Advanced recycling bill goes to governor after ‘Great Polystyrene Compromise of 2021’

Legislation to classify chemical recycling as manufacturing rather than solid waste management is on its way to the governor despite early resistance from the House of Delegates. 

The hotly contested bill, which supporters say will encourage the repurposing of plastic waste while creating jobs and opponents say will allow the fledgling industry to sidestep regulation, passed the House Monday on a 90-8 vote. 

Key to its success was a move by lawmakers to yoke the advanced recycling bill to a proposal from Del. Betsy Carr, D-Richmond, that would ban all food vendors from using plastic foam food containers starting in 2025. 

Carr’s polystyrene ban had successfully passed the House but was facing opposition in the Senate, where legislators worried it would further burden restaurant owners already struggling amid the COVID-19 pandemic. At the same time, the advanced recycling bill, from Sen. Emmett Hanger, R-Augusta, had passed the Senate but faced a skeptical House committee that had already killed a companion bill.

Negotiations among lawmakers led to what Sen. Chap Petersen, D-Fairfax City, called the “Great Polystyrene Compromise of 2021.” 

“To the extent that we get this bill off the floor and pass it,” Petersen said during a debate on the plastic foam ban, “I think it’s important that there will be a reciprocal understanding on the other side of the hall that recycling also needs to be respected and the recycling industry needs to be respected.” 

“There’s no such thing as a quid pro quo in this business, but I will tell you that this is part of a large compromise,” he added.

Advanced recycling

Chemical, or advanced, recycling turned out to be one of the most debated environmental issues of the session, largely because of its unfamiliarity. 

Advanced recycling is an umbrella term for a range of processes that heat plastics to extremely high temperatures at which they break down into their chemical building blocks in order to be repurposed into new plastic products or fuels. Its proponents have said that chemical recycling is capable of removing far more plastics from the waste stream than traditional mechanical recycling methods can. The U.S. Environmental Protection Agency estimates only about 8.7 percent of the nation’s plastic waste is currently being recycled. 

With advanced recycling, “we think that we can recover 65 percent of Virginia’s 1.3 million tons of plastic waste in landfills per year, extending the life of landfills,” Virginia Manufacturers Association president and CEO Brett Vassey told a House panel Feb. 17. 

Hanger’s bill sought to encourage advanced recycling companies to locate in Virginia by classifying them in state code as manufacturing rather than waste management operations, meaning they would not fall under the purview of Virginia’s Solid Waste Management Act. 

“This basically is a policy statement on our part recognizing that there is a technology there now that’s a very successful technology (and) economically feasible,” said Hanger. “I think that’s something we basically want to define appropriately.”

However, a number of environmental groups objected on the grounds that the industry had already begun locating in Virginia, even without the change to code, and that the law would lift a layer of regulatory oversight — a waste permit — from facilities that are only beginning to operate on a commercial scale. 

Chemical recycling plants “should be regulated consistently with other types of waste management facilities” such as incinerators, transfer facilities, landfills and other waste processors, said Phillip Musegaas of the Potomac Riverkeeper Network. 

“Giving these facilities special treatment under the law will not address the long-term plastics pollution problem,” he argued. “It will not keep plastics out of our rivers. It will create a steady demand for plastic and for us to continue to use plastic, and particularly single-use plastic.” 

The Great Polystyrene Compromise

For many Virginia lawmakers, one of the most troubling forms of plastic has been polystyrene, a type of non-biodegradable plastic foam used in food and other packaging. 

Last year a proposal by Carr to ban all food vendors from using polystyrene food containers by July 2025 passed both chambers of the General Assembly, but a Senate provision required that it be passed again in 2021 to go into effect. 

The bill would set two deadlines for phasing out the material, depending on business size. Any restaurant or food vendor that’s part of a chain with 20 or more locations would be forbidden from dispensing food in polystyrene containers starting July 1, 2023, while smaller operations would have an additional two years to transition. 

Many senators continued to have misgivings about the proposal. 

“Every single time that I order takeout to go I think of this bill,” said Sen. Jen Kiggans, R-Virginia Beach, during one debate. “The places that give me these Styrofoam containers are the places that are struggling the most right now. And I understand there’s a delayed enactment and this may not take effect until years from now, but I just think the better approach would be to maybe incentivize other forms of wrapping.”

Many of the industries backing Hanger’s advanced recycling bill, including the Manufacturers Association and the American Chemistry Council, as well as the Virginia Food Industry Association and the Virginia Retail Federation, also mobilized against Carr’s proposal. 

Banning polystyrene “will diminish the opportunity to attract advanced recycling technology to Virginia,” read a memo from the groups urging lawmakers to vote against the bill. “In order to continue to attract advanced recycling investment in Virginia, it is essential that there be a supportive regulatory environment for the industry.”

Asked for clarification on how banning polystyrene would run counter to advanced recycling goals, Vassey said the coalition “oppose(s) banning FDA regulated products as a matter of principle.”

“Our public policy goals are to significantly expand mechanical and advanced recycling as well as better enforce litter laws,” he wrote in an email. “No one supports plastics being improperly discarded into the environment.”

In an interview, Carr said “we all know there’s enough plastic around” and “it’s not going to hurt the manufactured recycling not to have the polystyrene.”

But she acknowledged that without the negotiations tying her bill to Hanger’s advanced recycling proposal, the polystyrene ban would have been unlikely to pass the Senate — and without her bill, Hanger’s might not have passed the House.

“It’s kind of a happy ending for everybody,” she said. “Politics is the art of coming to a compromise and getting things done, and that’s what we’ve done here.” 

While Carr’s bill has passed both chambers, a conference committee of three senators and three delegates is still ironing out differences between the two bills related to whether or not the polystyrene ban should also apply to schools, local governments and nonprofits.

CORRECTION: We have removed a reference to Styrofoam as the most well-known brand of polystyrene. According to Styrofoam manufacturer DuPont de Nemours, Styrofoam is extruded polystyrene foam, which is different from the expanded polystyrene foam used to make food packaging.