After spending too many hours in legislative hearings for EPR laws here in the Northeast, there remains an underlying question as to how these programs can scale to the national level while relying on so many different state laws. PaintCare’s approach to developing and passing legislation in a state-by-state approach, carefully crafted to match their capacity to take on new programs has proven to be one method. It requires the full embrace by an industry to take responsibility for their product and a commitment to engage in the political process year over year.

However, when we begin to look at EPR programs that are multi-product, such as packaging, it begins to get more complicated as there is really no over-arching organization that is able to coordinate the positions and efforts of the set of covered products. Looking at the variety of ways that EPR programs have developed and implemented throughout the EU, a much looser economic federation,  we have in place in the US can help advocates in the US see the obstacles and hurdles in the future.

This article in BusinessGreen highlights some of the important questions, where we can substitute US state governments for EU national governments as the primarily responsible entities.

At the core, I wonder as to the value (perhaps necessity) of an effort to standardize systems across every state in order to avoid needless complexity, bureaucratic redundancies, and administrative costs to any given program. For example, take a look at page 65 of PaintCare’s 2015 Oregon Annual Report, where it lists its national financial statement. With administrative costs over $3.6 million for programs in 8 states and the District of Columbia, would there be opportunities for lower costs if there were a national directive or policy in place creating consistencies between states? My opinion is that the PaintCare program is likely positioned to be minimizing these costs in structure and methodology, but that future programs may not be so effective without the backing of a national trade association like the American Coatings Association.

Is there a possibility in the US for any type of national coordinating effort around EPR like the EU Directives or Canada-wide Action Plan for EPR?

Given the Resource Conservation and Recovery Act of 1976, this question actually gets further subdivided into whether the products or packaging are hazardous waste. State specific EPR programs in the United State, while addressing toxic materials such as mercury products, have not sought to address EPA designated hazardous waste. Such waste is the exclusive jurisdiction of the federal government, unless programs are delegated to the states by creating comparable local programs. Household hazardous waste and the generally non-toxic material designated as municipal or industrial, commercial and institutional waste, have been the target of state EPR programs, ranging from mercury lamps to mattresses.

Unless advocates aim to rewrite provision of RCRA, this division of waste responsibility will continue to exist. The only federal guidance that can be expected now would be those hazardous wastes where EPA already has the power to regulate. I cannot claim to know whether EPA has the power or authority to meet its Hazardous Waste management requirements through and EPR program, so long as it is consistent with the requirements of RCRA.

As for all the other forms of waste, states have a lot of latitude as to how they manage what is generated and disposed of in their state, so long as it meets the minimum requirements established in RCRA. The absence of federal regulation of these materials means that national guidance would need to come from a non-Federal Government source. PaintCare is achieving this through their trade association, as is the emerging Mattress Recycling Council, in partnership with the enactment of state-by-state legislation. The Thermostat Recycling Corporation is a trade association driven project, though its primary purpose appears to be avoiding any type of state regulation.

Another concept that is getting some play in the legislative discussion around EPR for packaging is the potential for a multi-state compact. Akin to what has been created through the Regional Greenhouse Gas Initiative, states could decide to work together in creating a program that covers those states. Such an act would require a governor’s agreement with the explicit ratification of the legislatures in each state. While this would create consistency between states, likely an outcome supported by industry, the governance and oversight of such a program would have to be shifted to an currently non-existent entity comprised of representatives from each state.

There is a lot of promise and potential in this formulation, if and when there is sufficient political will to bring about consistent Extended Producer Responsibility programs between and amongst the states.