The final bill builds on previous legislation, resulting in an EPR program that will take shape in 2028. | Evan Lorne/Shutterstock
After five years of work and many interim steps, Maryland became the sixth U.S. state to pass extended producer responsibility legislation for paper and packaging, continuing the policy’s evolution in the country.
Sent to the governor on April 7, SB 901 would direct a producer responsibility organization to set goals for post-consumer recycled content, recyclability, recycling and reuse rates, source reduction, composting rates and contamination reduction.
However, it also builds on newer elements, such as a phased-in approach to reimbursement, seen last year in Minnesota’s law, and would also allow multiple PROs to operate from the start of the program. This differs from most other states with EPR, which mandate one PRO for the first few years.
Sen. Malcolm Augustine, a Democrat representing part of Prince George’s County and the primary sponsor of the bill, told Resource Recycling that it took plenty of stakeholder meetings and compromise to reach this point, and he feels the bill is a win for the economy and the environment.
“We’re just doing really important work that’s both economic and environmental, with the efficiency all kind of rolled up into one,” he said. “So that’s just really exciting and I’m really proud to be a part of that.”
Final text builds on previous legislative effort
SB 901 follows an attempt to pass packaging EPR in 2023, which instead resulted in a needs assessment involving producer responsibility organization Circular Action Alliance. That recently submitted assessment found that EPR for paper and plastic packaging could increase the state’s annual collection by more than 50%, from 984,400 tons to 1.5 million tons.
Under SB 901, the PRO would have to submit a five-year producer responsibility plan by July 1, 2028, and carry out a statewide needs assessment once every decade. Before passage, the bill was amended to add reusable packaging and reuse systems to the needs assessment.
The performance goals are set by both the PRO and the state, and must be based on the results of the most recent statewide recycling needs assessment. Those goals will be laid out in the PRO plans, and must include recycling rate targets for each covered material type for five-, 10- and 15-year intervals.
The PRO would also set fees to allow for improvements to the system and reimbursements to local governments for up to half the cost of collection, along with the full cost of transportation and processing.
Fees would have to include eco-modulation factors, according to the bill, and reimbursement rates would have to account for population size, distance to MRFs and other socioeconomic or geographic factors the state chooses.
It covers packaging, beverage containers and organics and calls for reimbursement of at least 50% of the cost per ton by July 1, 2028, rising to 75% in 2029 and 90% in 2030.
Augustine said he was particularly pleased with that phased-in increase, because in the 2023 bill, he said 50% was the highest percentage producers would agree to.
“Up to 90%, that’s awesome,” he said. “We already had arguments and fights only to be able to get to 50%,” so to get higher this year was a win.
The bill also has some exceptions. A de minimis producer – one that in its most recent fiscal year either introduced less than 1 ton of covered material into the state or earned global gross revenues of less than $2 million – is exempt from some aspects of the bill.
Some manufacturers also are excluded from the bill’s definition of producer, such as mills that use any virgin wood fiber in their products or that produce containerboard made from 100% recycled content.
“Recycling” is defined as the process of “collecting, sorting, cleansing, treating, and constituting materials that would otherwise be disposed of and returning them to or maintaining them with the economic mainstream in the form of recovered material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace.”
The bill does not count landfilling, combustion, incineration, energy generation, fuel production or use as alternative daily cover at a landfill as recycling.
Finally, the bill also establishes a system for producers to request that the state classify specific packaging as exempt.
A type of packaging can only be approved as exempt if a specific federal or state health and safety requirement prevents it from being reduced or made reusable, recyclable or compostable, and any exemptions expire after two years.
Augustine noted that many of the exemptions were intended to help tailor the program to fit Maryland.
“We had already worked with the different stakeholders to come up with some of the things that were specific to our restaurants, specific to our system of recycling – where we had single-stream and dual-stream – we’re taking those into consideration,” he said. “And then also some of the other things, like dealing with other exemptions that were specific to our state.”
Chaz Miller, who runs Miller Recycling Associates and is also the chair of the Maryland Recycling Network legislative committee, said much of the lobbying in Maryland was similar to that in other states, but “the bill is somewhat unique in the sense that there’s not a lot of rates and dates in the bill itself.”
Much of that is left to the state and PRO, he said, and the Maryland Recycling Network chose to focus more on getting the bill language to work for the state.
He has some remaining questions about timelines and dates – for example, as he reads it, reimbursement starts the same date the PRO plan is submitted for approval, and it would be tricky to reimburse providers without the an approved system – but he added that “I don’t think anyone has written the perfect EPR bill.”
How it came to be
Augustine said his interest in EPR started when he first looked at ways to reduce single-use plastics more than seven years ago. After a bill enacting a ban failed to take off, he started to look at the bigger picture, and saw that “the way the packaging was set up in our state, it really just put all the burden onto the end user, the municipalities to figure out how to deal with it.”
He said he felt that there was “no skin in the game” for producers and no incentives to reduce packaging or to make it easier to recycle. “Then I learned about how there was another way.”
EPR provides incentives and the opportunity to increase reuse and recycling, he said, and it was already in place around the world, Augustine said, which drew him in. He sees the 2023 and 2025 bills as continuations of each other, building on past work and compromise that had been done until everybody felt ready.
“If you really look at it from a continuation standpoint, we simply broke our process into two parts, where some of the other states have done it more like in one,” he said. “We broke it into two, where we created the PRO, where we created the advisory council, where we required the needs assessment – all of those are sort of first steps for successful EPR programs.”
Miller said the Maryland Recycling Network did not support the first bill that was introduced, as at just 11 pages long, it was too vague. The organization worked closely on the latest iteration to make sure it was a good fit for Maryland’s systems.
In Maryland, the 24 counties and the City of Baltimore have the basic responsibility for solid waste and recycling. But under state law, the 153 municipalities also have a lot of leeway to make their own choices, he added.
Overall, the state has seven MRFs, four that are publicly owned and three that are privately owned and operated. Some are dual-stream, some are single-stream, and some of the county-run facilities only accept material from within the county.
Combined with Maryland’s “very peculiar state shape,” that led to some potential issues with some common EPR program language, such as requiring that material go to the closest MRF or an in-state MRF, he said. For example, municipalities on the eastern shore primarily use a MRF in Delaware.
Maryland also has many subscription accounts, meaning they opt into collection through a private service provider rather than having it automatically provided as a government service. The needs assessment showed as much as 38% of households are subscription-based, Miller noted, which meant SB 901 needed to include language that would allow for both public and private MRFs to continue their normal operations.
“That’s why there’s very specific language in the Maryland law, which is intended to protect both local governments and private service providers normal operational abilities to control their own operations,” he said.
It also helps clear up questions like who makes the final decision on investing. Miller noted a potential situation where a MRF wants new equipment that may not necessarily align with the PRO plan, which is why he made sure there was bill language that kept final control with operators.
“The PRO is not an ATM,” he said. “Who has the final decision?”
Augustine recommended looking to other states for best practices and lessons learned, and said partnering with the Product Stewardship Institute helped immensely.
“The folks at the Product Stewardship Institute were really, really helpful to me and we’ve been partners on this for literally the whole time,” he said. “They have a level of expertise in the space that I think is just worthwhile for folks to really talk to them, engage them.”
The Product Stewardship Institute worked on the first bill in 2021, along with Trash Free Maryland, and provided policy analysis and technical assistance. A press release noted that the final bill “incorporates elements from PSI’s national packaging EPR model and mirrors key provisions enacted in other leading states.”
“By aligning with best practices from other leading states while including several new elements, Maryland positions itself as a national leader in sustainable materials management,” Scott Cassel, PSI CEO, added in the press release.
Augustine added that a benefit that PSI brings is being more neutral – they want to see EPR passed, but “they are not on the brand side, they’re not on the recycling facility side.”
Producers express consternation
Not everyone is pleased with the final bill.
The American Forest and Paper Association has called the bill “misguided.”
“EPR programs are helpful for materials that don’t have strong end markets or aren’t highly recycled,” the association wrote. “Paper is a highly recycled material with strong end markets. That’s something Maryland lawmakers overlooked.”
AF&PA added that between 2019 and 2025, the paper industry has finished or plans to complete new mills or mill upgrades that will use more than 9 million tons of recycled paper.
“Our industry is increasing the use of recycled paper in new products. We’re also working to increase the percentage of our products that are recyclable,” the statement noted. “This success has been driven by our industry’s private investments in recycling infrastructure over decades. Any EPR program must fully and fairly credit our early and voluntary actions to increase recycling in Maryland and across the country.”
Augustine acknowledged that not everyone will agree.
“We still have the parts that are a little bit contentious,” he said. “Legislating is compromising, so it’s best to find those places where people have made those compromises already and to use that as a good starting space.”
“Hearing equal levels of grumbling from both sides” suggests that a bill is sitting in a workable space, he added, as “the job of the legislator is to be discerning and to find the common ground, but it’s a whole lot easier to do that if you are hearing the different positions of the different groups.”