A landmark recycling law passed last summer won’t go into effect for another four years under the state’s regulatory timeline, disappointing sustainability advocates who would like to see the process sped up.
Maine passed the nation’s first extended producer responsibility law for packaging such as plastic bags, cardboard food cartons and paper parcel stuffing. It will not apply to most beverage containers, already covered by the state’s bottle bill, or paint containers, which are covered under a similar program.
The new program would make corporations shoulder the cost of disposing of hard-to-recycle packaging by reimbursing municipalities for disposal costs and investing in the state’s recycling infrastructure. Companies could reduce their costs by reducing or changing the packaging on their products sold in Maine.
But because of the large number of people, companies, local governments and organizations affected by the sweeping reform, complicated rule making to enshrine the law in state regulations won’t formally begin for another 18 months. Towns and cities may not see their first payments under the program until 2027.
“This particular program is difficult to implement because of its complexity and the number of interested parties,” said Paula Clark, director of the materials management division for the Department of Environmental Protection. “It is a substantial and robust rule-making process, (and) we do expect it to take a period of time.”
Similar programs have been used by numerous European countries and Canadian provinces for years, and all have far higher recycling rates than Maine, which stood at about 38 percent in 2019.
Advocates of producer responsibility point to higher recycling rates in those countries as evidence the program can work to increase the amount of material Maine recycles and shelter local taxpayers from disposal costs that rise and fall with commodity markets.
Proponents of recycling reform are disappointed at the length of the process envisioned by the state and say there are ways to speed it up without cutting corners.
“The timeline that DEP has put up on their website is much longer than I expected; I also feel like they gave themselves a lot of wiggle room,” said Sarah Nichols, director of the sustainable Maine program at the National Resources Council of Maine. “We need to do this carefully and well, but we need to balance that with the fact that municipalities needed help yesterday.”
Rule making is already a year behind because the state budget didn’t include money for two DEP staff members to administer it until this year. Those staffers will help with a lengthy outreach to program stakeholders, Clark said.
The department usually tries to front-load the process of gathering input and answering questions about draft regulations before it starts formal rule making, which in this case is expected to occur at the end of 2023, Clark said.
“This one in particular, because of its complexity and scale, really lends itself to that kind of process,” she said.
The final technical rule is expected to be ready for approval by the Board of Environmental Protection by summer 2024. Ordinarily, that would be the end of the rule-making process. In this case, however, legislators included the possibility of exceptions to the rule for packaging – such as childproof pill bottles – required by the US Food and Drug Administration. Small producers, those with less than $2 million in revenue, are exempt from the requirements.
Making new product exceptions means the department may need to develop “major substantive” rules that also need legislative approval, adding time and complexity to the process, Clark said. If necessary, those rules would not be finalized until 2025.
After all that, the department will still need to hire a stewardship organization to administer the program, determine payments to producers and reimburse municipalities. That won’t happen until 2026, according to the department timeline. Municipalities can’t count on payments from the program until the following year.
Nichols, of the Natural Resources Council, said there are opportunities for the department to expedite a statewide packaging program. Making product exemptions to regulations could be done at the same time as the department hires a stewardship organization, she said, since most of the products would be included in the overall regulation.
Taking the two issues in tandem could move the process ahead by a year or more, Nichols said.
“There is no guarantee there is even going to be a list of exemptions proposed by DEP or that it will be passed through the Legislature,” Nichols said. “That is a little bewildering to me – I don’t see any logistical or any real reason why it needs to be part of the timeline, frankly.”
A yearslong regulatory process means Maine’s packaging law will go into effect about a year later than that of Oregon, the second US state to pass such a law. Colorado is poised to join the club this year, and at least 20 other states have considered passing similar laws, said Dan Felton, executive director of Ameripen, a packaging trade group that represents major companies such as Procter & Gamble, PepsiCo, Dow Chemical Co . and sanitary paper products maker Kimberly-Clark.
There is no set model for producer responsibility programs proposed in other states, but many are more like the laws in Oregon and Colorado, which give a larger role to private industry than in Maine, where the program is far more government-centric, Felton said .
“What we have seen across the states is a lot of inconsistency,” he said. “I wouldn’t say there is a model out there yet.”
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