The Maine Board of Environmental Protection finalized rules for the state’s extended producer responsibility law for packaging on Thursday.
The law, the first of its kind in the nation when it passed in 2021, is now among five EPR for packaging laws in the U.S. It is set to take effect in 2027.
Finalizing the rules marks a key step in the process after years of deliberation, debate and soliciting comments from stakeholders. The state’s Department of Environmental Protection collected hundreds of pages of feedback to inform development of the rules.
Members of the business community, including the Maine Chamber of Commerce, asked the state this week to pause the rulemaking process, citing concerns that Maine’s proposed EPR for packaging structure diverged too much from other state’s models, creating possible regulatory issues for businesses and producers. Ameripen had also previously asked for a pause, but BEP moved ahead at its Dec. 5 meeting.
Maine’s law, which covers most types of consumer packaging, is unique compared with packaging EPR laws in other states.
In Maine, producer payments will directly reimburse local governments for waste management costs. The amount each producer pays will be based on the volume it generates, as well as how recyclable or reusable its packaging is. Maine’s law is considered a full municipal reimbursement model, meaning the producers pay fees but leave collection duties to the municipalities.
California, Oregon and Minnesota have a shared responsibility model in which municipalities are reimbursed, but producers and municipalities share collection duties. In Colorado, producers will fund a statewide recycling program and take a role in managing it.
While some trade groups took issue with Maine having a different system than other states, others that testified said they didn’t view this as a legitimate concern.
“Programs like this, as you know, have been operating successfully around the entire world for decades, literally 40 to 50 years in some countries. Absolutely none of those programs are harmonized with another one,” said Sydney Harris, policy director for Upstream, who said this law was intentionally “tailor made for Maine” and the state’s unique needs.
Maine already has EPR programs for other products including batteries, paint, mercury thermostats and prescription drugs.
“Maine DEP has been overseeing eight other types of EPR programs here in Maine that date back to 1995. They know what works in Maine. We're not the same as Oregon, we're not the same as Minnesota. We're certainly not California,” Harris said during the hearing.
Concerns over costs
Commenters also raised concerns over how Maine’s EPR model will play out in the market, in terms of where the final cost burden falls.
BEP Chair Susan Lessard, who voted against adopting the final rules, said during the meeting that companies likely will pass resulting costs on to consumers.
“We are moving this cost off the property tax to something else because it will have to go somewhere else, because producers won't add cost to their system without moving that cost along,” she said.
Other meeting attendees didn’t view this as a likely outcome and said they anticipate that customers may make different purchasing choices based on the finalized system.
During the meeting, board member Robert Duchesne pointed out that state lawmakers could introduce legislation meant to refine the EPR law and address concerns raised by some stakeholders. The state’s EPR law also includes an annual report mechanism that could provide an opportunity for the legislature to weigh in periodically.
In a written statement after the final vote, the Natural Resources Council of Maine said the finalized rules were a “practical solution” that will help raise recycling rates. NRCM was a key backer of the initial law.
The EPR program will “shift costs away from taxpayers onto the corporations that produce and profit from the huge volume of cardboard and plastic packaging that’s driving up waste management costs for Maine municipalities,” said Vanessa Berry, NRCM’s Sustainable Maine program manager.
Maine’s rules also include numerous implementation details and metrics. Producers must make a certain percentage of packaging “readily recyclable, reusable or compostable,” starting at 50% by 2030 and increasing to 75% by 2040 and 100% by 2050. Producers will need to reduce packaging in the program, by weight, by 40% by 2040 and 60% by 2050.
Other provisions call for producers to meet post-consumer recycled material thresholds to avoid higher fees and increase use of reusable packaging over time, among numerous other details.
Disposal reimbursement rates debate
Another key point the waste industry raised during the public comment period was a provision in the rules about reimbursement rates for disposing of packaging that’s not readily recyclable.
Casella Waste Systems — a landfill operator in the state — took issue with provisions that would reimburse communities that use incinerators at a higher rate than landfills, as well as not reimbursing communities that are near an incinerator but choose to use a landfill. One reason it cited was that communities may send their waste to different facilities throughout the year, especially when incinerators are down for maintenance.
“We strongly oppose this language on the ground that it obscures the current realities of waste disposal in the State of Maine, results in unfair outcomes for Maine municipalities, reduces market competition, incentivizes CO2 emissions from the combustion of plastic, adds unnecessary complexity, and distracts from the stated goals of EPR for Packaging,” wrote Bob Cappadona, vice president of resource solutions, in a comment.
Aroostook Waste Solutions, a nonprofit landfill operator and recycler, raised similar concerns.
Nonprofit incinerator and MRF operator ecomaine said it fully supported the proposed final rule and appreciated the recognition of landfill emissions. The city of South Portland, which sends its material to ecomaine, questioned the incinerator language.
Meanwhile, the Maine State Chamber of Commerce expressed concern about disposal costs being included in the reimbursement rate at all. The chamber also questioned the incinerator advantage. The Natural Resources Council of Maine, a key backer of the initial law, also questioned the incinerator language but said it supported the inclusion of disposal costs.
