Maine is moving ahead with its packaging EPR rulemaking process, with a key December deadline for submission to the state’s Board of Environmental Protection approaching fast.
Brian Beneski, supervisor of recycling programs for the Maine Department of Environmental Protection (DEP), said in an email that the first set of draft conceptual rules for the state’s packaging extended producer responsibility program was released for public comment in early September, and the last of the draft rules were sent out in early October.
The agency has tried to ensure industry groups and companies have the time they need to offer feedback.
“We’ve been approached by several parties to extend the date that we would receive comments back on these conceptual rules, so we moved the date for input to October 31st,” he added.
The draft rules dive into critical details, such as the process for determining covered materials and for reimbursing local governments on waste costs, that have not previously been clear to all stakeholders.
Maine is one of four U.S. states that have passed packaging EPR laws mandating that brands and other packaging stakeholders cover the cost of some or all of the covered materials that move through the state’s recycling system. All four states are now working to hammer out the specifics of how programs will run.
In the industry, many questions have swirled around how the Maine program will operate, in part because it is the only state in which producers are being asked to directly reimburse cities and towns for recycling and disposal expenses.
Reimbursements begin in 2027
In Maine, state officials are working to review comments and update the draft rules that will be submitted to the state Board of Environmental Protection. Some changes have already been made based on earlier rounds of feedback.
The formal rulemaking from the board needs to be initiated by Dec. 31, so the EPR team is planning to submit the draft rules at the Dec. 21 meeting.
After that, the board is expected to adopt the routine/technical rules and approve the provisional adoption of major substantive rules by summer 2024. Final adoption of the major substantive rules will take place by spring or summer of 2025. At that point, an RFP will go out for the creation of a stewardship organization (SO), the entity through which producers will fulfill their requirements under the law.
The Maine EPR program is slated to begin in 2026, with the first municipal reimbursements going out in 2027.
The legislature also needs to approve the major substantive rules, which will be submitted to them in January 2025.
As has been seen in packaging EPR programs in other states, stakeholders have expressed a variety of views about what Maine officials should include on the list of covered materials under the new framework.
Among the comments to Maine DEP is one from New Hampshire-based plastics recycling testing lab Plastics Forming Enterprise, which noted that “this is a very dynamic period for the plastics recycling industry” and argued it is “imperative for Maine, and every other state, to review and update ‘readily recyclable criteria’ at a minimum on an annual basis.”
However, the Retail Association of Maine voiced concerns that if a material’s determination were to change annually, “producers will not be able to change production methods quickly to accommodate such drastic changes.”
The group suggested transition periods for when materials change status, which is reflected in the draft rules.
The Maine law, which was signed in 2021, marking the first time a U.S. state had ushered in packaging EPR, left multiple details to be hashed out in the rulemaking process, including information on municipal reimbursements, the process for determining producer payments, producer and municipal reporting requirements, which types of packaging are considered readily recyclable, and more.
According to the 45 pages of rule drafts, a participating municipality must be reimbursed both for the cost of managing packaging material that is recycled and the cost of managing packaging material that is not “readily recyclable,” as defined in the draft rules.
That includes labor cost, equipment cost, structure cost, energy cost and overhead paid. Profit for processors is also factored in.
The reimbursable cost is calculated by determining the cost per ton of managing each packaging material through annual reporting, consultations and audits.
For packaging material types that are not readily recyclable, municipalities will be reimbursed for their per-capita shares at the median per ton cost.
The per capita share is determined by dividing the statewide total tons of packaging material that are not readily recyclable by the state’s population and multiplying that figure by the municipal population.
For example, if 1,000 tons of packaging material that are not readily recyclable are sold in the state in a program year, the per-capita share would be 1,000 divided by 1.372 million (the 2021 statewide population), multiplied by whatever a given municipal population is. For Biddeford, Maine, population 22,569 in 2021, the reimbursement rate would be 16.45.
That rate would then be multiplied by the median per-ton cost for the given year to derive the city’s reimbursement amount.
What is readily recyclable?
The process for creating the initial packaging material types list and readily recyclable list is also laid out in the draft.
An item will be considered readily recyclable if there are at least three operational remanufacturing facilities for the material type with the capacity to recycle it in quantities equal to or in excess of the amount of material collectively supplied.
In addition, the recycling process the facilities use must safeguard the environment and human health, the draft states.
“Recycling processes that are inconsistent with applicable laws and conventions, or that are known to result in the release of material into the environment are examples of processes that do not safeguard the environment and human health,” the rules noted.
Items on the readily recyclable list must also be “common” in the packaging stream, or make up at least 1%, by weight, of the total packaging material collected.
They must also have at least a 60% recycling yield by weight. Recycling yield is defined as the percentage of the amount of material that is collected that is ultimately recycled.
Program performance assessment and producer payment adjustments will be based on how well producers hit the program goals set out in statute.
According to the documents, material reduction goals are a total weight of packaging material reduction of no less than 15% from 2030 to 2039, 30% from 2040 to 2049, and 50% from 2050 onward. Refill targets are to achieve no less than a 10% reduction from 2030 to 2039, 20% from 2040 to 2049 and 30% from 2050 onward.
“If a goal is missed, beginning the following calendar year, and continuing every year in which the goal remains unmet, the department will dedicate a percentage of investments to projects supporting reuse and refill,” the rules state.
As for post-consumer recycled material, the targets are at least 10% from 2030 to 2039, 20% from 2040 to 2049 and 30% from 2050 onward for each base material.
In that case, if producers do not hit the goals, then the post-consumer recycled material incentive fee will be increased by the difference between the goal and the realized figure.
Similar fees will be assessed under the draft rules if goals on recyclability and litter reduction are not met, but not if participation, collection and recycling goals are not met.
Producers must report annually to the stewardship organization. The draft rules direct producers to share information on brand, UPC, units produced, packaging material type, total weight of the packaging and the component, post-consumer material content, refill options, and whether the producer can certify the absence of toxics.
Producers that produced less than 15 tons of packaging material total during the prior calendar year only need to report the tons of packaging material produced and “information on their use of refill or reuse systems, post-consumer recycled material content and toxics.”