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EPR Packaging Laws: Submission of the First Stewardship Plan

Updated: Dec 28, 2023

Since July 2021, when Maine passed the nation's first extended producer responsibility ("EPR") packaging law, four other states (Colorado, Oregon, California, and Maryland) have enacted EPR packaging laws. For brevity, we refer to these laws as packaging laws, but non-packaging materials are also covered under these laws (varying from state to state) including certain paper products and foodservice ware -- with plastics as a targeted material in all these programs.

These EPR laws, in various forms, impose responsibility on manufacturers of products (and in some cases, other parties) known as "producers" for post-consumer management of their products. California's program also imposes source reduction requirements on producers.

While EPR laws have been around for years for specific products (e.g., for mattresses and batteries), the new EPR programs introduce a sweeping new regulatory scheme, comparable in scope and complexity to the first federal programs decades ago regulating solid and hazardous waste, which were subsequently used as the model for similar state laws. For various reasons (including disparities in regional recycling needs), the EPR programs are taking hold on a state basis rather than a federal level, meaning there is no "top down" template for the programs.

All the EPR programs share common objectives and features, however, they also differ in significant respects. For example, in California, covered materials are single use packaging and plastic foodservice ware, whereas in Oregon covered materials are packaging, foodservice ware (plastic or paper), and printing and writing paper. In Colorado and Maryland, the PRO conducts the initial study to evaluate recycling needs (a "needs assessment"), whereas in other programs the state agency conducts the needs assessment. Moreover, each of these programs are in different stages of development, with varying timelines for and sequencing of various tasks.

Excepting Maryland (which has authorized an initial study rather than a full-fledged EPR program), one common feature of these programs is that producers must join a producer responsibility organization ("PRO") (referred to as a "Stewardship Organization" in Maine's program) -- unless they meet stringent eligibility requirements for individual compliance.

With some variations from program to program, the PRO(s) must collect fees from producers to subsidize the program, evaluate and take necessary action to maintain responsible end markets, achieve the required recycling rates for covered materials using approved recycling methods, administer the PRO, take action when members fails to comply, and raise a host of other fees.

Some of the leading producers in the United States, who are involved in EPR and sustainability programs on a global basis, have founded a non-profit organization, Circular Action Alliance ("CAA") to serve as a PRO in all states with EPR packaging and paper laws.

Each state requires the potential PRO(s) to submit an application, and the state then approves or selects the PRO(s). Some states allow multiple PROs (although it is unclear whether multiple applicants will apply) either now or in the future. CAA has already been selected as a PRO in Maryland and Colorado and has announced intentions to submit PRO applications to the remaining states by the respective timelines established under each state.

Another common feature of EPR programs is the preparation by the PRO of a stewardship plan, which must provide a relatively detailed roadmap for how the PRO intends to achieve program objectives and administer the PRO. Oregon's Plastic Pollution and Recycling Modernization Act ("SB 582") identifies almost fifty specific elements that must be included in the Producer Responsibility Program Plan ("PRO Program Plan"), which must be submitted as part of the PRO application process.

CAA has filed a notice of intent indicating that it will submit a PRO Program Plan to the Oregon Department of Environmental Quality ("DEQ") by the March 31, 2024 deadline for submissions.

Every state's program has unique features which must be addressed in their stewardship plan. For example, while other programs provide for alternate curb collection, Oregon's program already requires a PRO to arrange for collection of certain specified covered materials (e.g., block white polystyrene -- a notoriously difficult-to-recycle plastic). Otherwise, under SB 582, as is the case with other states, municipalities will retain responsibility for the collection of covered materials but the PRO must raise fees from its members to reimburse the municipalities for the increased costs associated with the EPR program (e.g., infrastructure upgrades).

The PRO Program Plan will also include many elements common to all the EPR packaging programs -- such as how the PRO will fund and implement the program, the identification of end markets, methods for recycling, how it will administer the PRO, and how it will raise fees from its members.

In conclusion, CAA, a contender for the PRO in all states with EPR programs, will be submitting a PRO Program Plan to the DEQ by March 31, 2024 -- the first such stewardship program to be submitted to any state agency under these programs. While the Oregon PRO Program Plan will be unique to Oregon's program, the PRO Program Plan will also address features common to other EPR programs, and should be of interest to everyone tracking the developing EPR programs.

This article is not intended to be and should not be construed as legal advice nor should it be relied upon for any purpose. The applicable laws and facts discussed in this article may change over time and this article may not be updated to reflect those changes.



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