violating its provisions.
EPS-IA, however, questioned claims that EPS foodware has a bigger environmental impact than other materials, and it said the paper items that could replace it also contains styrene and has recycling challenges.
"CAW's claim that expanded polystyrene exhibits disproportionate impacts on the environment and communities is scientifically unfounded, especially concerning the amount of polystyrene in the residential waste stream, meaning a ban will not achieve a perceptible impact toward SB 54 goals," Bowers said. "It will be replaced by paper, which also contains styrene, also has food contamination and faces additional recycling challenges due to plastic or wax coatings."
SB 54 phases in its requirements on EPS sooner than for other plastics. After the 2025 target, EPS foodservice ware must hit a recycling rate of 30 percent by Jan. 1, 2028; 50 percent by Jan. 1, 2030; and 65 percent by Jan. 1, 2032, or face bans.
More broadly for all plastic packaging, the law requires recycling rates of 30 percent in 2028, rising to 65 percent by 2032. It requires 100 percent of the packaging to be recyclable or compostable. It also requires a 25 percent cut in single-use plastic packaging and foodservice ware.
Environmental groups said the law imposes stricter conditions on EPS foodservice because a statewide referendum that environmentalists wanted to put before voters had called for an EPS ban, and one of the conditions of withdrawing that ballot measure in favor of SB 54 was that the EPR law included an EPS ban.
But EPS-IA said proposals for an EPS statewide ban were unpopular and consistently defeated.
CAW called on CalRecycle to write clear rules for calculating EPS recycling rates, arguing that the state "should fully anticipate manufacturers deliberately obfuscating [recycling] results to continue selling their product as long as possible."
EPS-IA said the accusation that companies would intentionally falsify recycling rate information "is testimony to emotionally driven motivations devoid of fact" and called on groups to work on effective policy proposals.