Proposals to bill packaging producers for end-of-life disposal

Maine Rep. Nicole Grohoski (D-Ellsworth), who sponsored an EPR law for plastic and paper packaging that this summer became the first of two in the country, believes the current system has fallen short. 

“People want to do their part by recycling and municipalities want to offer programs, but they can be cost-prohibitive for the tax base,” she said. 

Under Maine’s Legislative Document (LD) 1541, U.S.-based brand owners, as well as importers of products, will pay fees based on the amount of paper and plastic packaging material they bring into the state. Plastic, metal and glass bottles, which are covered by a separate deposit-redemption arrangement, will be exempt. 

At a couple bucks per ton of waste, fees levied against plastic packaging likely won’t be noticed by consumers, proponents say. But they will add up, said Sydney Harris, policy and programs manager for the Product Stewardship Institute (PSI), a nonprofit organization that lobbies for EPR legislation. 

“The idea behind EPR is that corporations should be responsible for the product and the packaging that they put on the market, including post-consumer, because those products and packaging often have significant health, safety, environmental, social impacts,” Harris said. 

Among other goals, LD 1541, signed in July, aims to encourage waste reduction; the reuse of materials; the use of readily recyclable materials in packaging; a reduction in the toxicity of packaging material; and the use of single-material packaging that includes prominent and easily understandable symbols or instructions regarding recycling or disposal. 

Funds will go toward municipalities, based on their costs for abating litter, and collecting, recycling or disposing of material, as applicable. In addition, municipalities and other entities may apply for funding to invest in education and infrastructure related to recycling. 

“The Maine DEP estimates that municipalities spend around $17 million a year in taxes on managing packaging waste, so that would likely be a minimum but shows the order of magnitude,” Grohoski said.  

An oversight organization, known in Maine as a stewardship organization (SO), will track waste amounts, and collect and disperse fees from producers. 

It wouldn’t surprise Grohoski to see a nonprofit in which producers already are involved apply for this role.  

“It’s not unusual for the state to contract with outside organizations for help with program administration, especially when the task may require many additional staff with specialized expertise and particular skillset that the DEP staff may not have in-house,” she explained. “The SO will need to have people with experience in things like software development, accounting and other services that are not necessarily regulatory in nature.” 

The entire structure could take several years to implement, Grohoski said. 

Following the trendlines  

Following Maine’s lead, Oregon this summer became the second state to ratify EPR rules for plastics packaging.  

Congress’ Break Free from Plastic Pollution Act lay out a national EPR system. The proposal takes on a slate of initiatives, from mandating progressively higher levels of recycled content in bottles, to establishing a bar for the percentages of products that must be reused, recycled or composted. 

About half dozen or so states are considering their own legislation—including New York, Vermont, Washington and California.  

PSI supports a national approach, but also works toward the passage of state bills. 

Harris conceded the push follows partisan trends.

“Generally, when we look at where these laws tend to pass the most and which states have more EPR laws, that does tend to align with the blue end of the spectrum of the map of the U.S., but we also do work in a lot of states that are more conservative,” she said. 

In all, 33 states have EPR laws governing products from thermostats to medical sharps. 

According to PSI, EPR bills have two basic features: They shift financial and management responsibility, with government oversight, upstream to the manufacturer and away from the public sector; and they create incentives for the development of environmentally friendlier products. 

Like LD 1541, bills propose oversight structures, with varying levels of influence for producers, as stakeholders in Producer Responsibility Organizations (PRO), a role similar to Maine’s SO. The bills also define producers in a variety of ways, covering, in some cases, the manufacturers, distributors or importers of packaging, with exemptions based on factors such as company size. 

PSI, which has more than 120 partners, including businesses and governmental groups, backs bills that give all stakeholders—including producers—a voice in the process. Its Advisory Council includes representatives from Unilever and the Flexible Packaging Association, among others. 

“We want to see financial and sometimes management responsibility go to the producers. But we also need to see government oversight and accountability and transparency in this program. So, there's definitely a balance of power, if you will,” Harris said. “We also like to see economic incentives that really incentivize manufacturers to incorporate environmental considerations into the design of their products and packaging." 

A matter of control 

With U.S. recycling rates of plastics scraping under 10 percent, recycling proponents agree action is needed to support infrastructure to handle tens of millions of tons of materials that are currently landfilled.  

But not all believe EPR legislation is created equal, with critics categorizing bills in two camps: Polluter pays vs. polluter control. They warn some bills give too much power to producers to decide how their own fees are spent.  

“Any bill that creates a PRO I would be opposed to because the PROs are just an unnecessary middleman, middlewoman function that’s unnecessary,” said Neil Seldman, a co-founder of the Institute for Local Self-Reliance (ILSR), a think tank that pushes grassroots answers to problems ranging from the obstacles faced by mom-and-pop businesses to disparities in broadband access.  

Seldman, who directs ILSR’s Waste to Wealth Initiative, specializes in helping cities and businesses recover material from the waste stream and add value to the local economy through new processing and manufacturing facilities. For him, growing support for EPR approaches to plastic waste raises a second question: 

Who’s guarding the henhouse? 

LD 1541, which Grohoski describes a polluter-pays arrangement, provides a mechanism by which producers can apply to the DEP to create an alternative collection program. But other legislation goes further, making producers members of the organizations responsible for waste-tracking and fee distribution. That’s the case in Oregon, and it’s the setup proposed by Congressional bills.  

 Seldman characterizes that as an unacceptable usurpation of local control over trash collection and recycling.  

Producers won’t want to invest in recycling innovation, if they can choose instead to get rid of waste cheaply, he said. Given their druthers, he believes producers will direct their EPR fees to dispose of their own waste in the cheapest way possible—by incinerating it. 

“EPR with producer control, it will take all checks and balances out of the public sphere. And we will be mediocre recyclers for the next generation. Because the proper infrastructure for distributed composting, reuse centers, resource recovery parks, dual-stream recycling plants, pay-as-you-throw, minimum content [requirements], all those things will be discarded because the industry doesn’t want them. They want total control,” he said. 

Other groups see industry involvement in EPR advocacy differently. 

The Ellen MacArthur Foundation, a nonprofit devoted to creating a circular economy, for example, is working with more than 1,000 partners, including PepsiCo, Nestlé and Coca-Cola in its push for EPR policies. 

“I think this is extremely important, because while being part of the problem, they must be part of the solution,” said Ambrogio Miserocchi, a senior analyst for the foundation. 

A collaborative approach 

No matter their stance on EPR legislation, recycling advocates can easily find consensus on one issue: As recycling programs across the country shut down due to expense, plastic waste has become a crisis. 

“We have to address it now, probably yesterday,” Miserocchi said. 

While he opposes some of the details in EPR bills, Seldman maintains the local programs can handle the job, but they need more funding to do so. He pointed out that investment in infrastructure is a component of several Congressional bills, including the Break Free from Plastic Pollution Act. He also supports pay-as-you-throw arrangements to cover costs.  

“Every ton of garbage that goes to an incinerator or landfill pays a surcharge,” he said. “That surcharge creates a fund for reinvestment in cities and towns, but the money goes to cities and towns who to determine their own programs to expand, deepen, etc. There’s no control over recycling by independent large corporations.” 

He ticked off approaches well-known to recycling advocates: 

“We have to reduce virgin plastic. We have to recycle, and we have to use the materials for manufacturing new products. We cannot incinerate plastic in any form. It just adds to the danger that plastic adds to nature and the human species.” 

If you ask Grohoski, her state already is making progress. Maine’s EPR law will put more responsibility on corporations to cover the costs of essential services, and create more balance in a system that has put too much burden on municipalities, she said. 

“The law will certainly expand plastics collection opportunities in Maine, because right now recycling programs are piecemeal across the state and this program will make the whole recycling system more uniform,” she said.  

Karen Hanna, senior staff reporter 

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