Day Four of the NAW v Feldon Bench Trial: Practical Adminstration

The fourth day of the National Association of Wholesaler-Distributors (NAW) v. Feldon bench trial shifted from questions of legislative intent and economic impacts to questions surrounding the practical administration of Oregon’s Plastic Pollution and Recycling Modernization Act (RMA). Oregon’s witnesses from the Oregon Department of Environmental Quality (DEQ) described how the agency oversees the state’s Extended Producer Responsibility (EPR) program, reviews Circular Action Alliance’s (CAA) Oregon Program Plan, and enforces statutory compliance, while NAW continued probing whether the program provides sufficient transparency and predictability for regulated producers.

Oregon concluded examination of Nicole Portley and called two additional witnesses before the close of the day. Highlights from each witness’s testimony are included below.

Nicole Portley, Program Plan Lead, RMA, Oregon DEQ

Oregon’s direct examination of Nicole Portley continued to delve into discrete aspects of the RMA and of Oregon DEQ’s implementation of the EPR program. Portley explained supply reporting processes, different exemptions for producers (and, specifically, distributors), and how Oregon DEQ addresses and responds to producer inquiries. Portley provided detailed background on the relationship between Oregon DEQ and CAA Oregon, expressing that even confidential parts of the program plan — such as Appendix G (fee methodology) — were reviewed and edited by Oregon DEQ prior to implementation. Portley also noted that information about fee setting and rates is available outside of Appendix G, and that Appendix G could be requested as a public record for a cost of about $1,500. Oregon DEQ would then review Appendix G and apply a balancing test to determine if the information claimed confidential by CAA Oregon could be publicly released. Portley noted that one party had requested the document but declined to follow through on the request once presented with the cost associated with Appendix G’s evaluation.

On cross-examination, NAW questioned Portley about the relationship between Oregon DEQ and CAA Oregon, noting that CAA Oregon has authorities and abilities to control producers outside of Oregon DEQ’s oversight. NAW also asked questions about the impacts that the RMA may have outside of Oregon’s boundaries and had Portley confirm that Oregon DEQ did not investigate impacts on other states when considering the RMA structure and program implementation.

Erin Saylor, Manager, Office of Compliance and Enforcement, Oregon DEQ

Oregon elicited testimony from Erin Saylor, Manager of Oregon DEQ’s Office of Compliance and Enforcement, to explain how enforcement matters are initiated and overseen at Oregon DEQ. Saylor explained how cases referred for enforcement are evaluated, how enforcement staff review evidence against the burden of proof, and the civil penalty assessment process, including consideration of mitigating factors. Saylor noted that formal enforcement typically follows warnings, notices, and other opportunities for non-compliant parties to remedy violations without penalty initiation.

On cross-examination, NAW questioned Saylor about discrepancies in enforcement against producers that have been deemed noncompliant by CAA Oregon. NAW also noted that Oregon DEQ enforcement staff are not privy to Appendix G and implied that this could impact Oregon DEQ’s ability to assess properly violations or allegations of noncompliance related to fees.

David Allaway, Senior Policy Analyst, Oregon DEQ

David Allaway, Senior Policy Analyst at Oregon DEQ, testified to their background serving on the Recycling Steering Committee and data analytics projects that helped inform the creation of the RMA. Allaway explained some of the underlying policy rationales for the legislation, including environmental benefits, and how research and modeling assisted Oregon DEQ and the Oregon State Legislature in calculating impacts and costs. Oregon questioned Allaway about rulemaking under the RMA and the level of work, calculations, and planning that went into developing program regulations.

Testimony from Allaway will continue into what is expected to be the final day of the bench trial.

Proceedings will resume July 17, 2026. To dial-in and listen to live proceedings, expected to continue daily beginning at 9:00 a.m. (PDT) through July 17, 2026, dial +1 (571) 353-2301, ID 812980324#.