Pennsylvania now characterizes advanced recycling of plastics as manufacturing to promote the reuse of plastics under HB 1808 which became Act 127 of 2020 (the “Act”). The Act amends the Solid Waste Management Act, 35 P.S.§§ 6018.101 et seq. (the “Code”) by changing references to Department of Environmental Resources to Department of Environmental Protection and clarifying that post-use polymers that are converted using advanced recycling are not considered waste. According to the House Sponsorship Memorandum posted August 1, 2019 (the “Memo”), “[t]reating post-use plastics as raw materials for ‘manufacturing’ and not “waste’ will remove the barriers of misclassifying this emerging industry and promote continued innovation and investment.” The Act was approved with moderate bi-partisan support and designed to promote reuse of plastics, especially in light of the refusal of China to accept further plastic waste.
Plastics pollution can be reduced by reusing plastic and using less plastic. The magnitude of this problem is outlined in the article entitled, “We made it. We depend on it. We’re drowning in it. Plastic,” appearing in the June 2018 edition of National Geographic by Laura Parker. The “throwaway” lifestyle was celebrated in Life magazine in 1955. According to Ms. Parker, “Six decades later, roughly 40 percent of the now more than 448 million tons of plastic produced every year is disposable, much of it used as packaging intended to be discarded within minutes after purchase.” Id. At 59. Only 9 percent of plastics are recycled. About 70% of North America’s recovered plastic waste has been shipped to Asia, particularly China. That nation began to accept plastic waste from the world about 1980 to repurpose the material for its own needs. However, on January 1, 2018, China banned importation of 24 kinds of solid waste, including plastics, under Operation National Sword. Post-use plastic has now become a country of-origin problem in addition to the global problem of dumping plastics into landfills and the ocean. A study published in Environment International, January 2021, shows that halogenated organic pollutants transfer from mothers to fetuses.
The Act does not define “plastic” but it can be understood as polymers, long-chain molecules made of repeating links of carbon atoms (linear chain) or compounds of carbon, oxygen, sulfur atoms (heterochain). Some can be reshaped with heat which gives them the quality of plasticity. They also have low density, low electrical connectivity, transparency and
toughness. “Post-Use Polymers” has been defined in the Act as section 103 of the Code as follows:
Post-use plastic derived from any residential, municipal or commercial source that would not otherwise be recycled, including source-separated recyclable plastics from a materials recycling facility, that is not mixed with solid waste, municipal waste, residual waste, regulated medical and chemotherapeutic waste, hazardous waste, electronic waste, waste tires or construction or demolition waste and may contain incidental contaminants or impurities, such as paper labels or metal rings. For the purpose of this act, post-use polymers that are converted using advanced recycling shall not be considered solid waste, municipal waste or residual waste.
This language appeared in the final draft of HB 1808 under Printer’s No. 3919 (“PN3919”). The first draft of HB1808 under Printer’s No. 2466 (“PN 2466”) defined “Post-Use Polymers’ by reference to materials that might otherwise become a waste if not converted into valuable raw, intermediate or final products. The presumption in PN3919 is reuse of manufacturing materials, not an exception to solid waste.
The new term, “Advanced Recycling,” is defined as:
A manufacturing process for the conversion of post-use polymers through processes, including pyrolysis, gasification, depolymerization, catalytic cracking, reforming, hydrogenation and other similar technologies, into any of the following:
(1) Basic hydrocarbon raw materials, feedstocks, chemicals, liquid fuels, waxes and lubricants.
(2) Other products, including, but not limited to, monomers, oligomers, plastics, crude oil, naphtha, liquid transportation fuels and other basic hydrocarbons.
35 P.S. §6018.103.
The approach in PN 2466 was to include separate definitions for “gasification” and “pyrolysis.” The term, advanced recycling, as written in PN 3919, is intended to capture a burgeoning industry with non-exclusive examples being depolymerization, catalytic cracking, reforming and hydrogenation, in addition to gasification and pyrolysis.
The Act amends the Code in several ways that follow from the manufacturing class of advanced recycling. These changes were accentuated between PN 2466 and PN 3919. First, the “processing” of waste for off-site reuse or for transfer, composting or resource recovery does not have excluded from it pyrolysis and gasification in PN 3919 as appeared in PN 2466. This follows the distinction that processing is not manufacturing. Similarly, PN 2466 had excluded from “solid waste” post-use polymers and recoverable feedstocks converted through gasification or pyrolysis. Recoverable feedstocks are no longer defined in the Code and post-use polymers are part of the manufacturing process of advanced recycling. “Treatment” still refers to conversion of wastes to nonhazardous wastes or neutralization but the exclusion of the conversion of recoverable feedstocks appearing in PN 2466 was deleted in PN 3919.
Environmental advocates opposed Act 127. The restated exclusion from “treatment” shows the influence of environmental advocates between PN 2466 and PN3919:
The term does not include the conversion of post-use polymers through advanced recycling in which the manufacturing activities, handling of the post-use polymers at an advanced recycling facility and the products and by-products of the advanced recycling conversion comply with all applicable Environmental Protection Agency and department rules and regulations.
35 P.S. §6018.103. Compliance with EPA and DEP regulations is one concern environmental advocates had with PN 2466 and the above-cited language as to “treatment” does not answer whether “advanced recycling” is subject to rigorous environmental regulation. PennFuture, Clean Air Council, and Penn Environment opposed PN 3919, even as amended from PN 2466.
PennFuture expressed concern that Act 127 would increase our “addiction to single-use plastics.” Clean Air Council issued a statement as follows: “House Bill 1808 will increase air pollution…[and] reduces regulatory requirements [by changing advanced recycling from an environmental to a manufacturing activity].” A representative of PennEnvironment calls advanced recycling “just another way to burn fossil fuels.”
Supporting Act 127 were industry advocates including the Pennsylvania Chemical Industry Council, the Pennsylvania Manufacturers’ Association. The American Chemistry Council states on its website that advanced recycling of plastic uses three technologies: purification, decomposition/depolymerization and conversion, the emissions of which are low. Further, “[a]dvanced recycling can contribute significantly to a circular economy in which plastics are repurposed rather than disposed, which helps keep plastics out of the ocean/environment and harnesses their inherent value to create valuable new products.” Articles in Reading Eagle and Inquirer assert that Joe D’Ascenzo plans to open an advanced recycling facility in Cumru Township, Berks County, at the former Titus Generating Station. This is cited as example of the new advanced recycling industry proposed in Pennsylvania.
Rep. Ryan E. Mackenzie (R-134) representing parts of Berks and Lehigh Counties, was the primary sponsor of HB 1808. In the Memo, he said that “[a]s we work to address challenges around pollution, innovators through the free market have provided a possible solution.” The policy underlying the Act is to reuse plastics and grow a new industry replacing the recycling that flourished in China, not to minimize their use with less environmentally intrusive behaviors. The gap between those policies resulted in a mixed reception in the legislature. HB 1808 was signed on November 19, 2020, in the House on a vote of 155 in favor and 46 against, and in the Senate on a vote of 30 in favor and 19 against. Governor Wolfe approved HB 1808 as Act 127 of the 2019-2020 session on November 25, 2020 and it will take effect 60 days later.
© 2021 Robert J. Hobaugh, Jr.