Senator Saviello, Representative Tucker, and members of the Environment and Natural Resources Committee. My name is Pete Didisheim, I am the Advocacy Director for the Natural Resources Council of Maine, and I appreciate this opportunity to testify on the three bills before the Committee that would create product stewardship programs for carpets (LD 375), mattresses (LD 349), and certain rechargeable batteries (LD 385). We are testifying in support, with suggested amendments, on the first two bills, and neither for nor against on the battery bill.
NRCM has worked with this Committee, the Department of Environmental Protection (DEP), and various industry representatives and other stakeholders to develop and enact a series of product stewardship laws in Maine. The state currently has seven product stewardship laws that mandate some level of manufacturer (producer) responsibility for proper product management at the end of life of these products. Each of these laws was reviewed in DEP’s 2017 Implementing Product Stewardship in Maine report, delivered to this Committee two weeks ago. NRCM was pleased to see the excellent description of benefits and positive performance for each of the seven individual programs reviewed in that report, including:
- Preventing more than 620 pounds of mercury from ending up in Maine landfills and waste-to-energy facilities. This is a highly beneficial outcome, given the toxicity of mercury and the efforts by Maine policymakers to reduce mercury pollution in Maine’s environment;
- The collection of 82 million pounds of electronic waste (e-waste), with a high rate of recycled computers per capita (9.2 pounds per capita); and
- An excellent start for the architectural paint program, with 93% of Mainers living within 15 miles of a collection site, and more than 88,000 gallons of latex and oil-based paint collected for recycling in the program’s first year.
The report contains other useful performance data, demonstrating that Maine’s product stewardship programs are doing an excellent job removing toxic or problematic materials from the waste stream.
The three product categories before you today are logical candidates for product stewardship laws. Close to 5 billion pounds of carpet are discarded annually, most of it ending up in landfills. More than 15 million mattresses and box springs are disposed of each year. And EPA estimates that Americans purchase three billion dry-cell batteries every year. Each of these is the subject of product stewardship programs in other states and jurisdictions, so we are pleased that Senator Saviello has introduced legislation to spur the development of such programs here.
That said, we do have some comments on the bills.
- For carpets and mattresses (LD 375 and LD 349), the definition of recycling should not include incineration, energy recovery, or energy generation. Section 1.N in the mattress bill and Section 1.L. in the carpet bill define “recycling” to include “incineration or energy recovery or energy generation by means of combusting unwanted products, components and by-products with or without other waste.” We urge the Committee to drop this sentence from the definition of recycling because incineration and energy recovery are not recycling.
While these disposal strategies may remain options if stewardship programs are established for these two products, they should not be prioritized in this way with a definition that gives incineration equal status as actual recycling and recovery.
Ideally, the bill would specifically state that incineration, energy recovery, and energy generation by means of combustion should be disposal options of last resort, with the goal of eliminating the use of incineration completely within five years.
Without this change in the definition of “recycling” the product stewardship organizations for these two products (mattresses and carpets) could comply with the law by incinerating essentially all collected items, which should not be an allowable outcome.
Each of the stewardship organizations in these bills is required to submit a plan to the Commissioner which must include various plan elements, including: (Section 1. 2. Submission of Plan. F):
“A description of the method to be used to ensure that, to the extent economically and technically feasible, collected discarded carpet is recycled or otherwise responsibly managed. The program must be designed to give preference to the recycling of discarded carpet over any other disposal method;” (emphasis added)
If the definition of “recycling” includes incineration and energy recovery, then the program established by these two bills might simply be a landfill-diversion program. This is not consistent with Maine’s waste hierarchy, generally accepted goals of solid waste management, and the goal of product stewardship laws. Also, it is not the approach used in the paint stewardship law, which has the following definition for recycling:
“Recycling” means any process by which discarded products, components and by-products are transformed into new, usable or marketable materials in a manner in which the original products may lose their identity but does not include energy recovery or energy generation by means of combusting discarded products, components and by-products with or without other waste products.
2. Include Specific Performance Goals. We believe that each of the bills should include performance goals, in statute, so that the DEP, lawmakers, and the public can assess how the programs are performing. The targets should progress over time, and the stewardship organizations should be held accountable for demonstrating best efforts to meet the goals. Currently, the bills allow the industry to propose performance goals in their program plan. We are not convinced that this approach will yield sufficiently ambitious performance goals. Also, we encourage the Committee to set goals for both product collection and end-use recycling, based on performance data gathered through programs already established in other states and jurisdiction.
- Ensure Robust Education and Outreach. In each of these bills, the product stewardship entity should be required to provide a detailed and comprehensive consumer education and retailer education plan. The current language (Section 1.2.Submission of Plan H) regarding education and outreach could be strengthened to communicate more clearly that this is an element of the plan that is of particularly high importance. The bill could include language requiring the stewardship organization to develop the education and outreach program in consultation with retailers and public education and consumer education experts. Similarly, we believe the language describing the elements of the Annual Report (Subsection 11) can be more robust. The product stewardship entity should be required to provide a detailed assessment (and not just a description) of the education and outreach efforts undertaken to promote the program.
- Provide More Detail about Convenient Collection. As part of its plan, the stewardship organization for each of the product categories is required to provide “convenient, free, statewide collection opportunities.” We encourage the Committee to consider adding additional detail about what “convenience” means, and allow the Commissioner to modify collection requirements over time.
- Protect Local Government from Collection Impacts. For the mattress and carpet bills, collection locations are defined as including (Section 8) municipalities. If this provision remains in the bills, then we believe that the product stewardship entity should be required to pay a market rate for renting space for such collection locations. Local governments, including their landfills and transfer stations, should not automatically be considered as dumping grounds for carpets and mattresses—thereby subsidizing an industry-run collection system. If they are using public land for a commercial venture, then it seems appropriate that the public entities be compensated through rental payments for this use—thereby internalizing costs of the program. Section 8.D. would appear to preclude this, and should be amended.
- Additional Annual Report Requirement. We suggest that the Committee consider adding to the Annual Report (Section 11) a provision requiring the stewardship entity to include information about the annual value of recycled materials sold as a result of the program. This information would help the Commissioner and the Legislature understand the market value for recycling of these products.
- DEP Evaluation of Adequacy of Annual Report. Although the legislation requires each stewardship organization to submit an annual plan (Section 11), it is not clear what happens after that report is submitted. For example, what if the DEP Commissioner concludes that the stewardship organization is doing a poor job? In such a situation, we believe the Commissioner should have the authority to require changes in the program plan and, if necessary, take enforcement actions to ensure that reasonable performance measures are met. Section 5 of the bill allows the stewardship organization to initiate plan modifications, but not the DEP. Such authority may be useful to ensure that the Department can respond properly to inadequate performance.
- Battery Stewardship Bill (LD 385). NRCM supported the battery recycling legislation (LD 1578) proposed during the 127th Legislature and amended by the ENR Committee. We believe that this all-battery bill developed by the battery industry provides the best approach for simplifying collection systems and leveling the playing field among battery manufacturers. Americans purchase an estimated three billion dry-cell batteries annually, but only about one-fifth of those batteries are rechargeable. This leaves a lot of used batteries looking for a place to go, and most end up in the trash.
Maine’s existing Call2Recycle collection and recycling program works reasonably well, but has many “free riders”–batteries manufactured by companies that are not part of Call2Recycle, including batteries that are not rechargeable. Because LD 385 applies only to certain rechargeable batteries, it would provide only an incremental step in capturing used batteries. We recognize that the battery industry has flagged some concerns with the bill, which we assume the Committee will work through, including with regard to the provision of waivers. If these issues are worked through, then NRCM wouldn’t object to passage of LD 385, but we would still prefer that the Legislature adopt the all-battery approach.
I appreciate the opportunity to provide these comments, and would be glad to answer any questions you may have.