Recycling is necessary for Virginia to achieve a true circular economy and the continued review of the Solid Waste Planning and Recycling Regulations ensures the regulations are responsive to the evolving needs of the Commonwealth as challenges and opportunities evolve. Solid Waste Planning and Recycling regulations should be a tool to help Virginia create a true circular economy and support recycling programs. As stated by the Environmental Protection Agency (EPA), “A circular economy keeps materials, products, and services in circulation for as long as possible.”

Source reduction is the top priority listed in Virginia’s Planning Requirements Code and as such, Virginia’s regulations should support this priority with the goal of conserving our natural resources and reducing the amount of recyclable materials and waste that goes into landfills. The regulations are a powerful tool to facilitate the most impactful and meaningful solutions pursued by the Commonwealth and communities within.

Unfortunately, communities across the Commonwealth are reducing in size or eliminating their recycling programs due to funding and staff capacity reductions. Improving recycling rates in Virginia will require a financial investment in improved infrastructure but the general public should not shoulder the bulk of this funding burden. Producers and distributors of waste generating products should financially support recycling infrastructure.

Data shared by the Northern Virginia Regional Commission showed that shifting the financial responsibility for recycling infrastructure from the general public to plastic producers and distributors is favored by 84% of local governments. A recent survey from Clean Virginia Waterways showed that 71% of Virginia voters support policies that shift the costs of recycling programs off community taxpayers and onto producers.

Comment 1: Avoid Inconsistencies in Definitions Across Regulations. 

Definitions should remain consistent across Virginia codes to avoid confusion and disparate applications among various stakeholders. Changes should only be made to provide additional clarification and ensure consistent and successful application of current rules.

For example, “Advanced recycling” has been clearly defined in Virginia code (§ 10.1-1400) as a manufacturing process. Facilities that use “advanced recycling” processes such as pyrolysis, gasification, depolymerization, reforming, hydrogenation, solvolysis, catalytic cracking, and similar processes for the conversion of post-use polymers and recovered feedstocks into basic hydrocarbon raw materials, feedstocks, chemicals, liquid fuels, waxes, lubricants, or other products should not be included in solid waste planning and recycling regulations because they are regulated as a manufacturing process under § 10.1-1400. If this process was to be defined differently in the Solid Waste Planning and Recycling Regulations than it already is in other regulatory contexts, incongruous enforcement of specific restrictions, oversight, and tax protocols may result in negative outcomes.

The following are opportunities to clarify the current definitions in the Solid Waste Planning and Recycling Regulations.

• Recommendation: Throughout the Definitions and other sections, it must be clearly stated that “advanced recycling,” pyrolysis, gasification, depolymerization, reforming, hydrogenation, solvolysis, catalytic cracking, and similar processes when used in the production of plastic-to-fuel, plastic-to-fuel substitute, and plastic-to-fuel additives are not considered recycling, and shall be subject to all applicable federal and state environmental laws and regulations. This is consistent with the U.S. EPA, and several other national policies related to solid waste. 

• Incineration: Pyrolysis is already defined as incineration (the controlled combustion of solid waste for disposal) in 9VAC5-40-7380. Municipal waste combustion units do not include pyrolysis or combustion units located at a plastics or rubber recycling unit because these units are regulated as part of a manufacturing process, not solid waste. 

  • Recommendation - Clarify here the types of facilities using incineration to include: Any facility using pyrolysis, gasification, depolymerization, reforming, hydrogenation, solvolysis, catalytic cracking, and similar processes.

• "Litter" is currently defined as “all waste material disposable packages or containers, but not including the wastes of the primary processes of mining, logging, farming, or manufacturing.” Usually, “Litter” is defined as mis-managed waste or trash that ends up in the environment. Waste items, when correctly disposed of, are not considered “litter”.

  • Recommendation: Rewrite this definition to be consistent with the EPA and the legal definition of litter. EPA states: “Littering is a type of pollution that occurs when garbage, including plastics, paper, and metal, are not disposed of properly and can enter coastal waters. 

  • Another detailed definition is: “LITTER. Includes any man-made or man-used waste, which, if deposited otherwise than in a waste receptacle, tends to create a danger to public health, safety and welfare or to impair the environment. LITTER shall include, but is not limited to, garbage, trash, refuse, debris, grass clippings or other lawn or garden waste, paper products, glass, metal, plastic or paper containers, motor vehicle parts, furniture, carcasses of dead animals or any other waste material of an unsightly, unsanitary, nauseous or offensive nature.”

• “Materials recovery facility" is currently defined as “a facility for the collection, processing, and marketing of recyclable materials including metal, paper, plastics, and glass.”

  • Recommendation: Clarify this. Facilities using processes defined as “incineration” (9VAC5-40-7380) or “advanced recycling” (§ 10.1-1400) in Virginia code to produce plastic-to-fuel, plastic-to-fuel substitutes, and plastic-to-fuel additives can not be classified as materials recovery facilities.

• "Recycling" means the process of separating a given waste material from the waste stream and processing it so that it may be used again as a raw material for a product, which may or may not be similar to the original product. For the purpose of this chapter, recycling shall not include processes that only involve size reduction. 

  • Recommendation: Clarify this. Pyrolysis and other plastics-to-fuel technologies are not to be considered recycling, this will make Virginia consistent with the EPA that states: “Activities that convert non-hazardous solid waste to fuels or fuel substitutes (“plastics-to-fuel”) or for energy production are not considered to be “recycling” activities. (Language is modified from the EPA Draft National Strategy to Prevent Plastic Pollution)

  •  Any processes defined as incineration in Virginia code can not be considered a recycling activity as incineration is listed as the fifth priority in the hierarchy set forth in 9VAC20-130-120 planning requirements. 

• "Resource recovery system" is currently defined as “a solid waste management system that provides for collection, separation, recycling, and recovery of energy or solid wastes, including disposal of nonrecoverable waste residues.” 

  • Recommendation: Clarify this. Any processes defined as incineration in Virginia code (9VAC5-40-7380) cannot be considered a resource recovery system. Plastic-to-fuel technologies are not resource recovery systems and their classification should be consistent with EPA guidance. 

• "Source reduction" is defined as “any action that reduces or eliminates the generation of waste at the source, usually within a process. Source reduction measures include process modifications, feedstock substitutions, improvements in feedstock purity, improvements in housekeeping and management practices, increases in the efficiency of machinery, and recycling within a process. Source reduction minimizes the material that must be managed by waste disposal or nondisposal options by creating less waste.” "Source reduction" is also called "waste prevention," "waste minimization," or "waste reduction." 

  • Recommendation: Clarify this. Processes defined as incineration in Virginia code (9VAC5-40-7380) should be specifically excluded from “source reduction” strategies, as incineration is the fifth priority in the hierarchy set forth in 9VAC20-130-120 planning requirements. Source reduction strategies are the first priority.

  • Plastic-to-fuel technologies should be specifically excluded from “source reduction” strategies as these technologies are classified as a manufacturing process and increase waste production. 

Comment 2: Increase the Minimum Recycling Rates and Tailor the Rates by Material

The regulations currently outline minimum recycling rates stating “each solid waste planning unit shall maintain a minimum 25% recycling rate; or each solid waste planning unit shall maintain a minimum 15% recycling rate if it has (i) a population density rate of less than 100 persons per square mile according to the most recent United States Census or (ii) a not seasonally adjusted civilian unemployment rate for the immediately preceding calendar year that is at least 50% greater than the state average as reported by the Virginia Employment Commission for such year.”

There are seventeen Solid Waste Planning Units (SWPU) that are required to report annually. Their reported recycling rates varied from a low of 23.9% to a high of 57.9%. Sixteen of the seventeen SWPUs surpassed the 25% goal, and the seventeen SWPUs averaged 43.30%. 

Nineteen Solid Waste Planning Units (SWPU) with populations 100,000 or less voluntarily reported. Their reported recycling rates varied from a low of 17.5% to a high of 63.5%. All of the nineteen reporting SWPUs surpassed the 15% goal.

• Recommendation: In the spirit of Executive Order 17, raise the minimum recycling rate to 40% for urban areas (eight of the seventeen annual reporting SWPUs are already surpassing the 40% mark). Implement a ten year mandate for all seventeen of these SWPUs to increase recycling rates to 80%. For rural areas of Virginia, raise the minimum recycling rate to 25%. Implement a ten year mandate for all SWPUs in lower population areas to achieve 60% recycling rates.

• Recommendation: Mandate minimum recycling requirements by material: plastic, tires, glass, etc. This can help Virginia and localities develop programs to target specific recycling programs.

Thank you for the opportunity to provide comments as you examine the future of this critical regulatory framework.