Extended Producer Responsibility Program for Packaging

This law shifts the cost of managing packaging waste from municipalities and citizens to producers of the products we buy. It places a fee on producers based on their packaging choices. Payments by producers will be based on the net amount of packaging sold into the state and will consider toxicity and whether the packaging is readily recyclable. This will provide incentives for producers to choose more readily recyclable packaging and use less packaging.

Municipalities are eligible to receive reimbursement payments from the stewardship fund that reflect the average cost of managing packaging material, thereby providing incentives for more recycling and improved efficiency in recycling programs.

Additionally, the stewardship organization will conduct statewide assessments to identify potential improvements to recycling infrastructure and education. Money paid into the packaging stewardship fund by producers and not used for municipal reimbursements and program administration will be used to support improvements to recycling infrastructure and education in Maine.

This law will not limit a producer's packaging options; it does not prohibit the use of any type of packaging material or format. Producers can continue to package their products in ways that align with product needs and other regulatory requirements. However, some packaging material – due to its volume, toxicity, or lack of recyclability – will require higher payments into the packaging stewardship fund than others.

The law does not require municipalities to participate in the program, nor are municipalities given incentives to landfill packaging material. Municipalities that do participate will receive reimbursement payments based on the average per-ton cost of managing packaging material. Details on municipal reimbursement will be decided during rulemaking, but they must provide incentives for municipalities to avoid disposal.

Producers and municipalities will be the major stakeholders in this program. Retailers, material recyclers, and Maine citizens will also be involved in the success of this program. All are encouraged to actively participate in the development of the rules of the program during the public outreach period and the rule making and program development process.

The law defines a producer as the brand owner of the packaged product or, if the product brand owner has no U.S. presence, the producer can be a sole importer of the product into the State.

Producers will be required to report to the SO on the packaging associated with products sold into Maine and pay into the packaging stewardship fund. Low-volume producers, defined as those sending less than 15 tons of packaging into Maine on an annual basis, will have the option of reporting in a simplified manner and paying a flat fee of no more than $500/ton of packaging material. The rules associated with this law will define a process whereby any producer unable to provide the requisite reporting information can estimate its obligation.

Producers are encouraged to participate in the rulemaking process, work with the SO on administration and programs to assist with producer compliance and help maintain a level playing field by identifying non-compliant entities. Producers will also be able to provide input on proposed investments in education and infrastructure.

Producers may choose to an establish an alternative collection program to collect and manage a type or types of packing material brought into the state. This program must be approved by the Department following rules to be developed during the initial rulemaking process. A producer that manages a type of packaging material through an alternative program may wholly or partially offset the producer's payment obligations with respect to that same type of packaging only.

Producers can limit the amount they pay into the fund by making changes to packaging to reduce amount and increase recyclability of their packaging or by participating in an alternative collection program.

This law does not require municipalities to participate in the program. However, a municipality that does participate will receive reimbursement payments based on the average per-ton cost of managing packaging material by similar municipalities. To participate a municipality – defined as a city, town, county, township, village or plantation; a refuse disposal district, or a regional association – must accept for recycling all materials that are designated as readily recyclable and must comply with certain data reporting requirements such annual reporting of recycling and cost data. Reporting requirements will be defined during the rulemaking process, and the SO will aid municipalities that need help reporting. Details on the method of calculating payment and the definitions of readily recyclable and similar municipalities will also be determined through rulemaking.

Municipalities have several ways to assure their input into the program. Municipalities can participate in rulemaking, work with the packaging stewardship organization on administration and its programs to assist with municipal reporting, participate in alternative collection programs, provide input on proposals for investment in infrastructure and education, receive funding for investments in infrastructure and education, and participate in the on-going determination of similar municipalities and reimbursement calculations.

Municipalities may be able to increase their reimbursement payments by recycling more and otherwise moving waste up the waste management hierarchy. Because municipalities will be paid for recycling based on the average per-ton cost to similar municipalities, efficiency improvements will not decrease the amount of money a particular municipality receives.

Retailers who also meet the definition of a producer (as discussed above) will have the same obligations as a producer for the packaging associated with their own products.

Retailers who do not meet the definition of a producer do not have any obligations under this law for the merchandise they sell.  However, the department will maintain lists of products, by UPC, that are compliant and known to be non-compliant. Retailers may help maintain a level playing field by providing information on non-compliant products. Retailers that are interested may also participate in the stakeholder sessions for rulemaking development.

To meet their reporting obligations, municipalities will require information from their recycling partners, including information obtained through program audits. Improvements to the efficiency and effectiveness of recycling operations will positively affect the municipalities that partner with a recycling establishment.

Recyclers can also participate in rulemaking, provide the packaging stewardship organization with input regarding its operations, participate in alternative collection programs, provide input on proposed investments in infrastructure and education, and receive funding for investments in recycling infrastructure and education.

Maine residents will be indirectly affected in a few ways. Packaging waste management, which is currently funded through municipal taxes and fees, will have a new source of funding. Municipal recycling programs may begin to accept more materials. Recycling infrastructure should improve, making recycling easier. The packaging seen on store shelves should become more recyclable. Citizens are encouraged to take advantage of these new recycling opportunities and support products with recyclable packaging through their purchasing choices.

Rulemaking provides the detail that is required to implement a program but not outlined in the law that created it. The rulemaking process is designed to ensure the consideration of all input provided by interested parties. First, the department works with stakeholders to develop a draft rule. That rule is then published for public comment. After a comment period, the department must consider all comments and make changes as appropriate; if substantive changes are made, a new comment period follows. The rule must then be adopted by the Board of Environmental Protection, a citizen board that oversees several department activities. Major substantive rules, which may be developed to allow for additional packaging exemptions, also require the approval of Maine's legislature.

Elements that will be defined through rulemaking include: a process for determining producer payments; producer reporting requirements; a process for determining which types of packaging are considered readily recyclable; a process for determining which municipalities are similar municipalities; a process for determining municipal reimbursements; municipal reporting requirements; requirements for the assessment for program performance; methods for performing audits of recycling, solid waste, and litter; a schedule for reporting by the stewardship organization; and a process for reviewing proposed investments for recycling infrastructure and education.

The law provides exemptions for producers as well as exemptions for the packaging associated with certain products. Producers with less than $2,000,000 in gross annual revenue are exempt; producers whose Maine sales were packaged in less than 1 ton of packaging are exempt; producers that realized more than 50% of their total gross revenue from the sale of goods acquired through insurance salvages, closeouts, bankruptcies and liquidations are exempt; and producers of perishable food selling products with less than 15 tons of total packaging are exempt.

In addition to the producer exemptions, the law exempts some packaging specifically. The following packaging is exempt: packaging that is intended for the long-term storage or protection of a durable product; packaging that is defined as a beverage container in 33 MRS §3102 (Maine's "Bottle Bill"); and packaging the contains architectural paint, as defined by 38 M.R.S. §2144, if at least 80 or 90% of containers collected through a stewardship program are recycled.  In addition, the department will review packaging associated with certain federally regulated products to determine whether any of that packaging should be excluded.

Rulemaking will include a review of the packaging associated with some additional product categories. At the end of this review, the department may suggest additional product-based exclusions, subject to approval by the legislature.  At a minimum, the following packaging will be considered during this process: material associated with drugs, as defined in section 321 of the federal Food, Drug, and Cosmetic Act; material associated with a medical device or biological product as regulated by the Food and Drug Administration (FDA) under 21 CFR, parts 200, 300, and 800; material associated with an over-the-counter human drug product, as regulated by the FDA under 21 CFR §211.132; and material associated with a product regulated by the Consumer Product Safety Commission for which tamper evident packaging is required under 16 CFR, part 1700.