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Originally Published By Ed Sealover In Denver Business Journal

After several rewrites, Colorado legislative leaders seem to have settled on the final version of a bill to ban polystyrene to-go food containers and single-use plastic bags — but have pushed back the implementation date and offered an exemption for small retail stores.

In giving House Bill 1162 preliminary approval Tuesday, Senate members also stuck with one of the more controversial provisions in the bill, allowing for local governments to adopt rules that are more stringent than the state’s and to regulate certain types of plastics individually. Colorado restaurant leaders fought that provision most stringently, saying that it will cause confusion and inadvertent law-breaking by eateries with multiple locations that may have to follow different rules from every city or county where they have a store.

Similar attempts to ban certain plastics got shelved the past two years by significant opposition and by the coronavirus pandemic, which forced legislators to kill off most bills in 2020 that were not related in some way to the worldwide public-health crisis. But after to-go restaurant orders and increased grocery runs made polystyrene boxes and plastic bags omnipresent in the past year, environmental groups returned with fervor this year, saying that Colorado cannot recycle its way out of its plastic-pollution problems and needs to bar the usage of certain materials to stop them from getting into the waste stream.

HB 1162 targets the polystyrene containers that hold meals and the plastic bags in which stores place groceries and other goods. While the original version of the bill proposed that most restaurants would have to nix the polystyrene boxes by Jan. 1 and the bags by September 2022, its upper-chamber sponsors — Democratic Senate President Leroy Garcia of Pueblo and Sen. Julie Gonzales, D-Denver — bumped enactment of the law back to 2024 for both materials.

Garcia on Tuesday also added an amendment that exempts from the plastic-bag ban any local retail store that has three locations or fewer inside the state and no locations outside of Colorado. Garcia said the measure was meant to silence critics who argued that HB 1162 would burden small businesses financially by forcing them to buy more expensive packaging materials as they continue to try to recover from coronavirus and its associated operating restrictions.

But Garcia and Gonzales undid a compromise made by sponsoring Democratic Reps. Alex Valdez of Denver and Lisa Cutter of Morrison and reinserted during a late-night committee hearing last week a clause allowing local governments to preempt state rules with stronger and more specific restrictions of their own. Gonzales told Denver Business Journal Tuesday that the series of changes in the Senate, which bill backers expect to remain in place even as the measure heads back to the House for a final vote, represent nods to both sides of the debate.

Colorado state Sen. Julie Gonzales, D-Denver, speaks Tuesday for her bill to ban polystyrene containers and single-use plastic bags beginning in 2024.

“I think that the balance between giving local communities control to make decisions that are right for their towns and also saying, ‘Here’s the floor of who should comply with this statewide effort’ — I think that’s the right balance,” she said. “What you see the amendments do is offer the fact that we can walk and chew gum at the same time. We can be responsive to small businesses while addressing climate change.”

But Nick Hoover, director of government affairs for the Colorado Restaurant Association, said the enactment date pushback and small-business exception don’t come close to offsetting the confusing jumble of rules the bill allows local governments to craft. Hoover said his industry group fielded hundreds of phone calls weekly during the pandemic from owners confused about how restrictions differed from one jurisdiction to the other, and HB 1162 sets up to create chaos that will extend beyond just the parameters of a public health emergency.

“While we understand that Colorado needs to take action to reduce pollution and increase recycling rates, we believe that action should be unified statewide,” Hoover said via email. “Allowing 64 counties and more than 200 cities to set their own rules on plastics will lead to a patchwork of differing regulations across the state, which will only create confusion and lead to reduced compliance.”

During debate Tuesday, Sen. Rob Woodward, a Loveland Republican and restaurant operator, cited a June 2020 report from Pennsylvania’s independent fiscal office asserting that consumer costs of a plastics-bag ban there would reach $72 million, with costs falling more heavily on lower-income users who have higher usage of such bags. (HB 1162 specifically exempts Coloradans on federal food-stamp programs from having to pay fees on plastic bags before they are banned or on paper bags at any time in the future.)

Colorado state Sen. Rob Woodward, R-Loveland, speaks Tuesday against a bill to ban polystyrene containers and single-use plastic bags beginning in 2024.

Woodward proposed multiple amendments, including exempting polystyrene or single-use plastic materials found to be 100% recyclable, allowing local governments to opt of the ban on those two materials and offering tax breaks to businesses needing to replace plastic bags or polystyrene boxes. All failed on voice votes that seemed to be heavily partisan.

Groups such as the American Chemistry Council, which represents polystyrene makers, continue to argue the bill merely removes materials from the waste stream without requiring they be replaced by recyclable materials in a state with notoriously low recycling rates. A separate and bipartisan bill, Senate Bill 180, which is moving through the House, would create a committee to study potential policies regarding boosting recycled content requirements for packaging through a potential industry-supported fee.

Meanwhile, a prominent environmental group expressed support for what is expected to be the final version of HB 1162, which is likely to be signed into law after it reaches Democratic Gov. Jared Polis’ desk. Danny Katz — director of CoPIRG, the Colorado Public Interest Research Group — said while he feels it’s “unnecessary” to exempt smaller businesses that should be preparing to phase out single-use plastic bags, the bill still covers large box stores and grocery stores that account for a large portion of the plastic bags in Colorado’s waste stream.

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