Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H4263 Compare Versions

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1	1	HOUSE . . . . . . . . No. 4263
2	2	The Commonwealth of Massachusetts
3	3	________________________________________
4	4	HOUSE OF REPRESENTATIVES, January 18, 2024.
5	5	The committee on Environment and Natural Resources to whom was
6	6	referred the petition (accompanied by bill, Senate No. 471) of Sal N.
7	7	DiDomenico, Jason M. Lewis, Patrick M. O'Connor, John J. Cronin and
8	8	other members of the General Court for legislation to save recycling costs
9	9	in the commonwealth, the petition (accompanied by bill, Senate, No. 542)
10	10	of Susan L. Moran and Mathew J. Muratore for legislation to establish
11	11	safe paint stewardship, the petition (accompanied by bill, Senate, No. 551)
12	12	of Patrick M. O'Connor and Mathew J. Muratore for legislation relative to
13	13	paint recycling, the petition (accompanied by bill, Senate, No. 554) of
14	14	Jacob R. Oliveira, Steven Owens, James K. Hawkins, Joanne M.
15	15	Comerford and others for legislation to require producer responsibility for
16	16	the collection, reuse and recycling of discarded electronic products, the
17	17	petition (accompanied by bill, Senate, No. 572) of Michael F. Rush, Paul
18	18	McMurtry, Jack Patrick Lewis, John J. Cronin and other members of the
19	19	General Court for legislation to save recycling costs in the commonwealth,
20	20	the petition (accompanied by bill, House, No. 779) of Michael S. Day
21	21	relative to recycling costs, the petition (accompanied by bill, House, No.
22	22	823) of Patricia A. Haddad and others relative to the recycling of certain
23	23	paints, and the petition (accompanied by bill, House, No. 871) of Steven
24	24	Owens, David M. Rogers and others relative to producer responsibility for
25	25	the collection, reuse and recycling of discarded electronic products,
26	26	reports recommending that the accompanying bill (House, No. 4263)
27	27	ought to pass.
28	28	For the committee,
29	29	DANIEL CAHILL. 1 of 40
30	30	FILED ON: 1/17/2024
31	31	HOUSE . . . . . . . . . . . . . . . No. 4263
32	32	The Commonwealth of Massachusetts
33	33	_______________
34	34	In the One Hundred and Ninety-Third General Court
35	35	(2023-2024)
36	36	_______________
37	37	An Act to save recycling costs in the Commonwealth.
38	38	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
39	39	of the same, as follows:
40	40	1 SECTION 1. Chapter 10 of the General Laws is hereby amended by inserting after
41	41	2section 35DDD the following section:
42	42	3 Section 35EEE. (a) There shall be established an expendable trust to be known as the
43	43	4sustainable packaging trust. Amounts deposited in the trust shall be used for department
44	44	5administration of the packaging and paper product program or an alternative collection program
45	45	6developed under sections 330 to 345, inclusive, of chapter 94 and for other uses described in this
46	46	7section. Proceeds of the trust shall be invested by the treasurer and shall be under the care and
47	47	8custody of the commissioner of the department of environmental protection, in consultation with
48	48	9the committee established in paragraph (c) of section 332 of chapter 94. Interest earnings on
49	49	10funds deposited in said trust shall be credited to and become part of the trust. Proceeds from the
50	50	11trust shall be expended by said commissioner without further appropriation to cover
51	51	12administrative costs for the implementation and enforcement of this section, including oversight,
52	52	13issuance of any regulations, planning, plan review, review of proposed modifications to a plan
53	53	14developed under sections 334 or 338 of chapter 94, compliance, enforcement, and adequate staff 2 of 40
54	54	15positions to administer the packaging and paper products program or an alternative collection
55	55	16program. Adequate department staff positions shall include but not be limited to 5 FTE positions:
56	56	17one managerial position, three compliance and enforcement positions, and one administrative
57	57	18position.
58	58	19 (b) Any funds collected under section 343 of chapter 94 in an action in which the attorney
59	59	20general has prevailed shall be deposited in the trust, and shall be used to administer grants and
60	60	21loans to businesses, non-profits and collectors, as defined in section 330 of chapter 94, to reduce
61	61	22environmental impacts related to the collection and recycling of the covered material category
62	62	23for which the penalty was exacted.
63	63	24 (c) The commissioner of environmental protection shall cause to be filed with the chairs
64	64	25of the house and senate committees on ways and means an annual report regarding the revenues
65	65	26and expenditures provided from the trust.
66	66	27 SECTION 2. Chapter 21H of the General Laws is hereby amended by adding the
67	67	28following section:-
68	68	29 Section 9. (a) As used in this section, the following words shall have the following
69	69	30meanings unless the context clearly requires otherwise:
70	70	31 “Architectural paint”, interior and exterior architectural coatings sold in containers of 5
71	71	32gallons or less; provided, however, that “architectural paint” shall not include industrial, original
72	72	33equipment or specialty coatings. 3 of 40
73	73	34 “Collection site”, any location or event at which architectural paint is accepted into a
74	74	35postconsumer paint collection program pursuant to a postconsumer paint collection program
75	75	36plan.
76	76	37 “Commissioner”, the commissioner of environmental protection.
77	77	38 “Department”, the department of environmental protection.
78	78	39 “Environmentally sound management practices”, procedures for the collection, storage,
79	79	40transportation, reuse, recycling, and disposal of architectural paint, to be implemented by the
80	80	41manufacturer or representative organization or by the manufacturers or representative
81	81	42organization’s contracted partners to comply with all applicable federal, state and local laws and
82	82	43any regulations and ordinances for the protection of human health and the environment. These
83	83	44procedures shall address adequate record keeping, tracking and documenting of the final
84	84	45disposition of materials and appropriate environmental liability coverage for the representative
85	85	46organization.
86	86	47 “Household waste”, household waste as defined in 40 CFR § 261.4(b)(1).
87	87	48 “Postconsumer paint”, architectural paint not used and no longer wanted by a purchaser.
88	88	49 “Manufacturer”, manufacturer of architectural paint who sells, offers for sale or
89	89	50distributes the architectural paint in the State under the manufacturer’s own name or brand.
90	90	51 “Program”, the postconsumer paint stewardship program established pursuant to section
91	91	52(b). 4 of 40
92	92	53 “Recycling”, a process by which discarded products, components and by-products are
93	93	54transformed into new usable or marketable materials in a manner in which the original products
94	94	55may lose their identity.
95	95	56 “Representative organization”, a nonprofit organization established by a manufacturer to
96	96	57implement the postconsumer paint stewardship program.
97	97	58 “Retailer”, a company that offers architectural paint or other allied products for retail sale
98	98	59in the commonwealth.
99	99	60 “Very small quantity generator”, very small quantity generators as defined in 40 CFR §
100	100	61260.10.
101	101	62 (b)(1) A manufacturer of architectural paint sold at retail in the state or a representative
102	102	63organization shall submit to the commissioner a plan for the establishment of a postconsumer
103	103	64paint stewardship program. The program will seek to reduce the generation of postconsumer
104	104	65paint, promote its reuse and recycling, and manage this waste stream using environmentally
105	105	66sound management practices.
106	106	67 (2) The plan submitted by the manufacturer or representative organization to the
107	107	68department under this section shall:
108	108	69 (i) Provide a list of participating manufacturers and brands covered by the program.
109	109	70 (ii) Provide information on the architectural paint products covered under the program,
110	110	71such as interior or exterior water- and oil-based coatings, primers, sealers, or wood coatings.
111	111	72 (iii) Describe how it will provide for convenient and cost-effective statewide collection of
112	112	73postconsumer architectural paint in the commonwealth. The manufacturer or representative 5 of 40
113	113	74organization may coordinate the program with existing household hazardous waste collection
114	114	75infrastructure as is mutually agreeable. A paint retailer may be authorized by the manufacturer
115	115	76or representative organization as a paint collection site if the paint retailer volunteers to act as
116	116	77such, complies with all applicable laws and regulations, and the retail location is consistent with
117	117	78the maintenance of a cost-effective network of paint collection locations.
118	118	79 (iv) Establish a goal for the number and geographic distribution of collection sites for
119	119	80postconsumer architectural paint, using geographic modeling and the following criteria: (A) at
120	120	81least 90 percent of Massachusetts residents shall have a collection site within a 15-mile radius;
121	121	82and (B) one site will be available for every 50,000 residents of an Urbanized Area (as defined by
122	122	83the U.S. Census Bureau), unless otherwise approved by the commissioner.
123	123	84 (v) Describe how postconsumer paint will be managed in an environmentally and
124	124	85economically sound manner using the following strategies, in this order: reuse, recycling, energy
125	125	86recovery, and disposal.
126	126	87 (vi) Describe education and outreach efforts to inform consumers about the program.
127	127	88These materials should include (A) information about collection opportunities for postconsumer
128	128	89paint; (B) information about the fee for the operation of the program that shall be included in the
129	129	90purchase price of all architectural paint sold in the commonwealth; and (C) efforts to promote the
130	130	91source reduction, reuse, and recycling of architectural paint.
131	131	92 (vii) Be reviewed by an independent auditor to assure that any added fee to paint sold in
132	132	93the commonwealth as a result of the postconsumer paint stewardship program does not exceed
133	133	94the costs to operate and sustain the program in accordance with sound management practices. 6 of 40
134	134	95The independent auditor shall verify that the amount added to each unit of paint will cover the
135	135	96aforementioned costs of the postconsumer paint stewardship program.
136	136	97 (3) The stewardship organization shall select the independent auditor in consultation with
137	137	98the department. The department shall review the work product of the independent auditor. The
138	138	99cost of any work performed by such independent auditor shall be funded by the program.
139	139	100 (4) Not later than 60 days after submission of the plan under this section, the
140	140	101commissioner shall make a determination in writing, whether to approve the plan as submitted or
141	141	102disapprove the plan.
142	142	103 (5) The department shall enforce the plan and may, by regulation, establish enforcement
143	143	104procedures including the circumstances under which a new plan or an amendment to the plan
144	144	105must be filed by the manufacturer or representative organization.
145	145	106 (6) No later than the implementation date of the program, information regarding the
146	146	107approved plan, the names of participating producers, and the brands of architectural paint
147	147	108covered by the program shall be posted on the department’s website and on the website of the
148	148	109representative organization.
149	149	110 (7) Upon implementation of the program, each manufacturer shall include in the price of
150	150	111any architectural paint sold to retailers and distributors in the commonwealth the per container
151	151	112amount in the approved program plan. A retailer or distributor shall not deduct this amount from
152	152	113the purchase price.
153	153	114 (c)(1) A manufacturer or retailer shall not sell, or offer for sale, architectural paint to any
154	154	115person in the commonwealth unless the manufacturer of a paint brand or manufacturer’s 7 of 40
155	155	116representative organization is implementing an approved paint stewardship plan as required by
156	156	117section (b).
157	157	118 (2) A retailer shall be in compliance with this section if, on the date the architectural paint
158	158	119was offered for sale, the manufacturer is listed on the department’s website as implementing or
159	159	120participating in an approved program or if the paint brand is listed on the department’s website as
160	160	121being included in the program.
161	161	122 (3) A paint collection site authorized under the provisions of this section shall not charge
162	162	123any additional amount for the disposal of paint when it is offered for disposal.
163	163	124 (4) A manufacturer or the representative organization participating in a postconsumer
164	164	125paint stewardship program shall not be liable for any claim of a violation of antitrust, restraint of
165	165	126trade, unfair trade practice, or other anticompetitive conduct arising from conduct undertaken in
166	166	127accordance with the program.
167	167	128 (5) Annually, the manufacturer or representative organization shall submit a report to the
168	168	129commissioner that details the program. The report shall include: (i) a description of the methods
169	169	130used to collect and transport postconsumer paint collected in the State; (ii) the volume and type
170	170	131of postconsumer paint collected, and a description of the methods used to process the paint,
171	171	132including reuse, recycling and other methods; (iii) samples of educational materials provided to
172	172	133consumers of architectural paint; and (iv) the total cost of the program and an independent
173	173	134financial audit. An independent financial auditor shall be chosen by the producer or
174	174	135representative organization. The report or information relating to the report shall be posted on
175	175	136the department’s website and on the website of the representative organization. 8 of 40
176	176	137 (6) Financial, production or sales data reported to the department by a manufacturer or by
177	177	138the representative organization shall not be subject to disclosure but the commissioner may
178	178	139release a summary form of such data that does not disclose financial, production or sales data of
179	179	140the manufacturer, retailer or representative organization.
180	180	141 (d)(1) Generators of household wastes and very small quantity generators are authorized
181	181	142to transport or send their architectural paints to a paint collection site to the extent permitted by a
182	182	143postconsumer paint stewardship program approved by the commissioner.
183	183	144 (2) Notwithstanding any general or special law to the contrary, paint collection sites are
184	184	145authorized to collect and temporarily store architectural paints generated by persons specified in
185	185	146this section in accordance with the requirements of the paint stewardship program in lieu of any
186	186	147otherwise applicable law, rule or regulation.
187	187	148 (3) Nothing in this section shall be construed as restricting the collection of architectural
188	188	149paint by a postconsumer paint stewardship program where such collection is authorized under
189	189	150any other laws or regulations.
190	190	151 (4) Nothing in this section shall be construed to affect any requirements applicable to
191	191	152facilities that treat, dispose, or recycle architectural paint under an otherwise application law, rule
192	192	153or regulation.
193	193	154 (e) The plan required by paragraph (b) of this section 9 shall be submitted not later than
194	194	155July 1, 2025. The manufacturer or representative organization shall implement the plan within 6
195	195	156months of the date that the program plan is approved by the commissioner. The department may
196	196	157extend the date of the plan submission or the date of the implementation of the program for good
197	197	158cause shown. 9 of 40
198	198	159 (f) The manufacturer or representative organization shall submit the first annual report
199	199	160detailing the postconsumer paint collection program as required by subparagraph (5) of
200	200	161paragraph (c) of this section 9 to the commissioner not later than September 1, 2026, and
201	201	162annually thereafter. The department may extend the time for submission of the annual report for
202	202	163cause shown.
203	203	164 SECTION 3. Chapter 94 of the General Laws is hereby amended by inserting after
204	204	165section 329 the following new sections:-
205	205	166 Section 330. In sections 330 to 345, inclusive, the following terms shall have the
206	206	167following meanings unless the context clearly requires otherwise:
207	207	168 "Alternative collection program”, a program for the management of packaging material
208	208	169that is operated by an individual producer or group of producers and that has been approved by
209	209	170the department in accordance with section 338.
210	210	171 “Brand”, a name, symbol, word or mark that identifies a product, rather than its
211	211	172components, and attributes the product to the owner of the brand.
212	212	173 “Collector”, a municipality, private hauler, association, or other entity that collects solid
213	213	174waste from residential generators or schools.
214	214	175 “Committee”, the advisory committee as established by the department pursuant to
215	215	176section 342.
216	216	177 “Coordinating body”, the entity formed by producer responsibility organizations if more
217	217	178than one organization is formed, pursuant to section 332. 10 of 40
218	218	179 "Covered materials”, any packaging material or paper products, regardless of
219	219	180recyclability or compostability, that are sold, offered for sale, or distributed to consumers in the
220	220	181state, including through an internet transaction.
221	221	182 “Covered material category”, the categories of covered materials as defined by the
222	222	183department pursuant to paragraph (d) of section 342.
223	223	184 “Department”, the department of environmental protection.
224	224	185 "Franchisee", a person that is granted a license by a franchisor to use the franchisor's
225	225	186trade name, service mark or related characteristic and to share in the franchisor's proprietary
226	226	187knowledge or processes pursuant to an oral or written arrangement for a definite or indefinite
227	227	188period.
228	228	189 "Franchisor", a person that grants to a franchisee a license to use the person's trade name,
229	229	190service mark or related characteristic and to share in the person's proprietary knowledge or
230	230	191processes pursuant to an oral or written arrangement for a definite or indefinite period.
231	231	192 “Material recovery facility” or “facility”, a facility that receives, processes, and sells or
232	232	193otherwise distributes post-consumer materials for recycling.
233	233	194 “Municipal solid waste”, any residential or commercial solid waste, as defined in 310
234	234	195CMR 19.006.
235	235	196 “Municipality”, a city, town, or regional association acting on behalf of a city or town.
236	236	197 “Needs assessment”, a statewide evaluation of current funding needs affecting recycling
237	237	198access and availability, the capacity and costs associated with the collection and transportation of
238	238	199recyclable material, the processing capacity, market conditions, and opportunities in the state and 11 of 40
239	239	200regionally for recyclable material, and consumer education needs with respect to recycling and
240	240	201reducing contamination in collected recyclable material.
241	241	202 "Packaging material", any part of a package or container, including material that is used
242	242	203for the containment, protection, handling, delivery, and presentation of a product that is sold,
243	243	204offered for sale, imported, or distributed in the state, including through internet transactions
244	244	205"Packaging material" does not include:
245	245	206 (a) A discrete type of material, or a category of material that includes multiple discrete
246	246	207types of material, intended to be used for the long-term storage or protection of a durable product
247	247	208and that can be expected to be usable for that purpose for a period of at least 5 years; or
248	248	209 (b) A discrete type of material, or a category of material that includes multiple discrete
249	249	210types of material, that is a beverage container, as defined in section 321 of this chapter.
250	250	211 “Paper products”, paper that can or has been printed on including flyers, brochures,
251	251	212booklets, catalogues, greeting cards, telephone directories, magazines, paper used for copying,
252	252	213writing or any other general use. Paper products does not include:
253	253	214 (a) paper products that, by virtue of their anticipated use, could become unsafe or
254	254	215unsanitary to recycle;
255	255	216 (b) any literary, text, reference, or other bound book; or
256	256	217 (c) any newspaper.
257	257	218 "Producer", with respect to a covered material, means a party that has legal ownership of
258	258	219the brand of a product for sale, use, or distribution in the state, including online retailers who sell
259	259	220into the state, that utilizes covered material. For packaging, responsible parties shall be 12 of 40
260	260	221determined based on the following criteria: (a) A person who manufactures a product under the
261	261	222manufacturer’s own brand that uses covered material; (b) If subparagraph (a) does not apply, a
262	262	223person who is not the manufacturer of a product under the manufacturer’s own brand that uses
263	263	224covered material, but is the owner or licensee of a trademark under which a covered material is
264	264	225used in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not
265	265	226the trademark is registered; or (c) If subparagraphs (a) and (b) do not apply, a person who
266	266	227imports the product that uses the covered material into the state for use in a commercial
267	267	228enterprise, sale, offer for sale or distribution in the commonwealth.
268	268	229 (d) the definition of “producer” includes a franchisor of a franchise located in the
269	269	230commonwealth but does not include the franchisee operating that franchise.
270	270	231 (e). the definition of “producer” does not include a nonprofit organization exempt from
271	271	232taxation under the United States Internal Revenue Code, Section 501(c)(3), and any entity
272	272	233exempted from the program under section 331 of this chapter.
273	273	234 "Producer responsibility fund" or "fund", a privately held account established and
274	274	235managed by the stewardship organization pursuant to section 337.
275	275	236 "Producer responsibility organization" or "organization", a not-for-profit entity formed by
276	276	237a group of producers and contracted by the department under section 332 to act as an agent on
277	277	238behalf of each producer to develop and implement a producer responsibility plan.
278	278	239 "Producer responsibility plan" or “plan”, a detailed plan that describes the manner in
279	279	240which producers shall comply with the requirements of sections 330 to 345 and all regulations
280	280	241promulgated by the department pursuant to sections 330 to 345. 13 of 40
281	281	242 "Packaging and paper products program" or “program”, the program implemented under
282	282	243sections 330 to 345 by the organization to assess and collect payments from producers based on
283	283	244the type and weight of packaging material sold, offered for sale or distributed for sale in the State
284	284	245by each producer and to reimburse participating municipalities for certain incurred municipal
285	285	246recycling and waste management costs.
286	286	247 “Readily-recycled”, with respect to a covered material, that the type of packaging
287	287	248material or paper product, as annually determined by the department:
288	288	249 (a) can be sorted by entities that process recyclable material generated in the
289	289	250commonwealth; and
290	290	251 (b) has a consistent market for purchase, as based on data from the prior two (2) calendar
291	291	252years. For the purposes of this paragraph, "consistent market for purchase" means, with respect
292	292	253to a type of packaging material, that entities processing recyclable material are willing to
293	293	254purchase full bales of that type of fully sorted packaging material in quantities equal to or in
294	294	255excess of the supply of that fully sorted packaging material.
295	295	256 “Readily-recycled”, does not include covered material categories or types that facilities
296	296	257accept in low quantities or sort out of material during additional processing steps; if facilities
297	297	258cannot aggregate or sell a full bale of a specific covered material category or type due to a lack
298	298	259of market or inability to feasibly separate, that covered material type is not readily-recyclable.
299	299	260Covered material categories or types shall not be considered readily-recyclable, recyclable,
300	300	261compostable, or reusable if they contain toxic substances as defined in this section.
301	301	262 "Recycling", to separate, dismantle or process the materials, components or commodities
302	302	263in covered materials for the purpose of preparing the materials, components or commodities for 14 of 40
303	303	264use or reuse in new products or components. "Recycling" does not include energy recovery or
304	304	265energy generation by means of combustion; pyrolysis, gasification and any other high-heat
305	305	266chemical conversion processes; or landfill disposal of discarded covered material or discarded
306	306	267product component materials.
307	307	268 “Residential”, of a place where residents live, stay, or are cared for over a period of more
308	308	269than two full days and nights, including but not limited to single and multifamily homes,
309	309	270apartments, condominiums, congregate housing, public housing, mobile home parks,
310	310	271dormitories, assisted living residences, nursing homes, hospitals, camps and hotels.
311	311	272 “School”, a public, private, or charter school, including pre-schools, K-12 schools,
312	312	273colleges, and universities.
313	313	274 “Sustainable packaging trust” or “trust”, an expendable trust under control of the
314	314	275department, created under Chapter 10 section 35EEE of the Massachusetts General Laws, for the
315	315	276purpose of collecting funds for department administration of the packaging and paper products
316	316	277program or an alternative collection program, and for collecting fines related to the packaging
317	317	278and paper products program or an alternative collection program.
318	318	279 "Toxic substance", with respect to packaging material, means a chemical or chemical
319	319	280class identified by a state agency, federal agency, international intergovernmental agency,
320	320	281accredited research university, or other scientific evidence deemed authoritative by the
321	321	282department on the basis of credible scientific evidence as being one or more of the following:
322	322	283 (a) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,
323	323	284immunotoxicant, neurotoxicant, endocrine disruptor. 15 of 40
324	324	285 (b) a chemical or chemical class that is persistent or bioaccumulative.
325	325	286 (c) a chemical or chemical class that may harm the normal development of a fetus or
326	326	287child or cause other developmental toxicity in humans or wildlife.
327	327	288 (d) a chemical or chemical class that may harm organs or cause other systemic toxicity.
328	328	289 (e) a chemical or chemical class that may have adverse air quality impacts, adverse
329	329	290ecological impacts, adverse soil quality impacts, or adverse water quality impacts.
330	330	291 (f) the department has determined a chemical or chemical class has equivalent toxicity to
331	331	292the above criteria.
332	332	293 “Toxic substance”, for the purposes of sections 330 to 345, includes the following
333	333	294chemicals or chemical classes: Per and Poly Fluor Alkyl Substances (PFAS); an ortho phthalate;
334	334	295a bisphenol compound; a halogenated, organophosphorus, organonitrogen, or nanoscale flame
335	335	296retardant chemical; Lead; Cadmium; Mercury; Hexavalent Chromium; and Formaldehyde.
336	336	297 “Waste disposal bans”, has the same meaning as in 310 CMR 19.000.
337	337	298 Section 331. Notwithstanding any provision of sections 330 to 345 to the contrary, a
338	338	299producer is exempt from the requirements and prohibitions of sections 330 to 345 in any
339	339	300calendar year in which the producer (a) realized less than $1,000,000 in total gross revenue
340	340	301during the prior calendar year, or (b) the producer sold, offered for sale or distributed for sale in
341	341	302or into the commonwealth during the prior calendar year products contained, protected,
342	342	303delivered, presented or distributed in or using less than one ton of covered material in total.
343	343	304 Section 332. (a) To satisfy the requirements under sections 330 to 345, producers of
344	344	305covered materials sold or distributed into the commonwealth shall, within 6 months following 16 of 40
345	345	306the enactment of this legislation, establish (a) producer responsibility organization(s) that shall
346	346	307act as an agent and on behalf of each producer to operate the packaging and paper products
347	347	308program. If more than one (1) producer responsibility organization is established with respect to
348	348	309a category or categories of covered materials, the producer responsibility organizations may
349	349	310establish a coordinating body to coordinate and manage those producer responsibility
350	350	311organizations, and conduct business between those producer responsibility organizations,
351	351	312collectors, and the department.
352	352	313 (b) If multiple producer responsibility organizations are formed, they must submit one
353	353	314single producer responsibility plan to the department and ensure seamless operation of the
354	354	315packaging and paper products program, thereby assigning responsibility equitably among
355	355	316producer responsibility organizations and relieving the department of responsibility associated
356	356	317with coordinating multiple producer responsibility organizations.
357	357	318 (c) Any producer responsibility organization formed in compliance with sections 330 to
358	358	319345 shall be established and operated as an organization described in section 501(c)(3) of the
359	359	320Internal Revenue Code of 1986 and exempt from taxation under 501(a) of that Code.
360	360	321 Section 333. Within eight (8) months of the promulgation of related regulations by the
361	361	322department pursuant to section 342 the producer responsibility organization(s) shall submit a
362	362	323plan for the establishment of the packaging and paper product program to the department for
363	363	324approval. With the exception of paragraph (h), the plan shall have a duration of five (5) years.
364	364	325The plan(s) must include, at a minimum:
365	365	326 (a) A description of how the producer responsibility organization will administer the
366	366	327program, including the mechanism or process, to be developed with input from producers, by 17 of 40
367	367	328which producers may request and receive assistance from the organization in the reporting of
368	368	329required information and guidance for covered material modifications that would reduce fee
369	369	330payments; and the mechanism or process, to be developed with input from collectors, by which
370	370	331participating collectors may request and receive assistance from the organization in the reporting
371	371	332of required information and guidance for recycling program modifications that would increase
372	372	333access to and participation in residential recycling programs.
373	373	334 (b) A description of how the organization intends to solicit and consider input from the
374	374	335advisory committee and other interested entities, including, but not limited to, producers,
375	375	336collectors, environmental organizations, and waste and recycling entities, regarding the operation
376	376	337of the packaging and paper products program.
377	377	338 (c) A description of the funding mechanism covering the entire cost of the program,
378	378	339including how the organization intends to establish and manage the producer responsibility fund
379	379	340consistent with the requirements of sections 335 and 337, including, but not limited to: staffing
380	380	341the organization and coordinating body to manage the fund; a plan to ensure equity of access for
381	381	342financially or otherwise challenged municipal participants; technical support to producers and
382	382	343collectors regarding program requirements; administering and collecting payments to and
383	383	344reimbursements from the fund and the financial mechanisms, including investment types if any,
384	384	345the organization intends to use to manage monies within the fund.
385	385	346 (d) A proposed budget outlining the anticipated costs of operating the program, including
386	386	347identification of any start-up costs that will not be ongoing and a description of the method by
387	387	348which the organization intends to determine and collect producer payments during the start-up
388	388	349period of program operation, and to reimburse or require additional payments by those producers 18 of 40
389	389	350subsequent to the start-up period based on producer reporting of the actual amount of packaging
390	390	351material sold, offered for sale or distributed for sale in or into the commonwealth by each
391	391	352producer during the start-up period. The proposed budget should describe how the organization
392	392	353will maintain a financial reserve sufficient to operate the program in a fiscally prudent and
393	393	354responsible manner, such that it considers historical variations in market values of post-consumer
394	394	355packaging types. The proposed budget under this paragraph may overestimate the cost of
395	395	356operating the program during the start-up period of operation but must describe the method and
396	396	357basis for any overestimate.
397	397	358 (e) A proposal for how expenditures from the fund will be used for investments in public
398	398	359outreach, education, communication, and infrastructure enhancement in a way that increases
399	399	360access to recycling and reuse throughout the commonwealth, and how the organization’s
400	400	361development of such investment proposals must incorporate input from producers, participating
401	401	362collectors, municipalities, environmental organizations, and waste and recycling entities. Public
402	402	363outreach, education, and communication shall:
403	403	364 (1) Promote the proper end-of-life management of covered materials.
404	404	365 (2) Provide information on how to prevent litter of covered materials.
405	405	366 (3) Provide recycling instructions that are, to the extent practicable; consistent statewide;
406	406	367easy to understand; easily accessible; and in compliance with the annually published list of
407	407	368readily recyclable materials under paragraph (c) of section 342.
408	408	369 (4) Provide for outreach and education that are; designed to achieve covered materials
409	409	370goals under paragraph (e) of this section, including the prevention of contamination of materials; 19 of 40
410	410	371coordinated across programs or regions to avoid confusion for consumers; and developed in
411	411	372consultation with local governments and other stakeholders.
412	412	373 (f) A description of how, through the proposed expenditures under paragraph (e), the
413	413	374organization intends to provide convenient and free consumer access to collection services or
414	414	375collection facilities for all residents in the Commonwealth, and how the organization intends to
415	415	376achieve and assist collectors and facilities in achieving a combined reduction and recycling rate,
416	416	377based on regular audits of inbound waste at facilities as described in paragraph (i) of this section
417	417	378and outbound tonnages of covered material from facilities as reported to the department pursuant
418	418	379to paragraph (f) of section 342, of no less than sixty-five (65) percent by weight by July 1, 2027,
419	419	380no less than eighty (80) percent by weight by July 1, 2031, and no less than one hundred (100)
420	420	381percent by weight by July 1, 2035 of covered materials managed by the organization. The
421	421	382organization shall also provide a description of how it intends to achieve and assist collectors in
422	422	383achieving performance standards for each type of covered material as published annually by the
423	423	384department pursuant to paragraph (d) of section 342.
424	424	385 (g) A proposed schedule of minimum post-consumer recycled material content rate
425	425	386requirements for covered materials, including a description of how the organization intends to
426	426	387meet the proposed minimum post-consumer recycled material content rates. The minimum post-
427	427	388consumer recycled material content rates shall include each covered material category, and shall
428	428	389not be less than ten (10) percent of all material in each covered material category, by weight.
429	429	390 (h) A description of how the organization intends to use the materials cost differentiation
430	430	391system developed by the department and the annual schedule of adjustments under paragraphs
431	431	392(a) and (b) of section 342 to assess fees for producers of each type of covered materials, as 20 of 40
432	432	393defined by the department, in compliance with all applicable provisions of sections 330 to 345.
433	433	394The description must include a flat-rate fee schedule for producers generating between one (1)
434	434	395and fifteen (15) tons of covered materials annually. The organization shall develop an evaluation
435	435	396system for the fee structure, and shall annually evaluate, revise and submit an updated
436	436	397assessment schedule along with the annual report submitted to the department pursuant to section
437	437	398339.
438	438	399 (i) A description of how the organization intends to fund representative third-party,
439	439	400independent audits of both inbound and outbound recyclable material generated in the
440	440	401commonwealth that is processed and sold by facilities; waste characterizations of municipal solid
441	441	402waste being disposed of in the commonwealth; and litter audits. The audits must be conducted at
442	442	403least annually, and must include:
443	443	404 (1) A description of the sampling techniques to be used in those audits, which must
444	444	405include random sampling.
445	445	406 (2) A description of how those audits, at a minimum, will be designed to solicit
446	446	407information regarding the extent to which recyclable material processed and sold by those
447	447	408facilities reflects the tons of each type of covered material recycled in the commonwealth and the
448	448	409ultimate state or country destination of and intended use for that material.
449	449	410 (3) Requirements regarding how the audits will be designed so that information obtained
450	450	411through the audit of one facility will not be used to infer information about a different facility
451	451	412that uses different processing equipment, different sorting processes or different staffing levels to
452	452	413conduct such processing. 21 of 40
453	453	414 (4) Requirements regarding how a facility will be allowed to request and receive an audit
454	454	415if it can credibly demonstrate that an audit result being applied to its material output is not
455	455	416representative of its current operations.
456	456	417 (5) For waste disposal audits, at a minimum, a description of the types and weight of
457	457	418packaging material in the disposal waste stream, and the percentage by weight and volume of the
458	458	419disposal waste stream that is comprised of covered materials.
459	459	420 (6) For litter audits, to the maximum extent practicable, a description of the packaging
460	460	421material type by weight, identification of producer, and the general description of where the litter
461	461	422is accumulating throughout the State.
462	462	423 (j) A description of how the plan addresses the needs identified in the most recently
463	463	424published needs assessment.
464	464	425 (k) Any additional information required by the department.
465	465	426 Section 334. In accordance with the applicable provisions of sections 330 to 345, the
466	466	427department shall review the producer responsibility plan and amendments to such plan submitted
467	467	428by the organization or coordinating body and shall require the implementation of corrective
468	468	429actions by the organization to the packaging and paper products program. Following approval of
469	469	430the plan by the department under this section, the producer responsibility organization shall
470	470	431immediately begin implementation of the plan.
471	471	432 (a) The department shall review the producer responsibility plan submitted by the
472	472	433organization or coordinating body pursuant to section 333 and approve or deny the plan within
473	473	434ninety (90) days of receipt. The department shall approve the plan if the department determines 22 of 40
474	474	435that the plan meets the requirements of section 333 and is otherwise consistent with all
475	475	436applicable requirements of sections 330 to 345 of this chapter. If the department approves the
476	476	437plan, the department shall transmit written notice of that approval to the organization. An
477	477	438approval under this section must terminate five (5) years from the date of that approval but may
478	478	439be extended for an additional five (5)-year period following the submission by the stewardship
479	479	440organization of an updated plan consistent with section 333 that is approved by the department
480	480	441consistent with this section. The organization or coordinating body must submit an updated plan
481	481	442no later than one hundred twenty (120) days prior to the date its current plan expires.
482	482	443 (b) If the department determines that a submitted plan fails to meet any applicable
483	483	444requirements of sections 330 to 345, the department shall provide written notice to the
484	484	445organization describing the reasons for rejecting the plan. No later than forty-five (45) days after
485	485	446receiving written notice rejecting a submitted plan, the organization shall revise and resubmit the
486	486	447plan to the department. The department shall review the revised plan, decide whether to approve
487	487	448it and provide written notice of the department's decision within forty-five (45) days of receipt of
488	488	449the revised plan.
489	489	450 (c) The organization may propose modifications to the approved plan, provided the
490	490	451organization submits the proposed modifications to the department for review and consults the
491	491	452advisory committee as required under paragraph (d) of section 332. Not later than forty-five (45)
492	492	453days following receipt of proposed modifications, the department shall approve the modifications
493	493	454if the department determines the revision is in accordance with sections 330 to 345. If the
494	494	455department determines the revision is not in accordance with sections 330 to 345, the department
495	495	456shall communicate the determination to the organization, at which time the organization shall
496	496	457resubmit proposed modifications to the department for approval. If the department does not make 23 of 40
497	497	458a determination under this paragraph within forty-five (45) days of the receipt of a proposed
498	498	459modification, the modification shall be considered to be approved.
499	499	460 (d) If, based on its review of an organization's annual report required under section 339 or
500	500	461on a different basis, the department determines that the organization is not operating the
501	501	462packaging and paper product program in a manner consistent with its approved plan, or the
502	502	463provisions of this section, the department may require the organization to implement
503	503	464amendments to the plan or corrective actions to the program. If the organization fails to
504	504	465implement a department-required amendment to the plan or corrective action to the program
505	505	466within the time frame for implementation required by the department, the department may take
506	506	467enforcement actions pursuant to section 343.
507	507	468 Section 335. In accordance with the provisions of this section and the regulations
508	508	469promulgated by the department, no later than thirty (30) days after the approval of the producer
509	509	470responsibility plan under section 334, and quarterly thereafter, a producer shall make payments
510	510	471to the organization to be deposited into the producer responsibility fund under section 337, based
511	511	472on the amount of each type of covered material sold, offered for sale or distributed for sale in or
512	512	473into the commonwealth by the producer and not managed under an approved alternative
513	513	474collection program. The department shall promulgate regulations under section 342 setting forth
514	514	475the manner in which such payments must be calculated. Payments must include a producer’s
515	515	476share of administrative, enforcement, education and infrastructure costs, and must reflect the per
516	516	477ton costs associated with collection, processing, transportation and recycling or disposal of
517	517	478covered materials; the costs associated with increasing access to reuse and recycling of covered
518	518	479materials; and other criteria as determined by paragraph (b) of section 342. In total, payments 24 of 40
519	519	480made by producers to the organization shall be sufficient to cover all expenditures under section
520	520	481337.
521	521	482 Section 336. Beginning no later than 180 days after the approval of the producer
522	522	483responsibility plan under section 334, and in conjunction with payments made pursuant to
523	523	484section 335, a producer shall annually report to an organization the total tons of each type of
524	524	485packaging material sold, offered for sale or distributed for sale in or into the commonwealth by
525	525	486the producer in the prior calendar year and the methods for determining the reported amounts;
526	526	487the characteristics of that packaging material that are relevant to the fee adjustment criteria as
527	527	488determined by the department by rule in accordance with paragraph (b), section 342; and a list of
528	528	489all of the producer's brands associated with that packaging material. The advisory committee
529	529	490may (i) request additional data and information from the producer; and (ii) recommend
530	530	491amendments to the annual reporting requirements for producers.
531	531	492 Section 337. In accordance with the provisions of this section and the regulations
532	532	493promulgated by the department, the organization or coordinating body shall establish and
533	533	494manage a producer responsibility fund. The organization shall deposit into the fund all payments
534	534	495received from producers in accordance with section 335 and shall expend those funds for the
535	535	496following uses:
536	536	497 (a) To reimburse participating collectors in accordance with section 341.
537	537	498 (b) To fund the actual operating costs of the organization, which may not exceed the
538	538	499estimated operating costs indicated in the plan approved by the department pursuant to section
539	539	500341, and which must be verified through a third-party audit paid for by the stewardship
540	540	501organization. 25 of 40
541	541	502 (c) To pay into the sustainable packaging trust all applicable fees required by the
542	542	503department under section 342(e).
543	543	504 (d) To make investments in education and infrastructure that support the recycling of
544	544	505covered material in the commonwealth, which are directly supported by producer payments for
545	545	506covered materials and must be approved by the department prior to any such expenditures, and
546	546	507which must incorporate input from producers, facilities, and participating collectors. Of the
547	547	508expenditures from the producer responsibility fund for a fiscal year, the organization shall ensure
548	548	509that not less than two (2) percent is used for education and not less than eight (8) percent is used
549	549	510for infrastructure described under this section and in compliance with the approved producer
550	550	511responsibility plan under section 334.
551	551	512 (1) The organization shall submit any proposed expenditure under this paragraph to the
552	552	513advisory committee for approval prior to making such expenditure.
553	553	514 (2) The department shall promulgate regulations setting approval criteria for the
554	554	515evaluation of proposed expenditures under this paragraph.
555	555	516 (3) The department shall approve or deny a proposed expenditure under this paragraph
556	556	517within 90 days of receipt of the proposal.
557	557	518 (e) To fulfill any other obligation required by the producer responsibility plan, including
558	558	519representative audits of covered materials from materials recovery facilities, solid waste
559	559	520facilities, and litter. 26 of 40
560	560	521 (f) Expenditures from the producer responsibility fund shall be used only for the uses
561	561	522described in this section; and shall not be used to pay penalties imposed under section 342, or
562	562	523any costs associated with litigation against the commonwealth.
563	563	524 (g) If for any reason sections 330 to 345 are repealed, or the producer responsibility
564	564	525organization ceases operation, the entire fund balance shall be transferred by the organization to
565	565	526the commonwealth of Massachusetts to be deposited into the sustainable packaging trust.
566	566	527 Section 338. In accordance with the requirements of this section and the regulations
567	567	528promulgated by the department, a producer or group of producers may develop and operate an
568	568	529alternative collection program to collect and manage a type or types of covered material sold,
569	569	530offered for sale or distributed for sale in or into the commonwealth by the producer or producers.
570	570	531A producer that manages a type of covered material under an approved alternative collection
571	571	532program through reduction, reuse, or recycling may wholly or partially offset the producer's
572	572	533payment obligations under the packaging and paper product program with respect to that same
573	573	534type of covered material only.
574	574	535 (a) Once a producer responsibility organization or coordinating body has a plan approved
575	575	536by the department for the creation of a packaging and paper products program, a producer or
576	576	537group of producers seeking to implement an alternative collection program shall submit a
577	577	538proposal for the establishment of that program to the department for approval. The department
578	578	539shall provide an opportunity for public review and comment on the proposal or deny the proposal
579	579	540within ninety (90) days of receipt. The department may approve an alternative collection
580	580	541program for a term of five (5) years and, at the expiration of such term, the producer or group of
581	581	542producers operating the program may submit an updated proposal to the department for approval. 27 of 40
582	582	543 (b) In determining whether to approve a proposed alternative collection program, the
583	583	544department shall consider:
584	584	545 (1) Whether the alternative collection program will provide convenient, free, statewide
585	585	546collection opportunities for the types of packaging material to be collected under that program.
586	586	547 (2) To what extent the alternative collection program intends to manage those types of
587	587	548covered material to be collected under the program through reduction, reuse for an original
588	588	549purpose, through recycling or through disposal at an incineration facility. The department may
589	589	550not approve an alternative collection program that proposes management of a covered material
590	590	551type through disposal at an incineration facility unless that covered material is not readily
591	591	552recyclable as defined by the department pursuant to section 342 and the program proposes a
592	592	553process to begin reuse or recycling of that type of covered material within a period of 3 years or
593	593	554less. The program shall ensure that a combined reduction and recycling rate is achieved of no
594	594	555less than sixty-five (65) percent by weight by July 1, 2027, no less than eighty (80) percent by
595	595	556weight by July 1, 2031, and no less than one hundred (100) percent by weight by July 1, 2035 of
596	596	557covered materials managed by the organization.
597	597	558 (3) Whether the education and outreach strategies proposed for the alternative collection
598	598	559program can be expected to significantly increase consumer awareness of the program
599	599	560throughout the commonwealth.
600	600	561 (4) How the alternative collection program intends to accurately measure the amount of
601	601	562each covered material type collected, reused, recycled, disposed at an incineration facility or
602	602	563otherwise managed under the program. 28 of 40
603	603	564 (5) To what extent the alternative collection program may: (i) disproportionately impact
604	604	565one community over another; (ii) impact environmental justice populations, as defined in section
605	605	56662 of chapter 30, and (iii) provide equitable regional access to the program.
606	606	567 (c) A proposed modification to an approved alternative collection program must be
607	607	568submitted to the department for written approval. The department shall approve or deny a
608	608	569proposed modification based on application of the criteria described in paragraph (b).
609	609	570 (d) A producer or producers managing an approved alternative collection program shall
610	610	571report annually and concurrent with the reporting required by section 339 to the organization and
611	611	572to the department the following information:
612	612	573 (1) The total tons of each type of covered material collected, reused, recycled, disposed at
613	613	574an incineration facility or otherwise managed under the alternative collection program in the
614	614	575prior twelve months, including a breakdown of the total tons of each type of material to be
615	615	576credited to each producer participating in the alternative collection program.
616	616	577 (2) A list of the collection opportunities in the commonwealth for the types of covered
617	617	578material managed under the alternative collection program that were made available in the prior
618	618	579twelve months.
619	619	580 (3) A description of the education and outreach strategies implemented by the alternative
620	620	581collection program in the prior calendar year to increase consumer awareness of the program
621	621	582throughout the commonwealth.
622	622	583 (4) Progress toward reducing the disposed tons of the material.
623	623	584 (5) Any additional information required by the department. 29 of 40
624	624	585 (e) No later than thirty (30) days after the approval of an alternative collection program
625	625	586under this section, and quarterly thereafter, a producer or producers participating in an approved
626	626	587alternative collection program shall make a payment into the sustainable packaging trust for the
627	627	588department’s administrative costs of operating the program as determined by the department
628	628	589pursuant to section 342(f).
629	629	590 (f) If the department determines that an approved alternative collection program is not
630	630	591operating in a manner consistent with the proposal approved under this section or the provisions
631	631	592of this section, the department shall provide written notice to the producer or producers operating
632	632	593the alternative collection program regarding the nature of the deficiency, the actions necessary to
633	633	594correct the deficiency and the time by which such actions must be implemented. If the
634	634	595department determines that the producer or group of producers have failed to implement the
635	635	596actions described in the written notice within the required time frame, the department shall notify
636	636	597the producers or group of producers as well as the producer responsibility organization or
637	637	598coordinating body in writing that the producer or group of producers are ineligible to offset
638	638	599payment obligations under the packaging and paper product program based on covered material
639	639	600managed under the alternative collection program. The department may also bring enforcement
640	640	601actions against the producer or group of producers under section 343.
641	641	602 Section 339. The producer responsibility organization shall submit an annual report to the
642	642	603department on a regular schedule determined by the department for the preceding calendar year
643	643	604the program was in operation, which shall include:
644	644	605 (a) Contact information for the producer responsibility organization. 30 of 40
645	645	606 (b) A list of participating producers and the brands of products associated with those
646	646	607producers.
647	647	608 (c) The total amounts of each type of covered material sold, offered for sale or distributed
648	648	609for sale in or into the commonwealth by each participating producer as reported in accordance
649	649	610with section 336.
650	650	611 (d) As applicable, the total amount of each type of packaging material collected and
651	651	612managed by each participating producer through alternative collection programs approved by the
652	652	613department under section 338
653	653	614 (e) A complete accounting of payments made to and by the organization during the prior
654	654	615calendar year, as determined by an independent financial audit, as performed by an independent
655	655	616auditor, including information on how the organization determined the amount of such payments
656	656	617in conformance with regulations promulgated in accordance with section 342.
657	657	618 (f) A copy of the independent audit described in paragraph (e).
658	658	619 (g) A list of producers not participating in the program that are required to participate in
659	659	620the program and any product specific non-compliance, if known by the organization.
660	660	621 (h) A description of education and infrastructure investments made by the organization in
661	661	622prior calendar years and how those expenditures quantifiably increased access to recycling and
662	662	623reuse of covered materials throughout the commonwealth.
663	663	624 (i) An updated assessment schedule, as required under paragraph (h) of section 333. 31 of 40
664	664	625 (j) Results of representative inbound and outbound audits of recyclable material
665	665	626processed and sold by materials recycling facilities in the commonwealth, waste characterization
666	666	627of municipal solid waste being disposed of in the commonwealth, and litter audits.
667	667	628 (k) Progress toward any program goals determined in the producer responsibility plan.
668	668	629 (l) Any other information the department determines to be appropriate.
669	669	630 Section 340. In accordance with the provisions of this section and the regulations
670	670	631promulgated by the department, a collector may elect to, but is not required to, participate in the
671	671	632program under sections 330 to 345. All collectors shall provide collection and recycling of
672	672	633covered recyclables to all residential units and schools to which they provide service. The
673	673	634producer responsibility organization(s) or coordinating body shall reimburse participating
674	674	635collectors for incurred net costs associated with collection, processing, transportation and
675	675	636recycling or disposal of covered materials from all residential units and schools and shall ensure
676	676	637that, in the event no collector has elected to participate in the program in a given jurisdiction,
677	677	638convenient, equitable and free access to recycling services is available to residential units and
678	678	639schools within that jurisdiction. Participating collectors shall not charge fees to residential units
679	679	640or schools for reimbursable costs.
680	680	641 (a) To be eligible for reimbursement of costs under section 341 as a participating
681	681	642collector, a collector must provide for the collection and recycling of covered materials that are
682	682	643generated by all residential and school generators using its service and that are readily recyclable
683	683	644as listed regularly by the department and that are not collected by an alternative collection
684	684	645program in accordance with section 338, must annually report to the organization or coordinating
685	685	646body all information necessary for the organization or coordinating body to determine the 32 of 40
686	686	647collector’s incurred net costs associated with collection, processing, transportation and recycling
687	687	648or disposal of recyclable material and of municipal solid waste.
688	688	649 (b) A collector shall report the information described in paragraph (a) to the organization
689	689	650or coordinating body on a form provided by or approved by the department.
690	690	651 (c) Two or more municipalities, a regional refuse district or association, a municipally
691	691	652owned processing facility or quasi-municipal entity that manages materials on behalf of a
692	692	653municipality may elect to jointly report to the organization and jointly receive reimbursement
693	693	654payments from the stewardship organization.
694	694	655 Section 341. In accordance with the provisions of this section and regulations
695	695	656promulgated by the department, the organization or coordinating body shall calculate and make
696	696	657reimbursement payments from the fund to participating collectors to reimburse those collectors
697	697	658for incurred costs associated with collection, processing, transportation and recycling of covered
698	698	659materials from all residential units and schools.
699	699	660 (a) In accordance with the regulations promulgated by the department pursuant to section
700	700	661342, the organization or coordinating body shall determine the amount of reimbursements to
701	701	662participating collectors under this section based on the following information:
702	702	663 (1) Information provided by participating collectors to the organization or coordinating
703	703	664body in accordance with section 340 regarding the incurred net costs associated with collection,
704	704	665processing, transportation and recycling or disposal of recyclable material.
705	705	666 (2) Information provided to the department by facilities pursuant to paragraph (f) of
706	706	667section 342 and made available by the department to the organization or coordinating body, 33 of 40
707	707	668including the tons of readily recyclable material received by each facility from each collector, the
708	708	669tons of processed readily recyclable material sold by each facility, and any revenue received.
709	709	670 (3) Information obtained by the organization or coordinating body through the audits of
710	710	671facilities that process readily recyclable material generated in the commonwealth as required in
711	711	672the approved plan under section 333.
712	712	673 (4) Any other information specified by the department by rule.
713	713	674 (b) In accordance with regulations promulgated by the department, the organization or
714	714	675coordinating body shall use the information described in paragraph (a) to determine the total tons
715	715	676of each covered material type recycled by all collectors at each recycling establishment and the
716	716	677percentage of those total tons attributable to each participating collector. In the case of two or
717	717	678more municipalities that jointly send recyclable material to a recycling establishment, the
718	718	679organization shall assume that an equal amount of the jointly sent material is attributable to each
719	719	680resident of each municipality unless those municipalities by agreement identify an unequal per
720	720	681capita division of that jointly sent material for the purposes of this section.
721	721	682 Section 342. The department shall administer and enforce this section and shall
722	722	683promulgate regulations as necessary to implement, administer and enforce this section. All
723	723	684regulations developed under this section shall be promulgated no later than six months after the
724	724	685passage of this act.
725	725	686 (a) The department shall establish an advisory committee that represents a range of
726	726	687interested and engaged persons relevant to the category of covered materials of the applicable
727	727	688program, including the commissioner of the department of environmental protection or a
728	728	689designee, one member who shall be appointed by the attorney general and who shall have 34 of 40
729	729	690expertise in consumer protection, and individuals representing producers, retailers, waste haulers,
730	730	691material recovery facility operators, municipalities, environmental and community organizations,
731	731	692freshwater and marine litter programs, regional end-of-life management of covered materials,
732	732	693and environmental and human health scientists. Each individual serving on an advisory
733	733	694committee may represent only one (1) member of each category listed under this paragraph, and
734	734	695the organization or coordinating body shall ensure that no category has a disproportionate
735	735	696representation on an advisory committee. The department may select a third-party facilitator for
736	736	697the advisory committee.
737	737	698 (b) The department shall hold an advisory meeting at least quarterly; request and consider
738	738	699comments from the advisory committee prior to the submission to the department of the plan or
739	739	700any modifications to the plan; and include a summary of advisory committee engagement and
740	740	701input in the report under section 339.
741	741	702 (c) The department shall conduct an initial needs assessment within six months of the
742	742	703enactment of this legislation. The needs assessment shall include an assessment of the impact of
743	743	704the newspaper industry on recycling infrastructure and the environment in the Commonwealth
744	744	705and may include recommendations regarding definitions in section 330 of this chapter. The
745	745	706initial needs assessment may also include recommendations for a producer responsibility
746	746	707organization plan. The needs assessment shall be published and publicly accessible on the
747	747	708department’s website. A copy of the needs assessment shall be filed with the clerks of the senate
748	748	709of the house of representatives and the joint committee on environment, natural resources and
749	749	710agriculture. 35 of 40
750	750	711 (d) Subsequent needs assessments shall be conducted every four years by the department
751	751	712in consultation with the committee. Subsequent needs assessments may include an assessment of
752	752	713the impacts of the newspaper industry on recycling infrastructure in the Commonwealth and may
753	753	714include recommendations regarding definitions in section 330 of this chapter. Subsequent needs
754	754	715assessments may also include recommendations to include a producer responsibility organization
755	755	716plan. Subsequent needs assessments shall be published and publicly accessible on the
756	756	717department’s website. A copy of subsequent needs assessments shall be filed with the clerks of
757	757	718the senate and the house of representatives and the joint committee on environment, natural
758	758	719resources and agriculture.
759	759	720 (e) The department shall develop a material cost differentiation system with which the
760	760	721producer responsibility organization or coordinating body will calculate material costs for
761	761	722collector reimbursements and producer payments. The material cost differentiation mechanism
762	762	723shall be based on the net cost of residential curbside collection or transfer station operation, on-
763	763	724site processing cost for each readily recyclable covered material types, management cost of non-
764	764	725readily recyclable covered materials, transportation cost for each covered material, and any other
765	765	726cost factors as determined by the department. Cost calculations shall take into consideration
766	766	727revenue generated from recyclable materials and must incentivize operational efficiency and
767	767	728contamination reduction.
768	768	729 (f) The department shall regularly publish a schedule of adjustments to be used by the
769	769	730producer responsibility organization in determining the amount of producer payments required
770	770	731under section 335. The schedule of adjustments shall apply to both readily and non-readily
771	771	732recyclable covered materials as defined in paragraph (c) and shall be used to individually adjust
772	772	733the fees assessed for each category of covered material as defined in paragraph (d). To minimize 36 of 40
773	773	734the extraction, manufacture, use, and end-of-life-management impacts of covered materials, the
774	774	735schedule of adjustments must be structured to incent:
775	775	736 (1) Covered material waste reduction.
776	776	737 (2) Reuse and lifespan extension of packaging.
777	777	738 (3) Use of readily recyclable materials to manufacture covered materials.
778	778	739 (4) Increased use of post-consumer recycled content material in covered materials so long
779	779	740as it does not increase the toxicity of the packaging material.
780	780	741 (5) Reduced use of toxic substances in covered materials, which raise the lifecycle
781	781	742environmental and societal costs of packaging.
782	782	743 (6) The use of the minimum quantity of packaging necessary to effectively deliver a
783	783	744product without damage or spoilage.
784	784	745 (7) Single-material packaging with clear recycling or disposal instructions for consumers,
785	785	746and other design characteristics that reduce contamination in recycling.
786	786	747 (8) Domestic processing of covered materials.
787	787	748 (9) Minimal life cycle impact of covered materials.
788	788	749 (g) The department shall regularly publish a list of readily recyclable materials,
789	789	750developed through coordination with the producer responsibility organization and material
790	790	751recovery facilities or other entities managing covered materials. The department shall provide for
791	791	752a transitional period between the time that a type of covered material is determined to be readily
792	792	753recyclable or to not be readily recyclable and the time that such determinations will be effective 37 of 40
793	793	754for the purposes of determining producer payments and collector reimbursements in accordance
794	794	755with sections 330 to 345. The department may amend the list of readily recyclable materials as
795	795	756needed.
796	796	757 (h) The department shall coordinate with the producer responsibility organization to
797	797	758establish categories of covered materials. The covered material categories shall group covered
798	798	759materials that have similar properties such as chemical composition, shape, or other
799	799	760characteristics, including, but not limited to: rigid or flexible plastics made of polyethylene
800	800	761terephthalate (PET), polyethylene (PE), polyvinyl chloride (PVC), polypropylene (PP),
801	801	762polystyrene (PS), poly coated fiber, multi-layered plastics, other (BPA, Compostable Plastics,
802	802	763Polycarbonate and LEXAN); metal, such as aluminum, tin, and steel; paper; cartons; and glass.
803	803	764 (i) Beginning at the time that the producer responsibility organization is required to
804	804	765submit its first annual report to the department, the department shall submit to the producer
805	805	766responsibility organization, and quarterly thereafter, all costs incurred in the administration of the
806	806	767packaging and paper products program, including oversight, issuance of any regulations,
807	807	768conducting the needs assessment, any third-party facilitators hired for the advisory committee,
808	808	769planning, plan review, including proposed modifications to the plan under section 334,
809	809	770compliance, enforcement, and sufficient staff positions to administer the program. All funds shall
810	810	771be deposited in the sustainable packaging trust.
811	811	772 (j) Beginning at the time that a producer or producers managing an alternative collection
812	812	773program are required to submit the first annual report to the department pursuant to section
813	813	774338(d), the department shall submit to the producer or producers, and quarterly thereafter, all
814	814	775costs incurred in the administration of the alternative collection program, including oversight, 38 of 40
815	815	776issuance of any regulations, planning, plan review, including proposed modifications to the plan
816	816	777under section 338, compliance, enforcement, and sufficient staff positions to administer the
817	817	778program. All funds shall be deposited in the sustainable packaging trust.
818	818	779 (k) Beginning one (1) year after passage of sections 330 to 345, the department shall
819	819	780establish a toxic substances list, and may reference existing toxic or hazardous substances lists
820	820	781created by other state agencies and the Interstate Chemicals Clearinghouse. Any person may
821	821	782petition the department to add a chemical or chemical class substance to the list based on
822	822	783scientific evidence. The department shall review and update the list of toxic substances at least
823	823	784every three years.
824	824	785 (l) Upon request by the department, the organization shall provide a list of producers that
825	825	786are participating in the program and are compliant with the program's requirements and, if
826	826	787known to the organization, a list of producers that are not participating in the program and are
827	827	788not compliant with the program's requirements.
828	828	789 (m) Based on the information provided to the department under paragraph (g) and any
829	829	790other information considered by the department, the department shall make available on its
830	830	791publicly accessible website a regularly updated list of producers that the department has
831	831	792determined are compliant with all applicable requirements of this section and a list of producers
832	832	793and, where applicable, specific products that the department has determined are not compliant
833	833	794with all applicable requirements of this section. The department shall conduct outreach to
834	834	795retailers to ensure that retailers are aware of the information made available under this paragraph
835	835	796and any changes to that information. 39 of 40
836	836	797 Section 343. Within 18 months of the passage of this chapter, no producer, distributor,
837	837	798retailer, or other responsible party for a covered material shall sell, offer for sale, use, or
838	838	799distribute any covered material to any person in the commonwealth if the producer of such
839	839	800materials is not in compliance with all applicable parts of sections 330 to 345.
840	840	801 (a) Any producer, distributor, retailer, or other responsible party that violates this section
841	841	802shall be subject to a fine for each violation and for each day that the violation occurs in an
842	842	803amount of not more than $200,000.
843	843	804 (b) The department may bring a civil action to enjoin the sale, distribution, or importation
844	844	805into the commonwealth of a covered material in violation of this part.
845	845	806 (c) The penalties provided for in this section may be recovered in a civil action brought in
846	846	807the name of the People of the Commonwealth of Massachusetts by the Commonwealth’s
847	847	808Attorney General. Any funds collected under this section in an action in which the Attorney
848	848	809General has prevailed shall be deposited in the sustainable packaging trust.
849	849	810 Section 344. A producer or producer responsibility organization, including a producer's
850	850	811or organization's officers, members, employees and agents that organize a packaging and paper
851	851	812product program or an alternative collection program under sections 330 to 345, is immune from
852	852	813liability for the producer's or organization’s conduct under state laws relating to antitrust,
853	853	814restraint of trade, unfair trade practices and other regulation of trade or commerce only to the
854	854	815extent necessary to plan and implement the producer's or organization’s packaging and paper
855	855	816product program or alternative collection program consistent with the provisions of sections 330
856	856	817to 345. 40 of 40
857	857	818 Section 345. Proprietary information submitted to the department pursuant to the
858	858	819requirements of sections 330 to 345 or the rules adopted pursuant to sections 330 to 345 that is
859	859	820identified by the submitter as proprietary information is confidential.