The Town of Avon did something daring in January: It banned expanded polystyrene food containers, a.k.a. Styrofoam.
The move made the town the first community in Colorado to forbid such take-out food containers, which don’t do well in microwaves — or with trash recyclers.
But it also put them at odds with an obscure state law that prevents cities and towns from banning plastics. Avon’s Ordinance No. 19-11 wasn’t completely brazen, though. It was contingent on whether state lawmakers could overturn the 30-year-old statute.
A bill to repeal local preemption failed to make it out of a Senate committee last week.
Now the town is counting on a different measure. House Bill 1162 would also ban polystyrene, but at the state level. It also has the blessing — or at least no opposition — of some of the groups that opposed rolling back the preemption.
But that’s no guarantee Colorado will ever figure out how to modernize its waste laws — or whether it needs to — in order to satisfy the state’s environmental goals by limiting single-use plastics used in things like grocery bags and straws and Styrofoam containers. Similar bills were proposed last year, with no success. More are on the way this session. It’s created eco frustration among towns trying to reduce waste and for recyclers who are struggling to find a market after China stopped taking most recyclable plastics in 2018.
“When we went to testify, there was a list of 15 to 20 industries lobbying against lifting that preemption on the basis that local governments were going to start outlawing plastic bags for blood or defibrillators for health or medical equipment that uses plastics. There was all sorts of wild speculation,” said Eric Heil, Avon’s town manager who has also served as the town attorney. “In our review, we have not seen other states or other local communities passing these sort of horrible prohibitions of plastics that are needed for everyday life. So right now we’re kind of stuck with uncertainty.”
2020 proposed laws on plastics
Senate Bill 10 — Repeal ban on local government regulation of plastics (failed)
Would repeal language in Section 7 of state statute prohibiting local governments from banning the use or sale of certain plastic materials.
House Bill 1162 — Prohibit food establishments from using polystyrene (committee hearing Feb. 24)
Would prohibit food establishments from offering polystyrene containers (a.k.a. Styrofoam) to package leftovers or for takeout starting Jan. 1, 2022.
House Bill 1163 — Management of single-use products (committee hearing Feb. 24)
Would ban stores and other food establishments from providing a number of single-use plastic items, including carryout bags, stirrers, straws and polystyrene food containers after July 1, 2021.
That obscure preemption law
Sen. Kerry Donovan, who sponsored the preemption repeal bill, knows trash.
Her family owned Vail Honeywagon, the local garbage company in Vail. When she was in high school, she’d sometimes drive the garbage truck to school and would have to pick up trash from any missed customers on her way home.
“It resulted in not too many of my friends asking for rides, which was good, but it also made for a pretty long trip home on some nights,” Donovan said during the committee hearing on Feb. 4.
Her brother Matt got them into recycling while still a senior at University of Colorado.
“Thirty years later, we’re still grappling with the concept of recycling in a resort town in Vail, how to separate glass from aluminum and plastics, how to tell people to not use plastic bags because it seizes up the (machines at the recycler),” she said at the hearing.
She’s realized the answer isn’t recycling. It’s reducing waste. Removing the local preemption is the first step in letting towns decide what is best for their citizens, she said.
“It also makes everyone at this table, the end-of-the-line consumer, responsible for solving a problem that starts years and months ahead with product design, manufacturing and habits of convenience,” she said.
As previously reported in The Colorado Sun, the state ban on local plastic bans stems from 1989’s House Bill 1300. It prevented local governments “from regulating the use of plastic materials or products.” The law was amended in 1993 with House Bill 1318, called the “Promotion of Disposal Alternatives,” which added the language about municipalities not restricting or mandating containers, packaging and labeling.
“Our conclusion was that this was really based on the state’s concern that they didn’t want local governments to interfere with the types of plastics recycled,” Telluride Town Attorney Kevin Geiger said last year.
The Town of Avon also charges a 10-cent fee for plastic bags since passing an ordinance in 2017. “We have not been challenged on that,” Heil said.
State vs. local, urban vs. rural
Polystyrene is difficult, though not impossible, to recycle.
Over at Alpine Waste & Recycling in Denver, the company invested in a machine that compacts used foam into blocks heavy enough that they won’t fly off trucks. But food containers are a different beast, especially if they aren’t cleaned. Recycling is a tough business, Wendy Fauth, Alpine’s Recyclable Materials Manager, said in an email.
“We have also seen a push to eliminate polystyrene materials entirely, but here at (parent company) GFL Environmental we are proud to say we are still one of the few recycling facilities in the nation with the equipment and the willingness to handle polystyrene,” she said.
While there are differing studies on how long it takes for polystyrene foam to decompose — one study recently put it at “decades or centuries when exposed to sunlight, rather than thousands of years,” according to SciTechDaily — that’s still a long time.
Several lawmakers who are backing plastics-use bills spoke out about their own environmental concerns.
“We’ve got to take steps to reduce the pollution that we are creating,” said state Rep. Emily Sirota, a Denver Democrat who is sponsoring the bill to ban single-use plastics statewide to reduce pollution.
“If China can do it, Colorado can certainly do it,” she said. “We aren’t reinventing the wheel here; other states and local governments have done what we are trying to do.”
Industry associations say they support reducing waste, too, but laws need to be specific and statewide. Nick Hoover, manager of government affairs for the Colorado Restaurant Association, said many members are addressing concerns like, for example, not offering straws unless a customer asks. But leaving it up to local governments would create a headache for companies with multiple locations.
And without exclusions, the bioscience industry will face uncertainty, said Emily Roberts, vice president of Colorado BioScience Association.
“We were just really concerned that local regulation could unintentionally include life-saving medicines, devices and medical equipment that patients rely on,” Roberts said. “But I do want to clarify that we had hoped we could have amended the bill to have a statewide exemption for those products. And we were not able to do so, which is why we ended up opposing the bill.”
During the Feb. 4 hearing in the Senate Committee on Local Government, public testimony supporting and opposing the local preemption appeal went on for hours. In the end, the committee voted against the bill 3-2.
Sen. Angela Williams, a Democrat from Denver, voted against the legislation because she said it would be an “undue burden” for businesses that manufacture and deliver these sorts of products. It would make it difficult for a national restaurant chain, for example, to manage take-out packaging from city to city.
“I’m all about the environment, that’s not the issue,” Williams said. “But if we did this in a patchwork fashion, I’m concerned about keeping up with that. We need to address it from a statewide perspective.”
Donovan said she hadn’t expected Williams’ nay vote, but said the idea has widespread support and she may try again with another bill this legislative session, which ends in May.
“I don’t know if this state is ready yet for some of these statewide laws,” Donovan said, pointing to the lack of recycling options in many rural areas. “Local communities are so much better equipped to write the right law for their community.
“It’s very early in the session and there is a lot of time to keep this idea alive,” she said.
Plastic ban, take 2
According to the National Conference of State Legislatures, eight states have banned single-use bags. Last year, 95 bills were introduced at the state level to consider a ban or fee. About 15 states, including Colorado, have a preemption in place.
Industry groups say they don’t want a “patchwork” of separate policies in cities. Environmental advocates say policies will help communities gain more awareness of how much trash is produced and encourage recycling (Colorado’s recycling rate inched up to 17.2% in 2018 compared with 12% the year before, according to EcoCycle’s “State of Recycling in Colorado.”)
It’s an ongoing debate that is creating tensions between urban and rural communities, said Nancy Billica, an instructor of political science at the University of Colorado who specializes in American politics and environmental policy.
“And communities have had to have all kinds of clever workarounds because there are a number of communities in Colorado that have various bag rules and so on but they just have to use clever language that doesn’t violate the state rule,” she said.
But, she added, if the preemption bill is resurrected in a different form, she wants to see the public more engaged in the issue, to help balance out the messaging from lobbying interests.
For what it’s worth, Roberts, with the BioScience Association, said the two pending plastics bills include language that separate out her concerns: “Food does not mean a drug,” they read.
“At this time, CBSA is not weighing in on those bills. I think they are narrower in scope and they clearly specify the types of materials or products that are being regulated,” she said.
Last year’s bill to ban polystyrene also made the distinction that food does not include drugs, but there was still opposition. The American Chemistry Council pointed out that alternatives tend to cost more money and the infrastructure to recycle wasn’t always there. But the general consensus of why it didn’t pass was the bill was introduced too late.
Rep. Lisa Cutter, who is sponsoring the bill to ban Styrofoam, says she’s confident that the bill will pass despite the preemption bill dying last week. Unlike last year’s bill that only included take-out food, this year’s bill includes hospitals, schools and dine-in restaurants.
“We are all after the same things, which is to eliminate or reduce excessive plastics in Colorado, but the bills do different things,” she added. “Styrofoam is one of the worst offenders when it comes to pollution. And the issue has been worked on a lot.”
On Tuesday, federal lawmakers introduced legislation to phase out some single-use plastic products. Called the “Break Free From Plastic Pollution Act of 2020,” it would create a national beverage container refund program, spur investment in recycling and composting infrastructure and require large companies to reduce wasteful packaging and design plastic products with less waste.
Awareness is definitely growing, said Suzanne Jones, executive director of Boulder County recycler EcoCycle. While she believes it will take a few years for a federal law to pass, Colorado is much closer to passing a plastics law thanks to its past failures. She feels many of the issues got worked out during past sessions and 2020 could be the year Colorado gets a statewide plastics law on the books.
“We’ve never seen such a groundswell for public action, and communities are very anxious to lead,” said Jones, pointing to support from the Colorado Municipal League, which represents 270 of the state’s 272 cities and towns. “Honestly, I think we’ll be successful this year. It’s only a matter of time.”
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