APPROVED CHAPTER
JULY 12, 2021 455
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-ONE
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H.P. 1146 - L.D. 1541
An Act To Support and Improve Municipal Recycling Programs and Save
Taxpayer Money
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §1776, sub-§11, as enacted by PL 2013, c. 315, §7, is amended
to read:
11. Exceptions. This section does not apply to products subject to section 1610,
1665-A, 1665-B, 1672, 2146, 2165 or 2166.
Sec. 2. 38 MRSA §2146 is enacted to read:
§2146. Stewardship program for packaging
1. Definitions. As used in this section, unless the context otherwise indicates, the
following terms have the following meanings.
A. "Alternative collection program" means a program for the management of
packaging material that is operated by an individual producer or group of producers
and that has been approved by the department in accordance with subsection 8.
B. "Brand" has the same meaning as in section 1771, subsection 1.
C. "Collection" means the gathering of waste, including the preliminary sorting and
storage of waste for the purposes of transport to a recycling establishment.
D. "European article number" or "EAN" means a 13-digit barcode used for product
identification purposes, also referred to as an international article number.
E. "Franchisee" means a person that is granted a franchise by a franchisor authorizing
the use of the franchisor's trade name, service mark or related characteristic and the
sharing of the franchisor's proprietary knowledge or processes pursuant to an oral or
written arrangement for a definite or indefinite period.
F. "Franchisor" means a person that grants to a franchisee a franchise authorizing the
use of the person's trade name, service mark or related characteristic and the sharing of
the person's proprietary knowledge or processes pursuant to an oral or written
arrangement for a definite or indefinite period.
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G. "Low-volume producer" means a producer that sold, offered for sale or distributed
for sale in or into the State during the prior calendar year products contained, protected,
delivered, presented or distributed in or using more than one ton but less than 15 tons
of packaging material in total.
H. "Municipality" means a city, town, county, township, village or plantation; a refuse
disposal district under chapter 17; or a regional association.
I. "Packaging material" means a discrete type of material, or a category of material
that includes multiple discrete types of material with similar management requirements
and similar commodity values, used for the containment, protection, delivery,
presentation or distribution of a product, including a product sold over the Internet, at
the time that the product leaves a point of sale with or is received by the consumer of
the product. "Packaging material" does not include a discrete type of material, or a
category of material that includes multiple discrete types of material, that is:
(1) Intended to be used for the long-term storage or protection of a durable product
and that can be expected to be usable for that purpose for a period of at least 5
years;
(2) A beverage container, as defined in section 3102, subsection 2, subject to the
requirements of chapter 33;
(3) A container for architectural paint, as defined in section 2144, subsection 1,
paragraph A, as long as a paint stewardship program is in operation, has been
approved by the department pursuant to section 2144 and the stewardship
organization operating that program:
(a) Has demonstrated to the department's satisfaction that it recycles at least
90% of the containers of architectural paint collected under the program; or
(b) Subject to the approval of the department, if unable to satisfy the
requirements of division (a), has demonstrated to the department's satisfaction
that it recycles at least 80% of the containers of architectural paint collected
under the program; or
(4) Excluded from the definition of "packaging material" by the department by rule
adopted pursuant to subsection 13, paragraph D.
J. "Packaging stewardship fund" or "fund" means a privately held account established
and managed by the stewardship organization pursuant to subsection 12.
K. "Packaging stewardship organization" or "stewardship organization" means the
entity contracted by the department under subsection 3 to operate the packaging
stewardship program.
L. "Packaging stewardship program" or "program" means the program implemented
under this section by the stewardship organization to assess and collect payments from
producers based on the amount, whether by weight or volume, of packaging material
sold, offered for sale or distributed for sale in or into the State by each producer and to
reimburse participating municipalities for certain municipal recycling and waste
management costs.
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M. "Participating municipality" means a municipality that has complied with the
requirements of subsection 9 and is eligible for reimbursement of certain costs in
accordance with subsection 10.
N. "Post-consumer recycled material" means new material produced using material
resulting from the recovery, separation, collection and reprocessing of material that
would otherwise be disposed of or processed as waste and that was originally sold for
consumption. "Post-consumer recycled material" does not include post-industrial
material or pre-consumer material.
O. "Producer" means a person that:
(1) Has legal ownership of the brand of a product sold, offered for sale or
distributed for sale in or into the State contained, protected, delivered, presented or
distributed in or using packaging material; or
(2) Is the sole entity that imports into the State for sale, offer for sale or distribution
for sale in or into the State a product contained, protected, delivered, presented or
distributed in or using packaging material that is branded by a person that meets
the requirements of subparagraph (1) and has no physical presence in the United
States.
"Producer" includes a low-volume producer and a franchisor of a franchise located in
the State, but does not include the franchisee operating that franchise. "Producer" does
not include a nonprofit organization exempt from taxation under the United States
Internal Revenue Code of 1986, Section 501(c)(3).
P. "Proprietary information" has the same meaning as in section 1771, subsection 6-A.
Q. "Readily recyclable" means, with respect to a type of packaging material, that the
type of packaging material meets the criteria and standards for recyclability as
determined by the department by rule pursuant to subsection 13, paragraph A,
subparagraph (2).
R. "Recycling" has the same meaning as in section 1771, subsection 7.
S. "Reuse" has the same meaning as in section 1771, subsection 8.
T. "Similar municipalities" means 2 or more municipalities that, as determined by the
department by rule pursuant to subsection 13, paragraph A, subparagraph (3), have
similar population sizes and similar geographic locations and share other department-
specified criteria.
U. "Toxicity" means, with respect to packaging material, the presence in packaging
material or the use in the manufacturing, recycling or disposal of packaging material
of intentionally introduced metals or chemicals regulated pursuant to Title 32, chapter
26-A; food contact chemicals of high concern or priority food contact chemicals
regulated pursuant to Title 32, chapter 26-B; or chemicals of concern, chemicals of
high concern or priority chemicals identified pursuant to chapter 16-D.
V. "Universal product code" or "UPC" means a standard for encoding a set of lines and
spaces that can be scanned and interpreted into numbers for product identification
purposes. "Universal product code" includes any industry-accepted barcode used for
product identification purposes in a manner similar to a UPC, including, but not limited
to, an EAN.
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 2. Producer exemptions. Notwithstanding any provision of this section to the
contrary, a producer is exempt from the requirements and prohibitions of this section in
any calendar year in which:
A. The producer realized less than $2,000,000 in total gross revenue during the prior
calendar year, except that, for the period beginning one calendar year following the
effective date of the contract entered into by the department and the stewardship
organization pursuant to subsection 3 and ending 3 years after that effective date, a
producer that realized less than $5,000,000 in total gross revenue during the prior
calendar year is exempt from the requirements and prohibitions of this section;
B. The producer sold, offered for sale or distributed for sale in or into the State during
the prior calendar year products contained, protected, delivered, presented or
distributed in or using less than one ton of packaging material in total;
C. The producer realized more than 50% of its total gross revenue in the prior calendar
year from the sale of goods it acquired through insurance salvages, closeouts,
bankruptcies and liquidations; or
D. The producer sold, offered for sale or distributed for sale in or into the State during
the prior calendar year to retailers or direct to consumers products that were perishable
food and that were contained, protected, delivered, presented or distributed in or using
less than 15 tons of packaging material in total.
As used in this paragraph, "perishable food" means any food that may spoil or
otherwise become unfit for human consumption because of its nature, type or physical
conditions, including, but not limited to, fresh and processed meats, poultry, seafood,
dairy products, bakery products, eggs in the shells and fresh fruits and vegetables.
"Perishable food" does not include any such food that is sold, offered for sale or
distributed for sale frozen except for frozen wild blueberries.
A producer claiming an exemption under this subsection shall provide to the department
sufficient information to demonstrate that the producer meets the requirements for an
exemption under this subsection within 30 days of receiving a request from the department
to provide such information.
3. Selection of stewardship organization; contract. Consistent with the
requirements of this subsection, the department shall select and enter into a contract with a
packaging stewardship organization to operate the packaging stewardship program under
this section.
A. Consistent with applicable competitive bidding requirements under state
purchasing laws and following the initial adoption of rules by the department pursuant
to subsection 13 to implement this section, the department shall issue a request for
proposals for the operation of the packaging stewardship program by a packaging
stewardship organization. The proposals must be required to cover a 10-year operation
of the packaging stewardship program by the successful bidder and must be required
to include, at a minimum:
(1) A description of how the bidder will administer the stewardship organization,
including:
(a) The mechanism or process, to be developed with input from producers, by
which a producer may request and receive assistance from the stewardship
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 organization in the reporting of required information and regarding methods
by which the packaging material used by a producer may be modified so as to
reduce the producer's payment obligations under subsection 6; and
(b) The mechanism or process, to be developed with input from municipalities,
by which a participating municipality may request and receive assistance from
the stewardship organization in the reporting of required information and
regarding methods by which a municipality's recycling program may be
modified so as to increase access to and participation in the program;
(2) A description of how the bidder intends to solicit and consider input from
interested persons, including, but not limited to, producers, municipalities,
environmental organizations and waste management and recycling establishments,
regarding the bidder's operation of the packaging stewardship program, if selected;
(3) A description of how the bidder intends to establish and manage the packaging
stewardship fund consistent with subsection 12, including, but not limited to: the
staffing the bidder intends to use for management of the fund; a plan to ensure
equity of access to the fund for participating municipalities; a plan for providing
technical support to producers and municipalities regarding program requirements;
and a plan for administering payments to and reimbursements from the fund and
the financial mechanisms, including investment types, if any, the bidder intends to
use in managing the fund;
(4) A proposed financial assurance plan that ensures all funds held in the
packaging stewardship fund are immediately and exclusively forfeited and
transferred to or otherwise made immediately available to the department to
support waste diversion, reuse or recycling programs when the stewardship
organization's contract with the department is terminated by the department or
expires, unless the stewardship organization enters into a new contract with the
department in accordance with paragraph B prior to the expiration of the
stewardship organization's existing contract;
(5) A proposed budget outlining the anticipated costs of operating the packaging
stewardship program, including identification of any start-up costs that will not be
ongoing and a description of the method by which the bidder intends to determine
and collect producer payments during the initial start-up period of program
operation to fund the program's operational costs during that initial start-up period
and to reimburse or require additional payments by those producers subsequent to
that initial start-up period based on producer reporting of the actual amount of
packaging material sold, offered for sale or distributed for sale in or into the State
by each producer during that initial start-up period. The proposed budget under this
subparagraph may overestimate the cost of operating the program during its initial
start-up period of operation but must describe the method and basis for any
overestimate;
(6) A certification that the bidder will not share, except with the department,
information provided to the bidder by a producer that is proprietary information
and that is identified by the producer as proprietary information. The certification
must include a description of the methods by which the bidder intends to ensure
the confidentiality of such information;
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 (7) A description of how the bidder will conduct a statewide recycling needs
assessment that, at a minimum, includes an evaluation of:
(a) Current funding needs affecting recycling access and availability in the
State;
(b) The capacity, costs and needs associated with the collection and
transportation of recyclable material in the State;
(c) The processing capacity, market conditions and opportunities in the State
and regionally for recyclable material; and
(d) Consumer education needs in the State with respect to recycling and
reducing contamination in collected recyclable material; and
(8) Any additional information required by the department.
B. In accordance with applicable requirements of state purchasing laws, the
department shall enter into a contract with a bidder that has submitted a proposal in
accordance with the requirements of this subsection, the term of which must cover 10
years of operation of the packaging stewardship program by the stewardship
organization. The contract must, at a minimum, include provisions to ensure that the
stewardship organization will conduct the statewide recycling needs assessment
described in paragraph A, subparagraph (7) and report the results of that assessment to
the department within a reasonable time frame and operate the program in accordance
with all applicable statutory requirements and the rules adopted by the department
under this section.
If, at the close of the competitive bidding process under this subsection, the department
determines that no bidder has submitted, in accordance with this subsection, a proposal that
meets the requirements of this subsection, the department may reopen a new competitive
bidding process under this subsection.
4. Prohibition; producer compliance information. This subsection governs the sale
or distribution in the State of products with packaging not in compliance with the
requirements of this section and sets forth requirements for the collection and publication
of compliance information.
A. Except as provided in paragraph D, beginning one calendar year following the
effective date of the contract entered into by the department and the stewardship
organization pursuant to subsection 3, a producer may not sell, offer for sale or
distribute for sale in or into the State a product contained, protected, delivered,
presented or distributed in or using packaging material for which the producer has not
complied with all applicable requirements of this section.
B. The stewardship organization shall provide to the department a list of producers
tha