Consumers and businesses in the European Union may be familiar with the principle of extended producer responsibility (EPR), an OECD principle which aims at making producers pay for the waste generated by their products. Indeed, such schemes are widespread in Europe, and have been put in place in countries like Germany, Austria and France as early as the 1970s (1). In the United States, recycling programs with an emphasis on producer responsibility also exist at the State level (e.g. for electronic waste). At the federal level, the Environmental protection agency (EPA) has also put in place programs for certain types of hazardous waste (2).

But the Vermont program differs in that it concerns primary batteries weighing two kilograms or less, which are used as consumer products. Put simply, this program intends to target household batteries, the type that may be used by consumers daily to power flashlights, television remote controls, etc. It is also unique in that the program is implemented by the State, and is mandatory. So far in the U.S., such programs were usually implemented by businesses themselves, on a voluntary basis (3).

Understanding this unique program should require answering two questions:
- What is extended producer responsibility?
- What is the nature of the program implemented in Vermont, and how does it work?

I. What is extended producer responsibility?

Extended producer responsibility (EPR) is originally an economic principle, developed by the OECD in the 1990s (4). It is an operational application of the polluter-pays principle, in that it shifts the costs of managing waste generated by consumer products from the state towards the producers responsible for generating that waste. Rather than targeting the waste directly generated from production of consumer goods, it targets the waste generated by the products themselves, once they are in the hands of the consumers.

For example, EPR will not target the waste generated in a factory. However, it will target the costs necessary to collect and recycle used goods and used packaging once they are discarded by consumers.

This might seem problematic, for a number of reasons: how are the costs of managing waste evaluated, and how does one trace back the producer responsible for generating waste? This might be especially difficult when products are imported or exported.

However, a number of solutions exist and have been put in place successfully: evaluating costs depending on market shares of various producers, depending on average weight produced and collected...

In addition to a shift in who bears the cost of managing this waste, EPR schemes also include incentives to reduce the amount of waste generated, by encouraging production of reusable goods, more efficient packaging, etc. Taken together, these two components of EPR strategies, if successful, reduce the negative environmental impacts of consumer goods by diminishing the amount of waste generated and encouraging more environmentally friendly waste management. The emphasis is put on waste reduction, reuse, and recycling.

II. Act 139 and the product stewardship program

A. Who and what does it target?

Act 139 targets exclusively batteries for personal, family, or household use; batteries for business use are excluded from the scope of the program. However, both single-use and rechargeable batteries are concerned.

The Act concerns all batteries sold and used in the State of Vermont. However, a “producer” can be:
- a manufacturer based in Vermont,
- a person who sells batteries in the State under their own name or brand,
- a person who owns or licenses a trademark or brand under which a battery is sold in Vermont,
- a person who imports primary batteries in the State for sale.

This means that primary batteries, as long as they are sold and used in Vermont, do not necessarily need to have been produced in Vermont to fall under the provisions of this Act.

The producers concerned with the implementation of stewardship programs must comply with a number of requirements. If unable to comply with these requirements, producers may not be able to sell primary batteries in the State of Vermont.

B. How does it work?

Producers who sell, or wish to sell batteries in Vermont, have three options in order to comply with Act 139. They must either:
- pay a fee,
- put in place their own primary battery stewardship program (PBSP), which can be done individually (one for each producer) or collectively (several producers share the cost of implementing a single program),
- appoint an organization to act as an agent on their behalf to take charge of the PBSP.

The costs of collection estimated in order to evaluate the fee are based on collection rate. This collection rate is calculated by reasonable estimates of the average weight of batteries sold in Vermont, divided by the average rate of batteries collected in Vermont. This rate is calculated per annum.

If producers choose to implement their own plan, either on their own, for their own products, or collectively, each plan must be approved by the Secretary of Natural resources prior to its implementation, and must fit a series of requirements including establishing a list of participating producers and covered brands, free collection of the used primary batteries, and detailed information on the collectors involved. Each plan must also include educational and outreach measures in order to make sure that the public is properly informed.

Similarly, only registered organizations may take charge of a PBSP. These organizations must also fit a series of requirements, including a transfer of “responsibilities, obligations, and liabilities” from the producers to these organizations. Put simply, the organizations are paid by the producers to fully take charge of financing and organizing the collection, recycling, and disposal of primary batteries in their stead.

Finally, the Agency of Natural Resources of the State of Vermont (5) is responsible for evaluating the success of this plan. It must submit a report by January 2019 in which it details the amounts collected, the percentage of batteries collected attributable to the plan, and will issue recommendations.

The law was passed in May 2014, and producers will be required to submit their product stewardship plans by July 1st, 2015. After January 2016, the ban on selling primary batteries for all producers who do not comply with the provisions of Act 139 will enter into force (6).

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(1) European Environmental Agency, Managing municipal solid waste – A review of achievements in 32 european countries, Report no. 2/2013, 19 march 2013

(2) http://epa.gov/waste/hazard/recycling/index.htm

(3) For example, Starbucks aimed at improving its environmental impact by implementing a collection and recycling program for used coffee cups: http://www.theguardian.com/sustainable-business/extended-producer-responsibility-united-states

(4) http://www.oecd.org/env/tools-evaluation/extendedproducerresponsibility.htm

(5) http://www.anr.state.vt.us/

(6) http://www.globalpsc.net/vermont-passes-first-single-use-battery-product-stewardship-program-in-u-s/