Freedom of Access Act (FOAA) Analysis of DEP Documents Related to the 2012 Report, “Implementing Product Stewardship in Maine” Yields Industry Paper Trail
Today, the Natural Resources Council of Maine released an analysis of documents that reveal how a recent Department of Environmental Protection (DEP) report was substantially influenced by representatives of out-of-state companies that opposed enactment of Maine’s product stewardship laws (1) in the first place, are working to defeat similar laws in other states, and who received easy and preferential access to top DEP officials in the new LePage Administration. The NRCM analysis is based on documents acquired under Maine’s Freedom of Access Act (FOAA) law.
The DEP report Implementing Product Stewardship in Maine, released in late December for public comment, addressed five product stewardship programs administered by the state that have reduced mercury and lead pollution to Maine’s environment, diverted millions of pounds of waste from Maine’s landfills and incinerators, and saved money for taxpayers and municipalities. The five product stewardship programs (2) were adopted with overwhelming bi-partisan support.
But rather than focusing on the benefits of these programs to Maine people and the environment, DEP’s Product Stewardship report presents a surprising assault on the product stewardship programs, including a recommendation to consider their termination. NRCM reviewed hundreds of internal DEP emails, memos, and documents related to preparation of the Implementing Product Stewardship report.
“Our review shows that senior DEP officials have maintained an open door policy for out-of-state manufacturers interested in undermining Maine’s product stewardship programs and a closed door policy to all other stakeholders—including interested lawmakers, internal DEP staff who manage the programs, municipalities, and public interest organizations,” said Abby King, NRCM Product Stewardship Advocate.
“Industry representatives have been gunning to weaken product stewardship programs here in Maine so that they don’t face similar programs in other states,” added King. Findings from the NRCM analysis include the following:
• Senior DEP officials met with representatives of the Thermostat Recycling Corporation (TRC) at least 10 times over the past year. TRC is comprised of Honeywell, GE, and Westinghouse, and they have long opposed Maine’s thermostat recycling program—even as Maine’s program has proven to be one of the most successful of its kind in the nation.
• In a response letter to State Rep. Melissa Walsh Innes (D-Yarmouth), then Acting DEP Commissioner Patricia Aho committed to supporting a “robust” stakeholder process on product stewardship—but no effort has been made by DEP to initiate such a process. Quite the contrary, the letter to Rep. Innes was sent two days after Aho met with TRC, and DEP held multiple additional meetings with TRC over the past seven months. No effort has been made to engage other stakeholders in a meaningful way.
• TRC recommended in February 2011 that DEP conduct a “review” of Maine’s thermostat recycling program. DEP launched such a review, receiving input through private channels from TRC throughout this review period. And when the review was complete, with a recommendation to possibly terminate some product stewardship programs (including possibly the thermostat program), TRC “fully supports” the effort to sunset the program.
• Senior DEP officials delegated the role of “reviewing” Maine’s product stewardship programs to a newly reassigned staff member, Kerri Malinowski, who was not previously familiar with the programs. DEP staff members who manage Maine’s product stewardship programs were deliberately excluded from providing information.
• DEP’s review of Maine’s product stewardship programs resulted in a seriously flawed report that is rife with inaccurate, unsubstantiated, inconsistent, and incomplete information, as demonstrated by the strong concerns voiced in public comments. More than 308 individuals and 34 organizations submitted comments in opposition to DEP’s report, compared with only seven letters of support—six of which were from out-of-state manufacturers.
Maine is not the only target of concerted attacks on product stewardship programs designed to shift some taxpayer-funded recycling costs to the manufacturers that produced the products. Indeed, many of the very individuals who have been frequenting the offices of DEP this year have been traveling through the halls of state government elsewhere. In California, for example, the Thermostat Recycling Corporation (TRC) is fighting regulations that would impose collection rate standards on that state’s thermostat recycling program. “Policy-makers in California are looking to Maine’s thermostat program as a guideline for ways to improve our program,” says Annie Pham of Sierra Club California. “But TRC is working hard against us, even as their voluntary thermostat collection program shows a pitiful first-year collection rate of 3.2%.”
Similarly, in New York, the thermostat industry has spent $90,000 in the past two years lobbying to block passage of an effective thermostat collection program. “The pattern of the thermostat industry in New York is to cover up the success of Maine’s collection program and tout their voluntary collection program instead,” said Laura Haight, senior environmental associate with the New York Public Interest Research Group.
In 2008, according to TRC’s collection data, Maine’s per capita thermostat collection rate was the highest in the nation, and more than 20 times higher than New York’s. After 2008, TRC stopped making its data available to the public.
NRCM carefully reviewed public comments submitted to DEP by the January 16 deadline, and from that analysis created a long list of errors, omissions, and inconsistencies in DEP’s report. (Appendix D of the report)
“Although we’re not particularly surprised by the extent to which out-of-state lobbyists have been pounding down the doors at DEP, we are troubled to see how eager DEP has been to assist industry in trying to undo programs that are working well for Maine people,” said King.
“DEP’s product stewardship report presents such a flawed, incomplete, and biased view of Maine’s product stewardship programs that the report should be retracted,” said NRCM Advocacy Director Pete Didisheim. “The report’s content and conclusions are so obviously indefensible that the report’s continued appearance on the DEP website reflects poorly on the credibility of the DEP.”
1 Maine’s product stewardship programs, passed with overwhelming bi-partisan support, are focused on toxic and troublesome products in the waste stream and require manufacturers to establish collection systems to recycle or properly dispose of them.
2 The programs addressed: mercury-added lamps; mercury switches in motor vehicle components; mercury-added thermostats; electronic waste (e-waste), and dry cell mercuric oxide and rechargeable batteries.