I’m writing to convey KRC’s opposition to House Bill 233, and to share the results of KRC’s research regarding the impact of allowing miscoding of plastic bottles with nylon or other non-PET barrier layers as a “1” plastic.
In order to extend the shelf life of oxygen sensitive products such as beer and fruit drinks, and to retain CO2 when carbonated beverages are bottled in sizes less than 16 ounces, some packaging vendors have developed technologies to apply additional non-PET barrier material onto the surface of or to co-inject a barrier layer into the middle of the wall of a PET bottle.
While this offers growth potential for the PET industry in the area of less-than 16 ounce soft drinks, the introduction of a barrier layer that is not PET and the introduction of non-PET material represents a difficult-to-remove contaminant that could adversely affect plastics recycling and those industries, including the bottling, carpet, and other industries that utilize postconsumer PET plastics.
The SPI resin code has been part of Kentucky law since 1991. K.R.S. 224.50-585. The Society of the Plastics Industry (SPI) resin identification code was developed to provide a “consistent national program to facilitate recycling of post-consumer plastics through the normal channels for collecting recyclable materials from household waste.” SPI notes that “improper use of the SPI resin identification code can have serious ramifications for individual manufacturers and could jeopardize the integrity of the coding system.” KRS 224.50-585 (2) clearly states that all “layered plastics of a combination of materials” must be labeled as # 7 (Other).
The SPI cautions that the code should be used “solely to identify resin content.” It is not to be used to imply recyclability of the container.
KRC is concerned that miscoding the barrier layer bottles as a “1” will cause contamination of the PET recycling stream at concentrations above current contamination, and will cause a loss of value to recovered PET that will negatively affect curbside and drop-off collection programs and the recovered plastics processing industry and high end uses of recovered PET. During this past interim, KRC contacted plastics recycling companies in the Commonwealth, and all expressed a concern that greater introduction of barrier layer bottles could result in significant economic loss due to loss of value or of high end uses of the recovered PET due to contamination.
Kentucky is not alone in requiring that barrier layer bottles to be coded as a “7”
You may have been told that “Kentucky is the only state in the country that does not allow for the sale of multilayer/multi-material plastic malt beverage containers that have a RIC of # 1.” That is incorrect.
I have attached a list prepared by the Environmental and Public Protection Cabinet reflecting that in many of the states that have adopted the SPI Resin Identification Code, barrier layer bottles are required by state law to be coded as a “7.” Those include, as of May of last year, Connecticut, Michigan, North Dakota, Oregon, Arizona, Arkansas, California, Colorado, Delaware, Georgia, Hawaii, Illinois, Indiana, Iowa, Mississippi, Rhode Island, Texas, Virginia, Washington and South Dakota, as well a Tennessee. A conversation with Tennessee officials last week confirmed that their position has not changed.
But Aren’t Some Barrier Layer Containers Already Being Coded As “1”?
Yes, there are products in the market that have been coded as “1” despite the plain language of the SPI Code that requires that “layered plastics of a combination of materials” must be labeled as # 7 (Other).
The SPI Code was developed as a voluntary code, and did not include recommendations to state agencies on mechanisms to monitor proper usage of the codes or to take action against misuse. According to SPI, “[t]he integrity of coding systems is therefore dependent on the good faith efforts of manufacturers to use the codes in keeping with their intended purposes.” That certain manufacturers have been coding layered plastics of different materials as a “1” in apparent violation of the plain letter of the SPI Code, is no excuse for compounding that misuse of the code by changing the code. It is instead a basis for state and multi-state action to assure that the code is properly adhered to where good faith efforts at self-policing have apparently been insufficient.
Why Does This Issue Matter?
Why does this issue matter? As SPI notes, “there is a premium placed on the purity of post-use plastics. The more uniform the post-use plastics going in, the more predictable the properties of the recycled plastic coming out. Coding enables individuals to perform quality control (i.e., sorting) before recycling, ensuring that the recycled plastic is as homogenous as possible to meet the needs of the end markets.” (www.plasticsindustry.org/outreach/recycling/resincodes.htm)
Another potential benefit of coding, according to SPI, is that it may “facilitate the recovery of plastics not currently collected for recycling. If there is a readily identifiable supply of a given material in the waste stream, it may drive recycling entrepreneurs to explore means of recovering that material in a cost-effective manner.”
Coding barrier layer bottles, particularly clear bottles, as a “1” has exactly the opposite effect, since rather than identifying those barrier bottles as a “7” and alerting the recycler to the barrier content, amber and clear bottles with barriers become a contaminant in the supposedly homogenous PET stream.
NAPCOR, the National Association for PET Container Resources, in their “Best Practices In PET Intermediate Processing” standards, notes that the presence of laminated barrier resins make the reclaimed PET incompatible with bottle-grade PET resin, and are difficult to distinguish from acceptable materials using current sorting technology. Since most recycling collection programs that collect PET request the public to sort by code, allowing coding as a ”1” will cause greater introduction of incompatible materials into a PET recycling stream that expects “1” coded PET containers to be without contamination.
Coding as a “1” will mislead consumers to believe that the barrier layer bottles are readily recyclable, when they currently are not, and are instead considered contaminants in the PET recycling stream.
House Bill 233, the latest of several bills during the past decade to attempt to allow coding of plastic containers with non-PET resins as a “1,” could adversely affect recycling efforts by eventually contaminating the PETE recycling stream with barrier-layer bottles that will lower the value of the recovered PETE and preclude higher-end uses of the recovered material.
The introduction of barrier layer clear PET bottles into the beer, soft drink and fruit drink market miscoded as a “1” could cause hazing, yellowing or black specs in the clear flake that would preclude its sale into high paying bottle markets and reduce recyclers’ revenues. Coca Cola and Pepsi have declared they will use recovered PETE in making new plastic bottles, but only “if uncontaminated supplies of recovered PETE can be maintained.” This high paying market will be lost due to barrier material contamination (more than 2-3% contamination).
What Are KRC’s Concerns With HB 233?
House Bill 233 has several aspects that are of concern.
First, it is internally inconsistent, allowing a container to be coded as a “1” if the barrier layer is compatible with the recycling stream of the primary resin or if the barrier material is removed from the recycling stream, but then requiring it to be coded as a “7” if the barrier material is not compatible for purposes of recycling with the primary resin of the container.
Nylon barrier layers are not compatible with recycling of the PET resin, and in fact are considered a contaminant that causes yellowing or black specs in the PET due to different melting points, and can interfere with uses of PET due to different intrinsic viscosity. Nevertheless, under subsection (3)(a) the barrier layer bottles could be coded as a “1” if the barrier layer is removed from the recycling stream of the primary resin, though (3)(b) would require them to be coded as a “7.”
Second, it places the manufacturer of the container rather than the state in the position of determining what a container should be coded, based on the manufacturer assuming that the layer will be removed during recycling of the PET container.
According to discussions with recyclers in the Commonwealth and outside, barrier layers in amber bottles are not manually separated and the nylon layer removed, due to the cost, and to the lack of a stable market for amber beer bottles. That the barrier layer could theoretically be physically removed is not an appropriate standard – rather it is whether the barrier layers of the bottles can economically be removed without adversely affecting the viability of processing that stream of postconsumer plastics.
At this time, according to interviews with the recycled material processors across the state, amber beer bottles are considered a contaminant and are removed and landfilled. Several processors indicated that introduction of greater amounts of PET bottles with barrier layers coded as a “1” could adversely affect their ability to market the recovered plastics.
An extensive study undertaken by the Plastics Redesign Project in order to develop an objective methodology for assessing the impact of introduction of barrier bottles into the recycling stream, captioned PET Barriers, Tints and Recycling: Challenges and Potential Impacts on the RPET Stream, November 2001, concluded that while small quantities of amber and barrier bottles in the market today will not significantly impact recyclers, as the proportion of these bottles in the PET stream grows and ultimately reaches even a third or quarter of theoretical market saturation, “within the current first generation barrier and amber tinted beer bottle there will likely be significant impacts unless further work to design for recyclability is pursued or new, economic processing technologies invented.” Miscoding the bottles as a “1” will cause a greater concentration of incompatible barrier layer bottles to be collected in local curbside and drop-off programs, potentially raising the volume in the PET recycling stream to the level that contamination will preclude higher end uses of the recovered PET. Contamination limits the ultimate marketability of the full range of PET plastic containers collected by local recycling programs, lowers the value, hinders processing and causes unproductive downtime and clean-up expenses for PET processors, reclaimers and end-users.
The Plastics Redesign Project report, which I have made available to committee staff electronically, concluded that while many in the bottling industry are dedicated to working to redesign bottles to eliminate impacts on recyclers, “more work appears needed to provide enhanced barrier and light protection in ways that have less impact on recycling.” They recommended testing be done on whether the introduction of larger volumes of the barrier bottles into the PET recycling stream would increase the net costs for recycling programs.
Finally, the potential for use of PET bottles containing barrier layers by Jennmar Corporation using the technology developed by Terrasimco for making roof bolts, is not one related to the coding. The development of end markets for PET irrespective of color or construction is a goal of the TOP Bottle Project, and the Terrasimco Technology allowing the use of a wide range of post-consumer PET packaging without cleaning and without concern for color or barrier construction, will help provide a market for what is now considered a waste in PET recycling. The question for this use of low-grade PET is whether the end-use market will be stable enough and provides enough value to encourage recyclers to add a line to sort, store and ship that material. Coding the colored and barrier constructed containers as a “1” will not encourage the diversion of those containers to this new market but instead will cause confusion and result in contamination of the high-end markets that do still require homogeneity and lack of contamination for their intended uses.
For each and all of these reasons, I ask you not to move forward with this bill.
Barrier Bottle Issue May 9, 2007
Research of plastic resin code designations on beverage containers marketed in other states has resulted in the following information:
States approached by Anheuser Busch (AB)
Connecticut - Code in regulation unchanged since1989. Approached by Anheuser-Busch (AB) in 2000. Connecticut considered the issue and decided the code for barrier bottles should remain as OTHER#7.
Florida – SPI code in Section 403.708(8) Florida Statutes. Florida was approached by the beer industry. Their original statute required multi-resin to be labeled OTHER # 7. Florida amended their statute prior to 2000 to require multi-resin containers to be labeled to identify the primary resin, as long as the container can be recycled in the same manner as a container made entirely of that resin - so barrier bottles would now be labeled PETE#1.
Maryland – Maryland Code Section 9-1710 identifies SPI codes in state law. However, information from Ms. Lipscomb indicates Maryland has concluded that the bottle may be labeled PETE#1 as in the annotated code.
Michigan – Code in statute since 1995, Part 161, 324.16101 – 02. Michigan was approached. No one has contacted them in over 1 ½ years about changing their resin code law. Multi-layered containers are identified as Other #7.
Revised Statute Title 132, Chapter 15 Section 001.01. Steve Danahy, recycling counterpart in Nebraska indicated coding allows multi-layer resin as PETE # 1. However, the statute does not specify multi-layer but rather identifies OTHER #7 as “other”.
Nevada – Code in statute NRS 444.437. Nevada concurred with labeling as PETE #1 after checking with their recyclers. Their decision is primarily based recyclers indicating it would not be detrimental to their operation. The State reserves the right to change its decision if the new bottling proves to hinder recycling.
North Carolina – Code in Statute 130A – 309.10 (e). North Carolina has concluded bottling could be labeled PETE #1.
North Dakota – Unable to locate their statute number on website. By letter dated April 24, 2000, North Dakota informed AB that coding from multi-layer bottles must be coded OTHER #7.
Ohio - Labeling code in Code ORC 3734.60 requiring labeling as OTHER #7. However. Ohio sent a “Letter of No Objection” to AB to labeling as PETE #1. Ohio was not approached by Miller Alcoholic Beverage Company.
Oregon – Code in statute ORS 459A.680 requiring labeling as OTHER # 7.
States with multi-layer resin labeled as OTHER # 7. No knowledge of contact by beverage industry.
Arizona - Labeling code in Statute 49-835 labeling as OTHER #7.
Arkansas - Labeling code in Code 8-9-302 labeling as OTHER #7.
California – Labeling code in Code # 18015 labeling as OTHER #7.
Colorado – “Labeling and Coding” statute CRS 25-17-103, effective 1992 and sunsets 7/1/08 labels as OTHER #7.
Delaware – Labeling code in Code Title 7, Chapter 60, # 6092 since 1992. No current requests to change from OTHER # 7 labeling.
Georgia – Labeling code in Code Title 12, Chapter 8, Article 2, Paragraph 1 Section 12-8-34 labeling as OTHER # 7.
Hawaii – Labeling code in statute HRS 342H-42 labeling as OTHER #7.
Illinois – Labeling code in statute as 415 ILCS 15/10 since 1992 labeling as OTHER # 7.
Indiana – Labeling code in Code IC 13-20-19-2 labeling as OTHER #7.
Iowa – Labeling code in Code 455D.12 labeling as OTHER # 7.
Kansas –Container and labeling law KSA 65-3425 since 1993. No known challenges to the statute.
Louisiana – Labeling code in LARS 2422 D. Statute states the code shall conform to the code developed by the Society of the Plastics Industry. Specific listing of code numbers is not identified in statute.
Maine – Code labeling statute, MRSA Title 32, Chapter 26 in 1989.
Massachusetts –Code in law, Chapter 94, Section 323a. No known challenges to the statute.
Minnesota – Minnesota statutes state the board shall adopt rules requiring labeling of plastic containers. Contact with representatives of Minnesota indicate no rules were every adopted. They have no specific labeling code defined.
Mississippi – Labeling code in Code 17-17-207 labeling as OTHER # 7.
Missouri – Missouri Code 10 CSR 80-10.020 on Procedures to Obtain Exemption for Plastic Bottle or Rigid Plastic Container Labeling was rescinded August 30, 1997.
New Hampshire - Code in Statute Title X, Section 149-N: 4 since 1990. No known challenges to the statute.
New Jersey – Labeling code in statute 13:1E-99-41 requiring plastic resins and laminates labeled as OTHER #7.
Oklahoma – Labeling code in statute Section 27A-2-11-503 labeling as OTHER #7.
Rhode Island – Labeling code in statute 23-18.15-2 labeling as OTHER #7.
South Dakota – Labeling code in statute 34A6-68 labeling as OTHER #7.
Tennessee – Labeling code in Code 68-101-109 labeling as OTHER # 7.
Texas – Labeling code in Code 369.001 labeling as OTHER # 7.
Virginia – Labeling code in Code 10.1-1415.1 labeling as OTHER # 7.
Washington - Labeling in statute RCW 70.95F.020 labeling as OTHER # 7.
Wisconsin –In both statute and administrative code; Wisconsin Statute, Section 100.33, effective 1987; Administrative Code ATCP 137.13.