Statewide EPS Foam Ban Explodes into Millions of Tiny Pieces Upon Death in the MD General Assembly

The 2018 session for the Maryland General Assembly has been nothing short of an emotional roller coaster, and it’s not over yet. While almost all of our environmental bills have died this session, a few remain. Unfortunately, not all bills die the same. The statewide ban on expanded polystyrene (EPS) foam food packaging died a particularly tragic death. House Bill 538 and Senate Bill 651, sponsored by Del. Brooke Lierman (D-46) and Sen. Cheryl Kagan (D-17) respectively, were introduced again this legislative session after many lessons learned from last year. The primary difference between the legislation this year in comparison to last year is that packing peanuts were removed from the ban, and schools and institutions were added. This was to promote consistency among existing legislation in the state, and to find compromises with other legislators. HB 538 was jointly assigned to the Environment and Transportation Committee and the Economic Matters Committee. SB 651 was jointly assigned to the Education, Health, and Environmental Affairs Committee and the Finance Committee. A hearing for HB 538 was held on February 21st and one for SB 651 on February 27th, both of which went well. Following the Senate hearing, the Senate Education, Health, and Environmental Affairs Committee voted on March 8th to give SB 651 a favorable report, sending it to the Finance committee to vote. On March 9th, prior to a vote from the primary committee (Environment and Transportation) - the House Economic Matters Committee gave HB 538 an unfavorable report. Both motions to give SB 651 an unfavorable and then favorable report died in the Senate Finance Committee on March 16th, rendering the bill dead for this legislative session. We learned so much this session and will be even better prepared for next year. And without doubt we have made considerable progress this year, both with seeing Baltimore City pass an EPS foam bill, as well as the vibrant, diverse and visible support for policy on this issue at the state level that ensured litter was on the minds of our legislators. But that does not mean we are not frustrated about the ultimate fate of this bill, the least of which being because of the nature of its death.  When we look back objectively: three out of the four committees this bill was assigned to took a vote, and that was no easy feat. We also knew that with it being an election year, it was going to be hard to pass what has been a controversial bill in the past. We laid a strong and critical foundation for other jurisdictions to model our framework, as well as to keep fighting at the state level with a resilient coalition of partners invested in this issue. Below are some of the key things we reinforced, clarified or learned throughout this campaign:

1. Dart does not manufacture EPS foam in the state of Maryland. There are three Dart facilities in the state: two distribution centers and one manufacturing facility. That manufacturing facility only manufactures the alternative containers, and we clarified that distribution to entities in states outside of Maryland would not be impacted by this bill.
2. Dart could potentially see an increase in jobs due to a statewide ban, since they have become the preferred provider of alternative containers in jurisdictions that already have a ban, and it is confirmed they produce these items in state.
3. As indicated by this chart, the alternative containers supplied by Dart are comparable in cost to EPS foam. Both based on data from jurisdictions that have passed similar bans, as well as supply/demand economics, we stand to reason that this cost differential would diminish and ultimately neutralize over time.
4. When we talk about EPS foam, people often say that it only makes up 1-2% of municipal solid waste. That is by weight, however, and in reality, foam is about 10-40% of our waste stream by volume
5. Montgomery County Schools has offered to be a purchasing agent for smaller school districts so they can get the same low price for alternative trays.
6. MOM’s Organic Market has offered to set up a bulk purchasing cooperative to simplify the process and provide a cost share option on alternatives containers for small businesses needing to purchase a lower volume of containers.
7. We received 120 petition signatures from businesses pledging their support of a ban. Those petition signatures came from businesses who have voluntarily phased out their usage of EPS foam, those that have begun phasing out, and those that still use foam but otherwise recognize the importance of this legislation.
8. We received 12 individual letters of support from businesses who support a statewide ban.
9. Most businesses aren’t using exclusively EPS foam in their restaurants;, they are using a variety of different materials, including the alternatives.Businesses that have locations in multiple jurisdictions find it cumbersome to navigate different laws and would prefer a statewide ban that promotes uniformity and consistency.
10. EPS foam cannot be recycled at any of the state’s recycling centers because it is not economically viable to do so. Recycling centers get paid by the pound, and EPS foam is primarily air, as well as being a difficult commodity to recycle. EPS foam also absorbs the grease of the food it’s containing, rendering it nearly impossible to adequately clean and recycle back into raw material. Claims that FOOD SERVICE foam can be recycled, not just logistically, but technically, are not congruent with existing programs, technology, and systems present or pursuable in the state of Maryland
11. Dart operates seven EPS foam drop off centers in Maryland, where residents can take their foam to be recycled by the company. Per our investigation, we learned that most of these drop off centers have signs indicating that they won’t take EPS foam food containers, or an employee who says they won’t recycle EPS foam food containers. These receptacles are intended to collect block foam, which was not included in the 2018 House and Senate versions of the bill
12. Plastic lined paper cups, used for hot beverages, are being composted in 3 out of the 5 food waste composting facilities in the state of Maryland: in Prince George’s County, Caroline County, and Howard County.
13. Infrastructure does exist to recycle plastic lined paper cups. It stands to reason that greater use of these products would tip the business case scale for expanding composting operations throughout the state, in alignment with Governor Hogan’s Zero Waste Plan.
14. Despite some claims, most methane emissions coming from landfills is due to food waste, not paper cups - thus continued reasoning to ensure the state of Maryland develops a comprehensive composting strategy to ensure the diversion of these cups - not an option with foam - can be accomplished.
15. Dunkin Donuts has pledged to phase out their usage of EPS foam by 2020.
16. McDonalds has pledged to phase out their usage of EPS foam by the end of 2018.
17. We continue to gather significant data showing the success of bans in Montgomery County, Prince George’s County, Takoma Park, Gaithersburg, and Washington DC.
18. Days after the “death” of this bill, a scientific report was published citing the presence of microplastics within bottled water, with 93% of samples containing microplastics.

In this process and throughout this campaign, an extraordinary coalition made up of groups representing all impacted communities was formed. Despite our disappointment with its dramatic, and yet anti-climatic, demise this legislative session,  this coalition remains energized and committed to getting EPS foam not just out of Maryland’s neighborhoods and waterways, but our waste stream broadly. Trash Free Maryland, alongside this diverse partner network, will continue to work with other city and county councils to pass and implement their own bans. We will expand our outreach to businesses all over the state to educate them on the benefits of switching away from EPS foam food packaging. We will not stop our work to educate the public on the harmful environmental impacts of EPS foam and encourage consumer participation in driving the market away from this problematic material. Throughout all of this, we will continue our work with the Maryland General Assembly to reintroduce this bill next legislative session.And importantly, we are encouraged by the passing of a ban in Baltimore City this month and will use that motivation to drive our efforts over the next year, including supporting businesses throughout Baltimore as they work toward implementation. We may have been asking for a #FoamFreeMD for quite some time at this point, but we won’t stop until we are there. Join us as we remain vigilant and vigorous in this pursuit!