UPDATE: Feb. 12, 2020: This bill was officially introduced this week as "An Act To Support and Increase the Recycling of Packaging" (LD 2104). The Maine legislature's Joint Standing Committee on Environment and Natural Resources is expected to hold a hearing about it on Feb. 26.

Maine was among the first states to pass a bottle bill, the first to pass an electronics recycling law and the first to ban polystyrene foam. This year, it could embody the state motto of "Dirigo" (I lead) yet again by becoming the first to pass extended producer responsibility (EPR) requirements for packaging.

While related bills are also making waves in other states, many observers view this proposal as having some of the most momentum.

Nearly 10 local governments throughout Maine have canceled curbside recycling programs in some form, with numerous others limiting or restricting drop-off options and citing financial pressures as a significant motivating factor. While supporters see producers as the obvious source of funding to help with these disposal and recycling costs, the producers themselves remain unconvinced. 

“They don’t want to pay [municipalities] for something that they don’t have control over, which is ironic because that’s what municipalities do right now," Sarah Nichols, director of the Natural Resources Council of Maine's (NRCM) Sustainable Maine project, told Waste Dive.

Waste and recycling service providers, meanwhile, have so far expressed varying opinions on whether this is the right move. Yet they too have been talking more about producers taking a greater financial stake in the system, setting up what could be one of the nation's more pivotal legislative discussions around recycling all year.

The boundaries of responsibility

Following Gov. Janet Mills' signature of LD 1431 last year, Maine's Department of Environmental Protection (DEP) was tasked with developing a legislative framework for packaging EPR. The latest draft language, shared with Waste Dive ahead of an imminent introduction, is substantially different from what has been circulating in recent weeks but largely calls for the same plan.

The bill would give DEP authority to issue a request for proposals by April 2021 to manage a new product stewardship organization over a 10-year period. Once established, packaging producers with more than $1 million in annual gross revenue would begin paying into a managed fund based on a variety of factors.

Payments would be based on the "amount by weight of packaging material they sell, offer for sale or distribute for sale" within Maine," but could be "wholly or partially" offset by multiple factors – such as whether the packaging is deemed "readily recyclable." Other factors include the creation of alternative recycling programs (i.e. takebacks for flexible packaging), packaging redesign for improved recyclability and greater use of recycled content.

Participating municipalities (those that share annual data and meet other requirements) could then be reimbursed for recycling and disposal costs. According to NRCM, local municipalities are spending "more than $16 million per year" on waste services and Nichols said many are "struggling big time" with recycling costs in particular.

Maine's existing product stewardship framework law serves as a basis for the proposal and it has notable parallels to a longstanding packaging EPR system in the Canadian province of Québec. That system differs from another in the province of British Columbia, which requires producers to fund and manage recycling infrastructure. That second model was not pursued in order to make the bill more palatable to recycling service providers and others. Québec may be moving in that direction, and supporters hope Maine could too, but not yet.

"In Maine, it was really apparent at the outset of these discussions that it had to be a shared compensation model, at least to begin [with], because of the existing infrastructure that we have. It would be just too disruptive to our current system," said Nichols.

The Canadian systems have seen pushback. A 2019 report commissioned by the West Coast Refuse & Recycling Coalition found British Columbia's model has hit some struggles, including with recycling packaging and printed paper. 

One unique difference between the Canadian models and the Maine proposal is the state DEP's level of control, according to the Boston-based Product Stewardship Institute. PSI has been working on this issue for decades and recently developed a best practices framework based on systems around the world.

"Usually EPR legislation allows the producers to select [for] themselves who they want to operate the system," said founder and CEO Scott Cassel, adding this broader governance question is a point of ongoing international discussion.

“There’s a dynamic tension between the governments wanting control over the system, to ensure that they obtain the results that they’re seeking, and the producers on the other hand who want more flexibility and autonomy to make the changes that they think are necessary to achieve those goals,” he said. 

During a Jan. 8 committee hearing, DEP Commissioner Jerry Reid raised concerns about the agency's liability if the selected stewardship organization was to fail and declined to fully endorse the upcoming bill. Other concerns raised at the hearing included legislative authority, financial safeguards and the need to fund DEP staff time before an annual contribution of up to $200,000 kicks in from producer payments.

"Until these issues are responsibly addressed, I cannot have confidence that this program will succeed, and I believe putting into place a program that has these problems would be a real mistake and a major setback to the packaging EPR effort. Having said that, I believe these issues are resolvable, but are also complicated enough that they will require significant time and attention to work through," said Reid via written testimony.

The agency confirmed it is still working through those questions as of this month.

Divergent stakeholders, growing momentum

Once introduced, the bill will receive a hearing by the Maine legislature's Joint Standing Committee on Environment and Natural Resources where amendments are anticipated.

While some resistance is expected from packaging companies – many of which participate in EPR programs around the world – the recycling industry's stance is less defined. Many of the largest private-sector players have historically been wary of any model that could limit their control over business.

Steve Changaris, vice president of the National Waste & Recycling Association's (NWRA) Northeast region, said via email his members are currently in the process of "hammering out a position" on the Maine bill. NWRA opposes a pending national EPR proposal. "In our review process we are weighing local, regional and national industry concerns about EPR for packaging," Changaris said. 

Nichols said she sees clear benefits for service providers under a new reimbursement model. “Right now, towns are abandoning their recycling programs so they’d obviously lose contracts with those towns, but if towns are able to start their recycling programs again they’d see that as an opportunity to have more business," she explained.

Casella Waste Systems expressed openness to the model in April 2019 testimony. Ecomaine, a nonprofit MRF and incinerator operator, meanwhile came out in strong support. Many of Maine's largest municipalities are also supportive, according to NRCM. 

The Recycling Partnership, which works to fund municipal recycling efforts around the country with money from packaging companies, retailers and others, did not share a position at last year's hearing or when contacted by Waste Dive.

The Plastics Industry Association, American Forest and Paper Association, Consumer Technology Association and various state retail trade groups testified either in direct opposition to LD 1431 or with great skepticism last year.

AMERIPEN, which also testified against the initial bill, recently emphasized the desire for a more "holistic approach" to rethinking recycling systems that also factors in a discussion about packaging lifecycles.

"We are concerned that the draft EPR legislation jumps too quickly to the belief that a pot of funds will solve all the challenges facing packaging and waste and without strategies on how and where funds might be spent," said Executive Director Dan Felton in a statement, calling instead for ongoing dialogue. 

The Consumer Brands Association (formerly the Grocery Manufacturers Association), which has pursued non-regulatory solutions such as standardized recycling guidelines, touted 2030 packaging sustainability commitments by its largest members as a sign of broader progress.

"This draft recycling legislation, while well intentioned, fails to address the underlying data gaps to understand how to most effectively address the state’s infrastructure challenges and patchwork of rules and regulations facing consumers in Maine," said Meghan Stasz, vice president for packaging and sustainability, in a statement that went on to cite different recycling rules in neighboring municipalities. "We are committed to working with all stakeholders in Maine to develop a uniform system based on shared responsibility, from all parts of the value chain, that works for Mainers, businesses and the environment.” 

Whether or not these questions will sway lawmakers remains to be seen. Some have already indicated they view this as a high priority for the session. Regional environmental groups similarly continue to advocate for it strongly.

“Plastic producers have been given a free pass to pollute our communities for far too long at taxpayer expense,” said John Hite, zero waste policy analyst at the Conservation Law Foundation, in a statement. "Maine’s pending EPR legislation will require packaging companies to deal with the mess they’ve made and create products that don’t wreak havoc on our recycling systems and environment.”​

The groups backing this proposal view it as important for Maine, but also the start of a much larger effort that includes similar efforts at varying stages in Vermont, Massachusetts, Washington, Oregon and other states. Unlike a bill that failed to pass in California last year, Maine's enactment of EPR for packaging wouldn't necessarily be enough to encourage national market shifts.

“Maine itself will not change that dynamic and Canadian systems have not fully changed the overall design of products," said PSI's Cassel, caveating that EPR in other countries has inspired "many instances where producers themselves have switched from one material to another, to lower their costs of managing their packaging."

While an upcoming national EPR bill is seen as unlikely to pass in the current Congress, it too could contribute to rising cultural awareness around recycling issues and make such conversations more mainstream in 2020. The fate of Maine's EPR bill may be an early indicator of how that debate will unfold.