2021 will go down as a landmark year in terms of new packaging policy at the state level. Maine and Oregon’s legislatures have now officially passed extended producer responsibility (EPR) laws for packaging sold or distributed in their states. The states will lead the way on this issue and create precedent and potential warnings for other states that might follow with their own EPR for packaging programs. Maine and Oregon have created programs that differ from Canadian and European EPR programs and rely more heavily on state government agencies to make decisions about the most critical aspects of the EPR system, which should be determined by producers themselves. Below is a brief description of each state’s approach.
The Oregon Department of Environmental Quality (DEQ) was the chief proponent of a complex piece of EPR packaging legislation. The bill purports to expand the current recycling system, has producer-funded upgrades to the facilities, gives DEQ the ability to create a statewide list of recyclable materials, creates strict labeling standards, and forces the creation of a weak producer responsibility organization (PRO), with multiple fees on producers to finance recycling systems, with little to no opportunity to shape those systems. Key provisions of the new Oregon law are:
- PRO Program plan/effective date: First due to DEQ no later than March 31, 2024, and first implemented no later than July 1, 2025.
- Uniform statewide recycling collection list: Determined via DEQ rulemaking.
- Municipal annual rates, reimbursements, and processor fees: Determined via DEQ rulemaking.
- Plastics recycling rate: 25% by calendar year 2028, 50% by calendar year 2040, 70% by calendar year 2050. These rates can be adjusted by rule on or after Jan. 1, 2038, but they cannot be adjusted to be lower than 35% or higher than 70%.
- Truth in Labeling Task Force report: Due to the Legislature on June 1, 2022.
- Recycling equity study: First study report due from DEQ no later than Sept. 15, 2024.
- Compostability study: Final DEQ report and recommendations for legislation due to the Legislature no later than Dec. 15, 2026.
- Litter and marine debris cleanup and prevention needs assessment: First report from DEQ due to the Legislature no later than Sept. 15, 2026.
Competing “industry” and “environmental advocate” versions of EPR legislation were considered, but the “environmental advocate” bill moved forward. The consideration of these bills by the Legislature set up a confrontational process where few amendments were considered, and industry advocates, including FPA, were wrangling individual legislators in the hallways up until the final votes. Industry amendment concepts would have given the industry a greater voice on how the Maine Department of Environmental Protection (DEP) will set fees and make decisions. In the end, the Legislature largely rejected those requests and passed a bill that enshrines a government-run program where producers merely function as a funding source for existing recycling operations. Key aspects of the program are as follows:
- DEP rulemaking: Must begin on or before Dec. 31, 2022, and the law requires at least 30 days for public comment on draft rules.
- DEP PRO contractor selection and contract execution: Per Maine RFP rules, this might not be the lowest bid.
- PRO Program plan: Submission, approval, and implementation process/timeline are not specified. They are expected to be included in final rules from DEP.
- Producer annual payments: They begin six months after effective date of a PRO contract.
- Municipal annual rates and reimbursements: Determined and initiated based on rules adopted by DEP.
- Recycling goals: None; only eco-modulation of producer fees for recyclable products, recycled content, and reduced toxicity.
- DEP annual report to Legislature: Must begin Feb. 15, 2024.
Andy Hackman is a lobbyist with Serlin Haley based in Washington, D.C.