California Curbs Recycling Requirements in the Time of COVID-19

COVID-19 Update

Since California Governor Gavin Newsom issued his first Emergency Declaration in response to the COVID-19 pandemic on March 4, 2020, he has issued over 25 additional emergency orders covering a wide range of measures to curb the spread of the virus. On April 24, 2020, the Governor turned his focus to the recycling of waste beverage containers and reusable grocery bags during the COVID-19 pandemic in Executive Order N-54-20. For the next 60 days:

  • Retailers are relieved from taking back used beverage containers.
  • Recycling centers can operate under more flexible hours, subject to forthcoming guidelines from CalRecycle.
  • Retailers need not charge customers for reusable grocery bags or recycled paper bags at the point of sale.

California Beverage Container Recycling Program

For years, California has implemented a complicated and sometimes contentious beverage container recycling program—with aspects substantially different from programs in other states. Originally designed to prevent the landfilling of beverage containers, many California beverage retailers have taken issue with the burden and have expressed concerns about adequate space and sanitation with regard to the handling, accumulation and storage of returned empty containers. Until recently, under California’s program, beverage retailers have not typically served as the “first line” of beverage container recyclers. Historically, beverage retailers were relieved of container collection responsibilities as long as dedicated recycling centers were located within specified convenience zones where consumers could return containers for a refund of their deposit made at the time of purchase. 

In recent years, however, a widespread closure of independent recycling centers has occurred as commodity prices for recyclable materials have dropped and demand for deposit refunds has increased, coupled with illegal imports of used containers from outside of California. With the collapse of the economic model of stand-alone recycling centers, the state has turned to its authority, previously little used, to require beverage retailers to undertake the obligations of bottle and can redemption where a standalone recycling center is not located nearby. CalRecycle, the state agency responsible for managing the program, has recently initiated enforcement against retailers that allegedly have failed to provide beverage container take-back and redemption services after notice by the agency.

Enter the COVID-19 Pandemic

With the appearance of COVID-19, beverage retailers began expressing concern about and seeking relief from the responsibility of having to take back empty beverage containers at locations warranting strict hygiene measures, such as grocery stores and pharmacies. Although most other states suspended their beverage container take-back programs weeks ago due to COVID-19 concerns, California was curiously silent on the matter—until Friday, April 24, at which time Governor Newsom issued Executive Order N-54-20, which, among a wide variety of other actions, suspends for 60 days the requirement that beverage retailers take back containers. Moreover, during this 60-day period, recycling centers are no longer required to operate a statutorily required minimum number of hours per week or remain open during specific periods of time. Recycling centers will also be permitted to receive handling fees in accordance with guidelines to be developed and issued by CalRecycle by Monday, April 27, 2020. 

Suspension of Reusable Bag Charges and Single-Use Bags

In another development, the Governor’s order also suspends state statutory requirements regarding grocery bags. Since the advent of COVID-19, many California grocers have prohibited customers from bringing their own reusable bags when buying groceries, in order to avoid exposing employees and customers to the virus. This meant customers possibly had no alternative but to buy single-use bags. Accordingly, the new order suspends, for a period of 60 days, the state’s requirement that prohibits retail establishments from providing, without charge, reusable grocery bags or recycled paper bags to customers at point of sale, or providing single-use carryout bags to customers at point of sale. As such, consumers are not expected to bring their own reusable bags to retail or grocery stores and need not pay a single-use bag charge.

More to Come?

While the Governor’s order addressing particular recycling challenges in the era of COVID-19 may be modest, it may not be the last. The fallout from the COVID-19 crisis will likely continue to raise health-based and economic concerns over California’s aspirational recycling programs. Many solid waste and recycling service providers are facing cash flow problems due to the lack of service fees from the shuttering of commercial businesses and the economic distress of residential customers. California has adopted many aspirational recycling requirements, including that 75 percent of all solid waste must be recycled, rather than landfilled, by 2025. CalRecycle has estimated that the cost of meeting these recycling goals could be upward of $40 billion. Achieving these lofty goals has grown more difficult in the time of COVID-19. It’s unclear whether the state of California will have the appetite or budget to take on such an ambitious investment in the near future in light of the economic crisis posed by COVID-19. 

 
 
manatt-black

ATTORNEY ADVERTISING

pursuant to New York DR 2-101(f)

© 2020 Manatt, Phelps & Phillips, LLP.

All rights reserved