UPDATE: June 18, 2021: Maine could become the first state to pass a law establishing some form of extended producer responsibility (EPR) for packaging after legislators in both chambers passed a high-profile bill (LD 1541). Following approval by the Maine Senate early this morning, the bill now heads into additional funding and procedural steps before going to Gov. Janet Mills for a final decision.

This comes after a related New York bill (S1185) failed to gain traction before the state's normal legislative session recently ended. The bill's sponsor, state Sen. Todd Kaminsky, did not respond to a request for comment on next steps. Sources report the bill is likely to return in a future session.

Dive Brief:

• April: Extended producer responsibility (EPR) bills for packaging are among the top priorities for lawmakers in New York and Maine, panelists said at the Plastics Recycling Conference April 7. 
• New York Sen. Todd Kaminsky said he thinks his EPR bill has a fair chance of passing before the state’s legislative session ends in June, even though environmental groups such as the New York League of Conservation voters said they were "disappointed" the bill was not included in the recently passed state budget.  
• Maine Rep. Nicole Grohoski, who is drafting a similar packaging bill she plans to introduce "soon," is already promoting the measure as a way to increase the state’s recycling rate. The Natural Resources Council of Maine (NRCM) anticipates a rival bill, possibly backed by packaging industry group AMERIPEN, also could be introduced soon.  

Dive Insight:

Kaminsky and Grohoski’s bill updates – and their vocal support of EPR as a critical recycling and waste reduction strategy – come as about a dozen states saw proposals related to EPR for packaging this year, though models differ. The Break Free From Plastic Pollution Act, which includes a federal EPR bill for packaging, was reintroduced March 25.

Both Kaminsky and Grohoski envision their bills as models for other states, but some critics say their version of EPR puts too much control in the hands of brands to make the rules and not enough control in local municipalities that need funding for recycling infrastructure. In some states, MRFs and haulers also worry EPR laws could disrupt their longstanding contractual relationships.

In Maine and New York, lawmakers say they want to improve recycling rates and shift rising costs away from cash-strapped municipalities. Grohoski and Kaminsky also made the case that their packaging-focused EPR will motivate producers to create packaging that can be more easily recycled and contain more recycled content. 

Kaminsky hopes New York will become the first state to establish an EPR program for packaging via his bill, S1185. Under the bill, producers would have to finance the recycling of their paper products and various packaging materials but also would be incentivized to reduce their packaging or use more recyclable materials. The bill includes exemptions for small businesses or producers under certain revenue or waste generation thresholds.

If passed, based on current bill text, producers would not be able to sell or distribute "covered materials" within three years of the bill's passage without an approved plan. Producers would need to meet state minimum post-consumer recycled content rates and minimum recycling rates for their products, but they could decide how best to meet that goal either on their own or as part of a producer responsibility organization. 

Kaminsky said this model, which leaves management control mainly in the hands of producers, could be a key to helping the bill pass in New York because it helps create buy-in from big-name brands. At the same time, he said, "municipalities love this idea to know that they're going to get money to invest in their recycling infrastructure, that this is something that they could take off their taxpayers for a large part."

The bill has received support from New York City’s Department of Sanitation and others, but critics include New York’s Business Council, which says the model is not practical. Kaminsky said some local magazine and newspaper publishers also worry the bill could hurt their print production, since some paper is included in the packaging bill. As for critiques about a producer-led system possibly not getting critical funding to local governments, Kaminsky said he believes the state has a strong oversight plan, and he expects to hear quickly if municipalities report problems.

The tension between municipally managed EPR systems and producer-managed systems is playing out in other states, including Hawaii, where two competing EPR bills for packaging are in play: HB1316 calls for packaging producers to be responsible for the management of waste "while ensuring minimal social and environmental impact," while SB1419 would establish a municipal product stewardship program,

In Maine, Rep. Grohoski plans to introduce an EPR bill with a similar model as New York’s. 

The bill text is still being finalized and has not been introduced, but Grohoski said it would call for the creation of a stewardship organization to handle packaging, with oversight by Maine’s Department of Environmental Protection. Fees the stewardship organization collects would be based on the amount and type of packaging used in the state, and they would be distributed to municipalities to support recycling programs or education. Currently, municipalities are paying higher costs to manage packaging, and those costs are carried over to taxpayers, she said.

Packaging is about 40% of Maine’s waste stream, and Grohoski says an EPR model specific to this type of material would help the state’s long-standing 50% recycling goal. Maine’s current reported recycling rate is 36%. "At this point the status quo is just really not working, we've had a goal in the statute since the 1980s," she said.

Grohoski says "eco-modulation" is another major facet of her bill. The approach would require producers to pay higher recycling fees for products that are harder to recycle or don’t use recycled content. "We're really trying to use this policy to incentivize not just less packaging but also better packaging," she said. 

During a webinar on Friday outlining Grohoski's plan, Sarah Nichols, Sustainable Maine director for NRCM, said she anticipates seeing a competing bill introduced soon. AMERIPEN has not yet responded to request for comment on its role in creating or backing a separate EPR bill in Maine. The group had opposed to EPR programs in the past, but it began signaling that it might change that view earlier this year.

Additional reporting by Cole Rosengren