| 11 | 23 | | |
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| 12 | 24 | | AN ACT ESTABLISHING A MATTRESS STEWARDSHIP PROGRAM. |
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| 13 | 25 | | |
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| 14 | 26 | | Be it enacted by the Senate and House of Representatives in General Assembly convened: |
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| 15 | 27 | | |
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| 16 | 28 | | Section 1. (NEW) (Effective October 1, 2012) For the purposes of sections 1 to 8, inclusive, of this act: |
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| 17 | 29 | | |
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| 18 | 30 | | (1) "Brand" means a name, symbol, word or mark that attributes a mattress to the producer of such mattress; |
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| 19 | 31 | | |
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| 20 | 32 | | (2) "Commissioner" means the Commissioner of Energy and Environmental Protection; |
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| 21 | 33 | | |
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| 22 | 34 | | (3) "Covered entity" means any person in the state with a discarded mattress that is generated in the state; |
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| 23 | 35 | | |
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| 24 | 36 | | (4) "Department" means the Department of Energy and Environmental Protection; |
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| 25 | 37 | | |
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| 26 | 38 | | (5) "Discarded mattress" means any mattress that is no longer used for its manufactured purpose or that is no longer wanted by a person; |
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| 27 | 39 | | |
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| 28 | 40 | | (6) "Energy recovery" means the process by which all or a portion of solid waste materials are processed or combusted in order to utilize the heat content or other forms of energy derived from such solid waste materials; |
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| 29 | 41 | | |
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| 30 | 42 | | (7) "Foundation" means any ticking-covered structure that is used to support a mattress and that is composed of one or more of the following: A constructed frame, foam or a box spring. "Foundation" does not include any bed frame or base made of wood, metal or other material that rests upon the floor and that serves as a brace for a mattress; |
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| 31 | 43 | | |
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| 32 | 44 | | (8) "Market share" means the national sales of any manufacturer of mattresses expressed as a percentage of the total of national sales by all mattress manufacturers; |
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| 33 | 45 | | |
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| 34 | 46 | | (9) "Mattress" means any resilient material or combination of materials that is enclosed by a ticking, used alone or in combination with other products, and that is intended for or promoted for sleeping upon. "Mattress" includes any foundation and any renovation. "Mattress" does not include any mattress pad, mattress topper, sleeping bag, pillow, car bed, carriage, basket, dressing table, stroller, playpen, infant carrier, lounge pad, crib bumper, liquid and gaseous filled ticking including any water bed and air mattress that does not contain upholstery material between the ticking and the mattress core, and upholstered furniture that does not otherwise contain a detachable mattress; |
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| 35 | 47 | | |
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| 36 | 48 | | (10) "Mattress core" means the main support system that is present in a mattress, including, but not limited to, springs, foam, water bladder, air bladder or resilient filling; |
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| 37 | 49 | | |
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| 38 | 50 | | (11) "Mattress stewardship plan" or "plan" means the plan submitted for the establishment of a state-wide mattress stewardship program described in section 2 of this act; |
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| 39 | 51 | | |
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| 40 | 52 | | (12) "Mattress stewardship program" or "program" means the state-wide program described in section 2 of this act and implemented pursuant to the mattress stewardship plan; |
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| 41 | 53 | | |
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| 42 | 54 | | (13) "Mattress topper" means any item that contains resilient filling, with or without ticking, that is intended to be used with or on top of a mattress; |
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| 43 | 55 | | |
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| 44 | 56 | | (14) "Performance goal" means a metric proposed by either the representative organization or the department, and approved by the commissioner, to measure, on an annual basis, the performance of the mattress stewardship program in achieving continuous, meaningful improvement in improving the rate of mattress recycling in the state and any other specified goal of the program; |
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| 45 | 57 | | |
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| 46 | 58 | | (15) "Producer" means any person who manufactures or renovates a mattress that is sold, offered for sale or distributed in the state under the manufacturer's own name or brand. "Producer" includes (A) the owner of a trademark or brand under which a mattress is sold, offered for sale or distributed in this state, whether or not such trademark or brand is registered in this state, and (B) any person who imports a mattress into the United States that is sold or offered for sale in this state and that is manufactured or renovated by a person who does not have a presence in the United States; |
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| 47 | 59 | | |
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| 48 | 60 | | (16) "Recycling" means any process in which original discarded products, components and by-products may lose their original identity or form as they are transformed into new, usable or marketable materials. "Recycling" does not include energy recovery; |
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| 49 | 61 | | |
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| 50 | 62 | | (17) "Renovate" or "renovation" means altering a mattress for the purpose of resale and includes any one, or a combination of, the following: Replacing the ticking or filling, adding additional filling, rebuilding a mattress, or replacing components with new or recycled materials. "Renovate" or "renovation" does not include the (A) stripping of a mattress of its ticking or filling without adding new material, (B) sterilizing or sanitizing of a mattress without otherwise altering the mattress, (C) altering of a mattress by a renovator when a person retains the altered mattress for lease, rental or personal use, or (D) refurbishing that disqualifies a mattress for a yellow wholesale renovator tag to be affixed to the mattress, in accordance with regulations of the Department of Consumer Protection; |
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| 51 | 63 | | |
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| 52 | 64 | | (18) "Renovator" means a person who renovates post-consumer mattresses for the purpose of reselling such mattresses in a retail store; |
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| 53 | 65 | | |
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| 54 | 66 | | (19) "Representative organization" or "organization" means the organization created by producers to design, submit and implement the mattress stewardship program described in section 2 of this act; |
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| 55 | 67 | | |
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| 56 | 68 | | (20) "Retailer" means any person who sells mattresses in this state or offers mattresses in this state to a consumer; |
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| 57 | 69 | | |
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| 58 | 70 | | (21) "Reuse" means the return of a mattress into the economic stream for use in the same kind of application as the mattress was originally intended to be used, without a change in the form or identity of the mattress; |
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| 59 | 71 | | |
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| 60 | 72 | | (22) "Sanitization" means the direct application of chemicals to a mattress to kill human disease-causing pathogens; |
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| 61 | 73 | | |
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| 62 | 74 | | (23) "Sale" means the transfer of title of a mattress for consideration, including through the use of a sales outlet, catalog, Internet web site or similar electronic means; |
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| 63 | 75 | | |
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| 64 | 76 | | (24) "Sterilization" means the mitigation of any deleterious substances or organisms including human disease-causing pathogens, fungi and insects from a mattress or filling material using a process approved by the Commissioner of Consumer Protection; |
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| 65 | 77 | | |
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| 66 | 78 | | (25) "Ticking" means the outermost layer of fabric or material of a mattress. "Ticking" does not include any layer of fabric or material quilted together with, or otherwise attached to, the outermost layer of fabric or material of a mattress; |
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| 67 | 79 | | |
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| 68 | 80 | | (26) "Upholstery material" means all material, loose or attached, between the ticking and the core of a mattress; and |
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| 69 | 81 | | |
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| 70 | 82 | | (27) "Wholesaler" means any person who sells or distributes mattresses in the state, in a nonretail setting, for the purpose of the resale of such mattresses. |
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| 71 | 83 | | |
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| 72 | 84 | | Sec. 2. (NEW) (Effective October 1, 2012) (a) On or before July 1, 2013, each producer shall join the representative organization and such representative organization shall submit a plan, for the commissioner's approval, to establish a state-wide mattress stewardship program, as described in this subsection. Such mattress stewardship program shall: (1) Minimize public sector involvement in the management of post-consumer mattresses by negotiating and executing agreements to collect, transport, reuse, renovate, recycle, burn for energy recovery and dispose of post-consumer mattresses, regardless of brand and while using environmentally sound management practices; (2) provide for the free, convenient and accessible state-wide collection of post-consumer mattresses that, at a minimum, achieves collection rates and convenience equal to, or greater than, the collection programs available to consumers prior to the inception of the program; (3) provide for producer-financed end-of-life management for discarded mattresses, including transportation from: (A) Any covered entity that is not a permitted municipal solid waste transfer station and that has aggregated fifty or more segregated, post-consumer discarded mattresses, (B) any municipal transfer station permitted to accept mattresses with twenty-five or more segregated, post-consumer discarded mattresses, and (C) any municipal transfer station permitted to accept mattresses with one or more segregated, post-consumer discarded mattresses once per calendar year; (4) provide suitable storage containers at permitted municipal transfer stations for segregated, discarded mattresses, at no cost to such municipality; and (5) include a funding mechanism, as described in subsection (c) of this section, that is approved by the producers who participate in the representative organization and that provides sufficient funding for the program. |
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| 73 | 85 | | |
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| 74 | 86 | | (b) The plan submitted pursuant to subsection (a) of this section shall: (1) Identify each producer participating in the program and include contact information for each such producer on a form provided by the commissioner; (2) identify by producer, the brands of mattresses sold in the state that will be covered by the program; (3) describe the funding mechanism for the program; (4) establish performance goals for the program; (5) identify transporters, nonmunicipal collection and aggregation points, processing facilities, and disposal facilities to be used in the program; (6) describe how the program will be consistent with the state solid waste management plan; (7) detail how the program will promote the recycling of post-consumer mattresses; (8) describe any strategies to promote market growth of recycled products made from processed materials from discarded mattresses and to develop recycling infrastructure in the state; and (9) include a description of the public education program, including informational materials for wholesalers, retailers, municipalities and covered entities, designed to create awareness of the program and encourage participation in the program. |
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| 75 | 87 | | |
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| 76 | 88 | | (c) The representative organization shall be a nonprofit organization with a fee structure that covers, but does not exceed, the costs of developing the plan described in subsection (b) of this section and operating the program described in subsection (a) of this section. The representative organization shall maintain all records relating to the program for a period of not less than three years. |
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| 77 | 89 | | |
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| 78 | 90 | | (d) The funding mechanism for the program shall be based on a producer's annual market share, as determined by nationally available market share data, including, but not limited to, the number of units shipped, retail sales data, consumer surveys and information provided by producers. Any producer with less than one-tenth of one per cent market share shall be deemed to be de minimis and shall not be responsible for payment of a pro rata share of costs necessary to operate the program. Notwithstanding the provisions of this subsection, the commissioner and representative organization may agree on an alternative, producer-financed funding mechanism. |
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| 79 | 91 | | |
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| 80 | 92 | | (e) The owner or operator of any facility that is part of the program shall operate such facility in compliance with any applicable federal or state law or regulation. |
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| 81 | 93 | | |
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| 82 | 94 | | (f) Pursuant to the program, recycling shall be preferred over any other disposal method to the extent that recycling is technologically feasible and economically practical. |
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| 83 | 95 | | |
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| 84 | 96 | | (g) The commissioner may approve the plan for the establishment of the mattress stewardship program, provided such plan meets the requirements of subsection (b) of this section and such program meets the requirements of subsection (a) of this section. Not later than ninety days after submission of the plan pursuant to this section, the commissioner shall make a determination whether to approve the plan. Prior to making such determination, the commissioner shall post the plan on the department's Internet web site and solicit public comments on the plan. In the event that the commissioner does not approve the plan, the commissioner shall describe the reasons for the disapproval in a notice of determination that the commissioner shall provide to the representative organization. The representative organization shall revise and resubmit the plan to the commissioner not later than forty-five days after receipt of notice of the commissioner's disapproval notice. Not later than forty-five days after receipt of the revised plan, the commissioner shall review and approve or disapprove the revised plan. The representative organization may resubmit a revised plan to the commissioner for approval on not more than two occasions. If the representative organization fails to submit a plan that is acceptable to the commissioner, the commissioner shall modify a submitted plan and approve it. Not later than sixty days after the approval of a plan pursuant to this section, the representative organization shall implement the mattress stewardship program. |
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| 85 | 97 | | |
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| 86 | 98 | | (h) The representative organization shall submit an amended plan to the commissioner, for approval, whenever there is a proposed substantial change to the program. Prior to making a determination to approve or disapprove an amended plan, the commissioner shall post the amended plan on the department's Internet web site and solicit public comments. For the purposes of this subsection, "substantial change" shall include, but not be limited to, a change in: (1) The program's funding mechanism, (2) processing facilities to be used for discarded mattresses collected pursuant to the program, and (3) the system for collecting mattresses. |
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| 87 | 99 | | |
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| 88 | 100 | | (i) The representative organization shall notify the commissioner of any other changes to the program on an ongoing basis, whenever they occur, without resubmission of the plan to the commissioner for approval. Such changes shall include, but not be limited to, a change in: (1) The transporters used by the program, (2) the producers and the respective brands entering or leaving the representative organization, and (3) contact information for producers, the representative organization and significant program participants. |
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| 89 | 101 | | |
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| 90 | 102 | | (j) Not later than October fifteenth of each year, the representative organization shall submit an annual report to the commissioner, on a form prescribed by the commissioner. The commissioner shall post such annual report on the department's Internet web site. Such report shall include: (1) The tonnage of mattresses collected pursuant to the program from: (A) Municipal transfer stations, (B) retailers, and (C) all other covered entities; (2) the tonnage of mattresses diverted for recycling; (3) the weight of post-consumer discarded mattresses recycled, as indicated by the weight of each of the commodities sold to secondary markets; (4) the weight of mattresses sent for disposal at each of the following: (A) Waste-to-energy facilities, (B) landfills, and (C) any other facilities; (5) public education materials and methods used to support the program; (6) an evaluation of the effectiveness of methods and processes used to achieve performance goals of the program; (7) recommendations for any changes to the program; and (8) any other information requested by the commissioner. |
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| 91 | 103 | | |
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| 92 | 104 | | (k) Two years after the implementation of the program and upon the request of the commissioner but not more frequently than once a year, the representative organization shall cause an audit of the program to be conducted by an independent auditing firm who shall be selected by the representative organization and approved by the commissioner. Such audit shall determine if the funding mechanism is covering, but not exceeding program operation costs, review the accuracy of the representative organization's data concerning the program and provide any other information requested by the commissioner. Such audit shall be paid for by the representative organization. The representative organization shall maintain all records relating to the program for not less than three years. |
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| 93 | 105 | | |
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| 94 | 106 | | Sec. 3. (NEW) (Effective October 1, 2012) (a) No retailer shall sell any mattress from a producer who is not in compliance with the provisions of sections 1 to 8, inclusive, of this act. A producer's compliance with the provisions of sections 1 to 8, inclusive, of this act may be determined by examining the list of participating producers posted on the department's Internet web site pursuant to section 4 of this act. No retailer shall be in violation of the provisions of this subsection if, on the date the mattress was ordered from the producer or its agent, the producer or the subject brand of mattress was listed on the department's Internet web site in accordance with the provisions of section 4 of this act. |
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| 95 | 107 | | |
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| 96 | 108 | | (b) Retailers may provide information to consumers regarding recycling facilities and companies that collect or recycle mattresses and may serve as voluntary collection sites for mattresses pursuant to the program. |
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| 97 | 109 | | |
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| 98 | 110 | | (c) No covered entity that participates in the program shall charge for receipt of mattresses generated in the state. Covered entities may charge a fee for providing the service of collecting mattresses and may restrict the acceptance of mattresses by number, source or physical condition. |
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| 99 | 111 | | |
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| 100 | 112 | | Sec. 4. (NEW) (Effective October 1, 2012) Not later than thirty days after the establishment of the program, the commissioner shall post a list of producers and their brands that are in compliance with the requirements of sections 1 to 8, inclusive, of this act on the department's Internet web site. |
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| 101 | 113 | | |
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