A new report released Tuesday by the Natural Resources Council of Maine (NRCM) calls into question the amount of industry influence over the Maine Department of Environmental Protection (DEP) in the arena of product stewardship regulations.
What is product stewardship? For years, Maine has required that manufacturers of certain electronic and other products, many of which contain mercury and other harmful toxins, take back the products at the end of their useful life. To encourage the public to recycle them, the manufacturers or their designated recycling corporations offer a small but significant sum. In the case of mercury thermometers, for instance, the sum has been $5. This sum is paid nominally by the Thermostat Recycling Corp. (TRC), which then disposes of the products safely, where the mercury contained within them will not enter the water table, end up in the ocean food chain, or pollute the air.
Product stewardship is an important goal for the Maine Legislature, as well, and until this year’s report, appeared to be a critical goal for the Maine DEP. But in the 2012 report, released in December 2011, there appears to be a radical shift away from product stewardship.
In 2011’s report, DEP identified a broad range of benefits from product stewardship, including decreasing demand for landfill capacity, increased recycling, and reduced environmental impacts from various toxic products. In the 2012 report, no benefits are cited.
Although it claims to be a cost-benefit analysis, the report only focused on costs, and according to NRCM, included costs that are inflated or unsubstantiated. For example, the report included the entire salaries for staffers, even though they only work on product stewardship for a portion of their workday. The salary cost estimate of $1,229,461 is based on the statement in the report that “Dedicated human resources within the Department have included three full-time positions, whose sole focus is product stewardship management.” It is not correct that three people are dedicated to this role. Each staffer devoted to mercury collection has other job responsibilities as well. Three staffers’s salaries who are ascribed to mercury collection work instead in lead e-waste, a completely different program. And some reports are simply unsubstantiated; an “other” category totals $331,602 but cites only two costs: printing 40,000 brochures and conducting training sessions. Costs for the brochures and the training cannot be specifically tied to the mercury-abatement program, and in any case, the DEP reports only eight sessions, on average, per year.
In the 2011 report, consistent with legislative intent, DEP identified several possible new product stewardship programs, for instance, lead-based paint, used pharmaceuticals, and household hazardous waste. The 2012 report does not identify any new possible product stewardship programs.
The 2011 report also offers multiple ways to improve implementation, while the 2012 report suggests reducing program costs by combining programs and marketing efforts, collaborating with industry groups, and developing legislation aimed at “sun-setting select product categories where appropriate.”
After reviewing the new report, NCRM submitted a Freedom of Access request to the DEP for all documents related to the development of the report. “Our review of those documents confirms our suspicions that the report was very substantially influenced by representatives of out of state companies that opposed enactment of these laws in the first place,” the NCRM report reads in part. Representatives of the Thermostat Recycling Corp. (TRC), and the National Electronics Manufacturing Association (NEMA) in particular appear in many of these documents, demonstrating that they had a new and easy access to the Maine DEP under the LePage administration. In a letter to a legislator in June 2011, the DEP said it was committed to a robust stakeholder process, but no meetings with other stakeholders, other than the industry representatives, occurred during the development of the 2012 report.
Samantha DePoy-Warren, spokesperson for the DEP, said that the report itself was not mandated, and that there was no requirement that other stakeholders be brought into the process. “Our goal is to improve the programs, increase recycling, and get feedback,” she said. “We should be getting industry feedback as well as feedback from environmental groups.”
After a careful review, NRCM released its findings, based on the DEP report and the FOAA documents. Following are the major concerns the council has about the DEP report, especially on the issue of industry input:
- Gov. Paul LePage targeted the product stewardship programs in his first month of office, as part of his “Phase 1 Regulatory Reform” process.
- During her first week, then-Deputy Commissioner Patricia Aho was lobbied by Thomas Doyle, in-state lobbyist for the TRC, asking her to “review Maine’s mercury thermostat recycling program, including the cumbersome financial incentive program.”
She then released an email suggesting that the product stewardship report should be rewritten.
- DEP launched an “audit” of the program in spring 2011, and assigned the task to a very junior staff member who had previously been in a completely different department, in an administrative role.
- This staff member, Aho, and Ron Dyer, who is the director of DEP’s Bureau of
- Remediation and Waste Management, met with TRC and NEMA more than 10 times during the production of the report and prior to production. In a letter in late June to Rep. Melissa Walsh-Innes, Aho promised “an active stakeholder process,” but never followed up to initiate stakeholder review.
- Aho intervened in the legislative process at the behest of Doyle (the TRC lobbyist) to strike provisions in a DEP-proposed bill that would have enhanced performance of the thermostat-recycling program by increasing the incentive.
- DEP staff who had been responsible for managing the current five stewardship programs were deliberately excluded from drafting the 2012 report, and in fact did not see the report until it was posted on the DEP website.
Public input has been striking. Of the 341 comments received, expressing strong opinions about the 2012 report, only seven were in favor of the report. Tellingly, all seven were from industries that are directly impacted by it. The remainder were strongly opposed to the new report.
DePoy-Warren said that she could not speak to the personnel issues involved, but that the department’s only desire was to improve the program. “We shouldn’t have to apologize for that,” she said. “Our door is open to anyone who has an idea to share with us. In the last couple of months, we’ve seen NRCM as well as industry people. That’s how it should be.”