Industry fears ‘heavy-handed' EPR in New Jersey bill

As New Jersey's Legislature becomes the latest to consider extended producer responsibility for plastics and packaging, fault lines are forming.

A top environmental legislator in Trenton is pressing industry to show detailed plans for how it would raise low plastics recycling rates.

Industry groups, for their part, worry about what one called "heavy-handed enforcement" from a new plastics office in state government and the possibility that legislators would raid $120 million in EPR funds to solve other budget problems.

That was some of the back-and-forth at a Jan. 31 hearing on the plan in New Jersey's Legislature, which has an established track record of passing other plastics environmental laws.

Since 2020, the state has banned plastic and paper retail bags and expanded polystyrene foodservice items and also passed one of the country's more detailed recycled-content mandates for plastic packaging.

Now it's joining others, including Washington state and Maryland, in considering EPR. New Jersey legislators debated another version last year.

The new draft of the EPR law from state Sen. Bob Smith, D-Piscataway, would require a 25 percent reduction in single-use packaging by 2032.

It also includes the possibility of criminal penalties and a new plastics management office in the government to monitor implementation, an industry lobbyist said.

"One of the new pieces that's concerning to us is this new Office of Plastics and Packaging Management," said Mary Ellen Peppard, a vice president of the New Jersey Food Council. "It does seem like there's going be a very heavy-handed enforcement [and] possible criminal penalties.

"This [bill] is extraordinarily complex, and we think it would be better served if the regulatory agencies are focused on education and … helping producers comply with this brand-new system," she said. The council represents food retailers.

But Smith, who heads the Senate Environment and Energy Committee and helped champion previous plastics laws in the state, said he was frustrated with the food council for not saying what it could do to increase plastics recycling.

He asked Peppard if the council would support a bottle bill, but when she said no, Smith said he wanted to see more specific proposals from industry.

"I would really love to have a definitive, detailed proposal from the food council on how to increase our plastics recycling," Smith said. "You can argue whether we're at 6 percent or 9 percent. … That's the rate of recycling for plastics in this country.

"Instead of being against everything, tell me what you're for," Smith said. "Not today, but I'd love a specific proposal from the food council."

Smith's new bill is a change from the EPR legislation introduced in 2022, with a longer rollout period.

The original bill required companies to develop packaging stewardship plans with the Department of Environmental Protection within 18 months of the law taking effect. But the new version pushes compliance back five years and prohibits companies from selling or distributing products unless they join a so-called producer responsibility organization that's approved by DEP to implement the law.

The new version also includes a statewide needs assessment of recycling infrastructure, something the first version did not have.

Many environmental groups testifying at the hearing told Smith and other lawmakers the bill needed to be stronger.

"It's heading in the right direction, but it needs some considerable changes so we have the most effective law possible," said Judith Enck, president of Beyond Plastics and a former regional administrator at the U.S. Environmental Protection Agency. "We are looking at plastic production doubling in the next 20 years, unless we do new laws and regulations to change that trajectory."

Enck said the bill should require a 50 percent reduction in single-use packaging by 2032, with phased-in targets, starting with a 10 percent reduction in two years and increasing after that.

"That way you can course correct if the companies are not reaching the requirements," Enck said. "This is achievable. I know 50 percent may sound ambitious, but the scope of the problem is so big. … We know we can recycle metal, glass, cardboard [and] paper, and it can be made from recycled content. When it comes to reduction, not enough companies are doing what we need on their own."

The new bill puts more specific requirements on the industry stewardship programs around methods and processes. The previous bill would have required single-use packaging to have 75 percent post-consumer content by Jan. 1, 2027.

Environmental groups like the Surfrider Foundation pushed lawmakers to have the EPR bill explicitly ban chemical recycling technologies for waste plastic.

"The definition of recycling as it stands in the bill right now … could leave the door open to chemical recycling, or as this industry sometimes calls it, advanced recycling," said John Weber, Surfrider's mid-Atlantic regional manager. "There's an opportunity here to explicitly prohibit it."

But a plastics industry representative pushed back, telling lawmakers that those technologies are needed to handle more waste plastic, particularly in demanding applications like medical devices and food packaging.

"I feel obligated to address the 100 percent falsehood about advanced recycling and chemical recycling in this conference room," said Dennis Hart, executive director of the Chemistry Council of New Jersey. "These facilities are good for the environment."

He argued that the state is still implementing its two other recent plastics laws and should proceed cautiously.

"This [EPR] legislation to me seems too massive, too overly bureaucratic and complicated, and it's way too soon," Hart said. "If passed as envisioned, it could have a … major negative impact on New Jersey's economy."

Industry groups also raised concerns about how EPR would be administered.

Peppard said the bill should give companies a stronger role in the operation of the PROs, which will implement the law, instead of state agencies.

"It's very department-centric perhaps," Peppard said. "We would like … there to be more control by the producers and more participation in the process, and the waste haulers and the recyclers."

Andy Hackman, a lobbyist for the packaging trade association Ameripen, expressed concern about the role of the needs assessment, the role of the PROs and the role of state agencies. And he questioned whether the bill would give enough protection for a "packaging reduction and recycling fund" set up by the bill that would raise an estimated $120 million over five years.

"Typically those funds are held by the producer responsibility organization," Hackman said. "If it's held in a state fund, will it be protected? Is it something that will be raided in a bad budget year?"