Flexible Packaging & Waste Disposal Laws: A US Perspective

The converting industry has brought flexible packaging options, with their attendant source-reduction benefits, to a great number of customers interested in minimizing environmental waste burdens. Nevertheless, the industry faces the possibility of new waste-disposal concerns in California.

Beginning in the late 1970s and continuing into the early 1990s, concerns about the availability of landfill space led to widespread state and local regulation governing the use and disposal of packaging in the US. At its peak, more than 80% of US solid waste, including packaging, was disposed of in landfills. The increased time to permit new landfills in accordance with new performance criteria enacted under the Resource Conservation and Recovery Act (RCRA), coupled with growing resistance to new landfills by neighborhood and grassroots activists, suggested severe strains on the existing waste disposal infrastructure.

RCRA gives the Environmental Protection Agency (EPA) broad authority to regulate the management of solid and hazardous wastes in the US, but Subtitle D of the Act encourages states to take primary responsibility for regulating the disposal of nonhazardous solid wastes.

The federal role is limited to setting national goals, providing guidance and technical assistance, and developing educational materials for the states. Most states, however, adopted EPA's guidance on an integrated waste management hierarchy and implemented regulations favoring, first, source reduction, then recycling, and finally, environmentally safe land disposal as the last resort. State approaches to source reduction generally involved banning the use of packaging perceived to occupy too much landfill space, contribute to litter, pose a threat to wildlife, or complicate recycling.

Several Executive Orders require federal agencies to purchase products and services with a reduced effect on human health and the environment. Accordingly, EPA has developed guidelines for federal purchasers to evaluate the environmental impacts of every product throughout its lifecycle. Various states and local governments have followed the federal example in an attempt to promote recycling and waste-reduction efforts. Key provisions of state programs specify products that use minimal packaging, often identified in state guidance as flexible packaging, are “environmentally preferable products.”

With these initiatives, increased recycling and composting rates in the mid- to late '90s led to a decrease in the national landfill disposal rate to 57% and a corresponding decline in new state packaging restrictions and recycling initiatives. The converting industry has contributed to a broad reduction in waste in the US while continuing to offer innovative packaging solutions. The industry's ability to innovate may soon be tasked again, however, if a recent California initiative is any indication.

The California Integrated Waste Management Board (CIWB) has commissioned a plastics white paper to help define the state's current plastic waste issues and develop future policy options. The draft report argues the widespread acceptance of plastic packaging as a means of source reduction is creating a waste disposal problem in the state. According to the report, plastics recycling in California has stagnated at a low level, and state recycling and disposal policies are not working.

The white paper reports plastic films comprise the largest share of plastics found in the state's landfills, and it examines several options to expand plastic film recycling. Fumigation, mulch and greenhouse films, and irrigation drip tape are said to be possible candidates for improved recycling, as are smaller retail and distribution industries and consumers.

Although the white paper suggests the outright ban of certain packaging is a last resort only, it does favor passing the cost of recycling to packaging manufacturers through the use of a recycling fee. This obviously is an issue of major interest to the converting industry.

This first of a two-part article summarizes the current state of US environmental laws governing the use and disposal of packaging. Part two will examine recent international developments, particularly in the EU, on this topic.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; PackagingLaw.com.

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