Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H779 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3565 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 779
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Michael S. Day
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to save recycling costs in the commonwealth.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Michael S. Day31st Middlesex1/20/2023 1 of 34
16	16	HOUSE DOCKET, NO. 3565 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 779
18	18	By Representative Day of Stoneham, a petition (accompanied by bill, House, No. 779) of
19	19	Michael S. Day relative to recycling costs. Environment and Natural Resources.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE HOUSE, NO. 878 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act to save recycling costs in the commonwealth.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 Section 1: Definitions
31	31	2 (a)“Beverage container” means a container used to contain all drinks in liquid form
32	32	3and intended for human consumption.
33	33	4 (b)“Bio-plastic” or “bio-plastics” means plastic produced from biological sources
34	34	5such as vegetable fats and oils, polysaccharides, sugar, proteins, or other materials that are
35	35	6designed to be biodegradable.
36	36	7 (c)“Brand” means any mark, word, name, symbol, design, device, or graphical
37	37	8element or a combination thereof, including a registered or unregistered trademark, that identifies
38	38	9and distinguishes a product from other products. 2 of 34
39	39	10 (d)“Commissioner” means the Commissioner of Department of Environmental
40	40	11Protection.
41	41	12 (e)“Comptroller” means the chief fiscal officer of the state.
42	42	13 (f)“Department” means the Department of Environmental Protection.
43	43	14 (g)“Discarded/Discards” [synonymous with “Generated/Generation”] means
44	44	15packaging material that has been used for its intended purpose and is no longer needed by
45	45	16consumers, businesses, institutions, and other users, and can be managed through reuse,
46	46	17recycling, or disposal.
47	47	18 (h)“Disposal” means the landfilling or incineration of packaging material.
48	48	19“Disposal” shall also include energy recovery or energy generation by any means, including, but
49	49	20not limited to, combustion, pyrolysis, gasification, solvolysis, thermal desorption, waste to fuel,
50	50	21or any other chemical conversion process, or molecular conversion process. “Disposal” shall also
51	51	22include the use of materials as landfill cover.
52	52	23 (i)“Environmental justice community” means any neighborhood or community
53	53	24which is composed predominantly of persons of color or persons below the poverty line, that is
54	54	25subject to a disproportionate burden of environmental hazards.
55	55	26 (j)“Generated/Generation” [synonymous with “Discarded/Discards”] means
56	56	27packaging material that has been used for its intended purpose and is no longer needed by
57	57	28consumers, businesses, institutions, and other users, and can be managed through reuse,
58	58	29recycling, or disposal. 3 of 34
59	59	30 (k)“Local Government” means any municipal corporation, governmental subdivision
60	60	31of the State, local government unit, special district, school, local or regional board, commission,
61	61	32or authority authorized by law to plan or provide for waste management services for a specific
62	62	33geographical area
63	63	34 (l)“Packaging” or “Packaging Material” means a discrete material or category of
64	64	35material, regardless of recyclability, including but not limited to such material types as paper,
65	65	36plastic, glass, metal, or multi-material, that is used for the containment, protection, handling,
66	66	37delivery, transport, distribution, or presentation of another product that is sold, offered for sale,
67	67	38imported, or distributed in the state.
68	68	39 Packaging does not include:
69	69	40 (1)Medical devices and packaging which are included with products regulated as a
70	70	41drug, medical device, or dietary supplement by the United States Food and Drug Administration
71	71	42under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321 et seq., Sec. 3.2(E) of 21 U.S.
72	72	43Code of Federal Regulations, or the Dietary Supplement Health and Education Act
73	73	44 (2)Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and
74	74	45other products or biological origin, and other covered materials regulated by the United States
75	75	46Department of Agriculture under the Virus, Serum, Toxin Act, 21 U.S.C. 151-159;
76	76	47 (3)Packaging regulated by the Federal Insecticide, Fungicide, and Rodenticide Act, 7
77	77	48U.S.C. Sec. 136 et seq. or other applicable federal law, rule, or regulation; and
78	78	49 (4)Beverage containers subject to a returnable container deposit, if applicable. 4 of 34
79	79	50 (m) “Packaging Reduction Organization” means the non-profit entity or entities
80	80	51contracted by the Department and authorized to collect producer fees, assist producers with
81	81	52compliance with the requirements of this Act, provide technical assistance to producers, and
82	82	53implement the Packaging Reduction and Recycling Program.
83	83	54 (n)“Packaging Reduction and Recycling Program” or “Program” means the program
84	84	55implemented by the Packaging Reduction Organization, and overseen by the Department, to
85	85	56reduce packaging, assess and collect information and payments from producers based on the
86	86	57amount of packaging used by the producer to contain, protect, deliver, present, or distribute their
87	87	58products, in order to pay for the development of packaging reduction programs including, but not
88	88	59limited to, reusable and refillable packaging systems and infrastructure, reimbursements to local
89	89	60government to cover the cost of packaging recycling, and investments in education and outreach.
90	90	61 (o)“Post-Consumer Recycled Material” means new material produced using material
91	91	62resulting from the recovery, separation, collection and reprocessing of material that would
92	92	63otherwise be disposed of or processed as waste and that was originally sold for consumption.
93	93	64“Post-Consumer Recycled Material” does not include post-industrial material or pre-consumer
94	94	65material, or material generated by means of advanced recycling, chemical recycling, combustion,
95	95	66gasification, incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-
96	96	67fuel, or any other chemical or molecular conversion process.
97	97	68 (p)“Producer” means:
98	98	69 (1)A person or entity that manufactures or uses in commercial enterprise a product
99	99	70sold, offered for sale, contained, protected, delivered, presented, or distributed in or using
100	100	71packaging into the state under the brand of the manufacture; 5 of 34
101	101	72 (2)clause (1) does not apply, a person or entity that is not the manufacturer of the
102	102	73product, but is the owner or licensee of a trademark, regardless of whether the trademark is
103	103	74registered, under which a product is sold, offered for sale, contained, protected, delivered,
104	104	75presented, or distributed in or using packaging; or
105	105	76 (3)If clause (1) and (2) do not apply, a person or entity that imports a product that is
106	106	77contained, protected, delivered, or presented in packaging, into the United States or the state for
107	107	78use in commercial enterprise in the state.
108	108	79 “Producer” includes a franchisor of a franchise located in the state but does not include
109	109	80the franchisee operating that franchise.
110	110	81 (q)“Product Line” means a group of related products all marketed under a single
111	111	82brand name that is sold by the same producer to distinguish products from each other for better
112	112	83usability for customers.
113	113	84 (r)“Recyclable” means a product or packaging material a) that can be sorted by
114	114	85entities that process post-consumer materials generated in the state, b) that has a consistent
115	115	86regional market for purchase by end users in the production of new products, and c) which can
116	116	87be recycled with minimal losses of material during processing and manufacturing. Whether a
117	117	88product or packaging type meets these criteria shall be determined by an annual review process
118	118	89as described in Section 5 (c) below.
119	119	90 “Recyclable” does not include material processed through advanced recycling, chemical
120	120	91recycling, combustion, gasification, incineration, pyrolysis, solvolysis, thermal desorption,
121	121	92waste-to-energy, waste-to-fuel, or any other chemical or molecular conversion process. 6 of 34
122	122	93 (s)“Recycled” means the use of discarded packaging materials or products in the
123	123	94production of a new product or packaging in place of virgin materials. Material will not be
124	124	95considered “recycled” if it is used as landfill cover. “Recycled” material does not include
125	125	96contaminants, residues, and other process losses.
126	126	97 (t)“Recycling” means the series of activities by which material is: (a) collected,
127	127	98transported, sorted, and processed; (b) used in industrial feedstocks in place of virgin materials to
128	128	99manufacture new products with minimal loss of material quality and quantity, as determined
129	129	100through the process set forth in Section 5 (c) below.
130	130	101 “Recycling” does not include energy recovery, energy generation, or the creation of
131	131	102hazardous chemicals by any means, including but not limited to advanced recycling, chemical
132	132	103recycling, combustion, gasification, incineration, pyrolysis, solvolysis, thermal desorption,
133	133	104waste-to-energy, waste-to-fuel, or any other chemical or molecular conversion process. It also
134	134	105does not include landfill disposal of discarded material or discarded product component
135	135	106materials, including the use of materials as landfill cover.
136	136	107 (u)“Recycling Rate” means the percentage of any given packaging type that is
137	137	108ultimately recycled. The recycling rate for any packaging material shall be calculated as the total
138	138	109weight of packaging that is recycled in a given year divided by the total weight of packaging
139	139	110generated. Material losses (contaminants and residues) accruing during collection, processing
140	140	111and manufacturing new products do not count as recycled and should not be in the numerator of
141	141	112the equation. 7 of 34
142	142	113 (v)“Reuse” means the return of packaging back into the economic stream for use in
143	143	114the same kind of application intended for the original packaging, without effectuating a change
144	144	115in the original composition of the package, the identity of the product, or the components thereof.
145	145	116 (w)“Reuse and refill system" means a program or set of mechanisms designed to
146	146	117facilitate multiple uses of packaging; Mechanisms may include, but are not limited to, deposits,
147	147	118incentives, curbside collection, collection kiosks, refill stations, dishwashing facilities, and re-
148	148	119distribution networks.
149	149	120 (x)“Reusable or refillable packaging and containers” means packaging material and
150	150	121containers that are specifically designed and manufactured to maintain its shape and structure,
151	151	122and be materially durable for repeated sanitizing, washing, and reuse.
152	152	123 (y)“Toxic substance” means a chemical or chemical class identified by a state
153	153	124agency, federal agency, international intergovernmental agency, accredited research university,
154	154	125or other scientific entity deemed authoritative by the Department on the basis of credible
155	155	126scientific evidence as being one or more of the following:
156	156	127 (1)A chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,
157	157	128immunotoxin, neurotoxicant, or endocrine disruptor.
158	158	129 (2)A chemical or chemical class that is persistent or bioaccumulative.
159	159	130 (3)A chemical or chemical class that may harm the normal development of a fetus or
160	160	131child or cause other developmental toxicity in humans or wildlife.
161	161	132 (4)A chemical or chemical class that may harm organs or cause other systemic
162	162	133toxicity. 8 of 34
163	163	134 (5)A chemical or chemical class that may have adverse air quality impacts, adverse
164	164	135ecological impacts, adverse soil quality impacts, or adverse water quality impacts.
165	165	136 (6)A chemical or chemical class that the Department has determined has equivalent
166	166	137toxicity to the above criteria.
167	167	138 (z)“Unit” means each discrete component of a package or container, including
168	168	139material that is used for the containment, protection, handling, delivery, transport, distribution,
169	169	140and presentation of a product that is sold, offered for sale, imported, or distributed in the state,
170	170	141including through internet transactions.
171	171	142 (aa)“Universal Product Code” or "UPC" means a standard for encoding a set of lines
172	172	143and spaces that can be scanned and interpreted into numbers for product identification purposes.
173	173	144"Universal product code" includes any industry-accepted barcode used for product identification
174	174	145purposes in a manner similar to a UPC, including, but not limited to, a European Article Number.
175	175	146 Section 2: Packaging Reduction and Recycling Program
176	176	147 (a)This Act establishes a Packaging Reduction and Recycling Program by which
177	177	148producers who sell, offer for sale, or distribute products contained, protected, delivered,
178	178	149presented, or distributed in packaging shall pay fees based on the quantity and type of packaging
179	179	150used in the state. The fees shall be used to fund the administration of this program. Producers
180	180	151shall also be required to make changes to the design of their products in order to meet packaging
181	181	152reduction and recycling requirements.
182	182	153 (b)The Department shall contract with a non-profit, 501(c)(3) to act as the Packaging
183	183	154Reduction Organization, which shall collect packaging reduction, generation, and recycling 9 of 34
184	184	155information and fee payments, as described in Section 8, from participating producers. The
185	185	156payments collected from producers shall be deposited into the Packaging Reduction Fund to
186	186	157reimburse local governments for the costs associated with reducing and managing packaging
187	187	158waste, reimburse the Department for their administration of the program, and to support eligible
188	188	159projects that reduce packaging waste by investing in packaging reduction and elimination, reuse
189	189	160and refill systems and programs, recycling infrastructure, and comprehensive multi- media
190	190	161educational programs.
191	191	162 (c)No later than eighteen months after after the effective date of this Act, the
192	192	163Department shall conduct a statewide packaging reduction, reuse, and recycling needs
193	193	164assessment as described in Section 7 of this Act to determine the current state of packaging
194	194	165reuse, recycling, and disposal, and to identify barriers and opportunities to reduce the amount of
195	195	166packaging discarded and disposed of, and to increase the reusability and recyclability of
196	196	167packaging.
197	197	168 (d)The State Comptroller shall conduct an annual audit of the program, including but
198	198	169not limited to: the amount of money received; the amount of money sent to local governments;
199	199	170the amount of money used to invest in reduction, recycling, and reuse programs and services by
200	200	171the Packaging Reduction Organization and any state offices; the amount of discarded packaging
201	201	172generated, reduced, and recycled; any recommendations for improvement of the program. The
202	202	173audit shall be a public document.
203	203	174 Section 3: Producer Responsibilities and Exemptions for Small Producers.
204	204	175 (a)One year after the selection of the Packaging Reduction Organization as required
205	205	176by section 4 of this act, a producer shall not sell, offer for sale, or distribute into the state a 10 of 34
206	206	177product contained, protected, delivered, presented, or distributed in packaging unless the
207	207	178producer is:
208	208	179 (1)Registered with the Packaging Reduction Organization; and
209	209	180 (2)In full compliance with all requirements of this act.
210	210	181 (b)A producer shall annually report to the Packaging Reduction Organization:
211	211	182 (1)The total amount, by unit, of each type of packaging material sold, offered for
212	212	183sale, or distributed for sale into the state by the producer in the prior calendar year;
213	213	184 (2)All information necessary for producer and the Packaging Reduction
214	214	185Organization to meet its obligations required pursuant to section 5 of this act.
215	215	186 (c)A producer shall annually submit a written statement, signed by the chief
216	216	187executive officer, verifying the producer’s compliance with:
217	217	188 (1)The toxic substance reduction requirements of section 10 of this act;
218	218	189 (2)The packaging reduction requirements of section 11 of this act; and
219	219	190 (3)The packaging recycling requirements of section 13 of this act.
220	220	191 (d)A producer is exempt from the requirements and prohibitions of this act in a
221	221	192calendar year in which:
222	222	193 (1)The producer realized less than $1,000,000 in total gross revenue during the prior
223	223	194calendar year; or 11 of 34
224	224	195 (2)The producer sold, offered for sale, or distributed for sale products contained,
225	225	196protected, delivered, presented, or distributed in or using less than one ton of packaging material
226	226	197in total during the prior calendar year.
227	227	198 (e)A producer claiming an exemption pursuant to subsection (d) of this section shall
228	228	199provide the department with sufficient information to demonstrate that the claimant is eligible for
229	229	200an exemption.
230	230	201 Section 4: Selection of the Packaging Reduction Organization
231	231	202 (a)Consistent with the requirements of this Section, within one year after the
232	232	203promulgation of rules as required by Section 14 of this Act, the Department shall select and enter
233	233	204into a contract with a non-profit organization to act as the Packaging Reduction Organization in
234	234	205order to operate the Packaging Reduction and Recycling Program for a period of ten years.
235	235	206 (b)Consistent with applicable competitive bidding requirements under state
236	236	207purchasing laws and following the initial adoption of rules by Department pursuant to Section 14
237	237	208of this Act, the Department shall issue a request for a proposal for the operation of the Packaging
238	238	209Reduction and Recycling Program. The proposals must be required to cover the 10-year
239	239	210operation of the program by the successful bidder and must be required to include, at a
240	240	211minimum, the following information:
241	241	212 (1)A description of how the bidder will administer the Packaging Reduction and
242	242	213Recycling Program, including the mechanisms and processes for providing assistance to
243	243	214producers to comply with the reporting requirements of this Act; 12 of 34
244	244	215 (2)The mechanisms and processes the bidder will use to compile information from
245	245	216participating producers;
246	246	217 (3)How the bidder intends to establish and manage the Packaging Reduction Fund,
247	247	218including, but not limited to, public participation, the staffing the bidder intends to use for
248	248	219management of the fund, and the plan for providing technical support to interested persons
249	249	220regarding use of the funds;
250	250	221 (4)A financial assurance plan that ensures all funds held in the Packaging Reduction
251	251	222Fund are immediately and exclusively forfeited and transferred to or otherwise made
252	252	223immediately available to the Department if the Packaging Reduction Organization contract with
253	253	224the Department is terminated by the Department, or expires;
254	254	225 (5)A proposed budget outlining the anticipated costs of operating the producer
255	255	226responsibility program, including identification of any start-up costs that will not be ongoing and
256	256	227a description of the method by which the bidder intends to determine and collect producer
257	257	228payments during the initial startup period;
258	258	229 (6)A certification that the bidder will not share, except with the Department,
259	259	230information provided to the bidder by a producer that is proprietary information and that is
260	260	231identified by the producer as proprietary information. The certification must include a
261	261	232description of the methods by which the bidder intends to ensure the confidentiality of such
262	262	233information; and
263	263	234 (7)Any other additional information required by the Department. 13 of 34
264	264	235 (c)If, at the close of the competitive bidding process under this subsection, the
265	265	236Department determines that no bidder has submitted, in accordance with this subsection, a
266	266	237proposal that meets the requirements of this subsection the Department shall run the program by
267	267	238itself or a designated state public body.
268	268	239 Section 5: Responsibilities of the Packaging Reduction Organization
269	269	240 (a)The Packaging Reduction Organization shall:
270	270	241 (1)Register all producers;
271	271	242 (2)Collect and compile data from producers as required by Section 3 of this Act;
272	272	243 (3)Collect fees due from producers as required by Section 8 of this Act;
273	273	244 (4)Reimburse the Department and the State Comptroller for the costs associated with
274	274	245conducting the needs assessment required by Sections 7, 8, and 9 of this Act;
275	275	246 (5)Distribute funds to reimburse local governments and private companies for the
276	276	247costs associated with the implementation of reduction and refill and reuse programs, collection,
277	277	248transportation, and recycling of packaging materials as required by Section 9 of this Act;
278	278	249 (6)Make recommendations to the Department regarding investments toward
279	279	250packaging reduction, reuse, and recycling as required by Section 9 of this Act; and
280	280	251 (7)Offer technical support to participating producers, with an emphasis on support to
281	281	252small businesses, to assist them with compliance with the requirements of this Act, including
282	282	253information about procuring affordable alternatives to non-compliant packaging and reducing
283	283	254packaging. 14 of 34
284	284	255 (b)Annually, the Packaging Reduction Organization shall submit a report to the
285	285	256Department that, at a minimum, must include the following information:
286	286	257 (1)Contact information for the Packaging Reduction Organization;
287	287	258 (2)A list of all participating producers, brand(s), and products identified by the
288	288	259Universal Product Code (UPC) that the producer sells, offers for sale, or distributes into the state
289	289	260that are contained, protected, delivered, presented, or distributed in or using packaging;
290	290	261 (3)The total amount, by both weight and number of units of each type of packaging
291	291	262material used to contain, protect, handle, deliver, transport, distribute, or present products sold,
292	292	263offered for sale, or distributed into the state by each individual producer during the prior calendar
293	293	264year;
294	294	265 (4)The total amount, by both weight and number of units, of each type of packaging
295	295	266material used to contain, protect, handle, deliver, transport, distribute, or present products sold,
296	296	267offered for sale, or distributed into the state by all producers during the prior calendar year.
297	297	268 (5)A complete accounting of all payments made to and by the Packaging Reduction
298	298	269Organization during the prior calendar year;
299	299	270 (6)A list of producers believed to be out of compliance with the requirements of this
300	300	271Act, and the reason the Packaging Reduction Organization believes the producer to be out of
301	301	272compliance. Information on non-compliant companies shall be provided to the State Attorney
302	302	273General’s Office in a timely fashion and for possible enforcement action by that office. 15 of 34
303	303	274 (7)A description of the educational and outreach efforts made by the Packaging
304	304	275Reduction Organization in the prior calendar year, and how those efforts were designed to reduce
305	305	276packaging waste, and increase reuse and recycling of packaging materials.
306	306	277 (8)An assessment of whether the fee structure adopted by the Department pursuant to
307	307	278Section 8 of this Act has been effective in incentivizing improvements to the design of packaging
308	308	279material, including actual reduction of packaging, increases in reusable and refillable packaging,
309	309	280recycling rates for packaging materials, and decreases in the amount of packaging;
310	310	281 (9)A description of the reimbursements and expenditures made pursuant to Section 9
311	311	282of this Act; and
312	312	283 (10)Any additional information required by the Department.
313	313	284 (c)The Packaging Reduction Organization shall conduct an annual review process to
314	314	285determine whether products and packaging materials are recyclable. This review shall be
315	315	286conducted in consultation with representatives of end markets, including recycled commodities
316	316	287brokers and manufacturers who purchase post-consumer material for use in manufacturing new
317	317	288products. For the purposes of calculating producer payments and municipal reimbursements in
318	318	289accordance with this Act, this annual process must include a transitional period between the date
319	319	290the determination is finalized and the date it goes into effect.
320	320	291 (d)The Packaging Reduction Organization shall conduct public outreach and provide
321	321	292consumers with educational and informational materials related to reducing the amount of
322	322	293packaging discarded, recycled, and disposed of in the state.
323	323	294 (1)The outreach and education shall, at a minimum, include: 16 of 34
324	324	295 i. A description of the environmental, social, economic, and environmental justice
325	325	296impacts associated with improper disposal of packaging materials;
326	326	297 ii.At least 3 public hearings in geographically diverse parts of the state each year, to
327	327	298solicit public input on the implementation and effectiveness of the law and suggested
328	328	299improvements.
329	329	300 iii.Information regarding the management of discarded packaging including reuse,
330	330	301recycling, composting, and disposal by landfilling and incineration;
331	331	302 iv.The location and availability of curbside and drop-off collection opportunities for
332	332	303packaging waste, including deposit and take-back programs;
333	333	304 v. description of the environmental, social, economic, and environmental justice
334	334	305impacts associated with failure to reuse or recycle packaging materials;
335	335	306 vi.Information regarding municipal reimbursement for the costs associated with
336	336	307packaging reuse, recycling, and disposal; and
337	337	308 vii.Any other information required by the Department.
338	338	309 (e)The public outreach and education conducted by the Packaging Reduction
339	339	310Organization shall:
340	340	311 i. Utilize all available forms of media, including, but not limited to, television,
341	341	312radio, print, electronic, and web-based media to provide information directly to residents in the
342	342	313state, in multiple languages; 17 of 34
343	343	314 ii.Be coordinated with the various local governments in the state to incorporate
344	344	315electronic, print, web-based and social media elements that individual local governments may
345	345	316elect to use, at their discretion, to provide education directly to their residents;
346	346	317 iii.Be provided to producers for inclusion on their packaging’s label to inform
347	347	318consumers about the methods to responsibly reuse, recycle, or dispose of the packaging; and
348	348	319 iv.be coordinated with other similar public outreach and education programs in the
349	349	320state as necessary to avoid consumer confusion and facilitate the consolidation of available
350	350	321resources.
351	351	322 (f)In addition to engaging in the public education and outreach required by
352	352	323subsection (c) of this Section, the Packaging Reduction Organization shall be authorized to
353	353	324provide producers and retailers with educational materials related to the responsible reduction,
354	354	325reuse, recycling, or disposal of discarded packaging. The educational and informational materials
355	355	326provided to the retailer under this subsection may include, but need not be limited to, printed
356	356	327materials, signage, templates of materials that can be reproduced by retailers and provided
357	357	328thereby to consumers at the time of a product’s purchase, and advertising materials that promote
358	358	329and encourage consumers to properly reuse, recycle, or dispose of packaging materials.
359	359	330 (g)The Packaging Reduction Organization shall not spend funds on lobbying federal,
360	360	331state, or local governments or campaign contributions to any candidates running for office.
361	361	332 Section 6: Responsibilities of the Department 18 of 34
362	362	333 (a)Beginning one year after the selection of the Packaging Reduction Organization
363	363	334pursuant to Section 4 of this Act, and annually thereafter, the Department shall work with the
364	364	335Packaging Reduction Organization to:
365	365	336 (1)calculate the amount of packaging that was generated during the prior calendar
366	366	337year;
367	367	338 (2)calculate the recycling rate for all packaging during the prior calendar year;
368	368	339 (3)calculate the recycling rate for each packaging material type during the prior
369	369	340calendar year; and
370	370	341 (4)develop a list of producers believed to be out of compliance with the requirements
371	371	342of this Act.
372	372	343 (b)In the event that the Department determines that the Packaging Reduction
373	373	344Organization no longer meets the requirements of this Act, or fails to implement and administer
374	374	345the requirements of this Act in a manner that effectuates the purposes of this Act, the Department
375	375	346shall revoke its approval of the Packaging Reduction Organization, and shall select a new
376	376	347Packaging Reduction Organization to replace it, or, in the alternative, may elect to operate the
377	377	348program itself.
378	378	349 (c)The Department or state Attorney General shall take enforcement action against
379	379	350all non-compliant producers in accordance with Section 15 of this Act.
380	380	351 Section 7: Statewide Packaging Reduction, Reuse, and Recycling Needs Assessment.
381	381	352 (a)Consistent with applicable competitive bidding requirements, within six months
382	382	353of the passage of this act, and every five years thereafter, the Department shall issue a request for 19 of 34
383	383	354proposals to conduct a statewide packaging reduction, reuse, and recycling needs assessment,
384	384	355hereinafter “needs assessment” to identify barrier and opportunities for reducing, reusing, and
385	385	356recycling packaging materials. The proposals must include, at a minimum, a description of how
386	386	357the bidder will conduct the needs assessment to evaluate the following:
387	387	358 (1)The current recycling rate for each type of packaging material;
388	388	359 (2)The amount, by weight and material type, of packaging recycled at each recycling
389	389	360facility that accepts discarded packaging generated in the state;
390	390	361 (3)The processing capacity, market conditions, and opportunities in the state and
391	391	362regionally for recyclable materials;
392	392	363 (4)The net cost of end-of-life management of discarded packaging in the state,
393	393	364including the cost associated with the collection, transportation, sortation, recycling, landfilling,
394	394	365or incineration of discarded packaging;
395	395	366 (5)The availability of opportunities in the recycling, and reuse system for minority-
396	396	367and-women-owned businesses;
397	397	368 (6)Current barriers affecting recycling access and availability in the state;
398	398	369 (7)Current barriers to the marketability of recyclable materials generated in the state;
399	399	370 (8)Opportunities for the creation of packaging reuse and refill programs in the state;
400	400	371 (9)Opportunities for the improvement of packaging recycling in the state, including
401	401	372the development of end markets for recycled packaging materials. 20 of 34
402	402	373 (10)Current barriers affecting the creation and implementation of packaging reuse and
403	403	374refill programs; and
404	404	375 (11)Consumer education needs in the state with respect to packaging waste reduction,
405	405	376recycling, reducing contamination in recycling, and reuse and refill systems for packaging.
406	406	377 (b)After reviewing proposals, the Department shall select an applicant to perform the
407	407	378needs assessment. If, at the close of the competitive bidding process, the Department determines
408	408	379that no applicant can successfully perform the needs assessment, the Department must perform
409	409	380the needs assessment itself, or designate another state office to do it.
410	410	381 (c)The cost incurred by the Department or its state designee associated with
411	411	382conducting the needs assessment shall be paid for by funds from the Packaging Reduction and
412	412	383Recycling Fund.
413	413	384 (d)The Department shall report the results of the study to the public, the media, state
414	414	385legislature, the Governor, the State Comptroller and the Attorney General, who are all directed to
415	415	386coordinate enforcement of this law.
416	416	387 Section 8: Assessment of Fees
417	417	388 (a)The Department shall promulgate regulations setting forth the manner in which
418	418	389producer payments on packaging materials must be calculated and assessed.
419	419	390 (b)The payments shall be calculated based on the total amount, by weight, of each
420	420	391type of packaging material used to contain, protect, deliver, present, or distribute a product sold,
421	421	392offered for sale, or distributed into the state by the producer in the prior calendar year. 21 of 34
422	422	393 (c)The list of packaging material types for which there is a specific fee must include,
423	423	394at a minimum, the following material types:
424	424	395 (1)Polyethylene terephthalate (PET or PETE);
425	425	396 (2)High density polyethylene (HDPE);
426	426	397 (3)Polyvinyl Chloride (PVC)
427	427	398 (4)Low density polyethylene (LDPE)
428	428	399 (5)Polypropylene (PP)
429	429	400 (6)Polystyrene (PS) including expanded polystyrene
430	430	401 (7)Other plastic resin types not specifically identified here;
431	431	402 (8)Bio-plastics;
432	432	403 (9)Paper;
433	433	404 (10)Cardboard;
434	434	405 (11)Wood;
435	435	406 (12)Glass;
436	436	407 (13)Bi-metal, steel and other ferrous metals;
437	437	408 (14)Aluminum and other non-ferrous metals; and
438	438	409 (15)Mixed materials including laminates and packaging containing more than one of
439	439	410the above materials 22 of 34
440	440	411 (16)Any other material used for consumer packaging.
441	441	412 (d)The fees shall be designed to cover, at a minimum, the total cost associated with:
442	442	413 (1)The collection transportation, and management of each type of packaging material
443	443	414used to contain, protect, deliver, present, or distribute products sold, offered for sale, or
444	444	415distributed into the state by all producers;
445	445	416 (2)The Department’s and other state agencies administration of this Act;
446	446	417 (3)The Packaging Reduction Organization’s administration of the Packaging
447	447	418Reduction and Recycling Program;
448	448	419 (4)The cost associated with the development of the statewide packaging reduction,
449	449	420reuse, and recycling needs assessment pursuant to Section 7 of this Act; and
450	450	421 (5)Any other factors determined by the Department.
451	451	422 (e)The fees adopted under this Section must delineate criteria to be used to initially
452	452	423establish and subsequently adjust producer payments in a manner that incentivizes:
453	453	424 (1)a reduction in the total packaging as measured by weight used by producers, and
454	454	425discarded by consumers, businesses, institutions, and other users. Weight reductions shall not be
455	455	426achieved by substituting plastic for other materials types.
456	456	427 (2)an increase in the proportion of a producer’s total packaging that is managed
457	457	428within a reuse and refill system;
458	458	429 (3)an increase in the proportion of a producer’s total packaging that is deemed
459	459	430recyclable as determined by an annual review process as described in Section 5 (c) of this Act. 23 of 34
460	460	431 (4)an increase in the proportion of a producer’s total packaging that is ultimately
461	461	432recycled;
462	462	433 (5)a reduction in toxic components in packaging materials; and
463	463	434 (6)a reduction in litter from packaging materials.
464	464	435 (f)There shall be no fee assessed on packaging that is designed for reuse and refill
465	465	436and contained within a reuse or refill system.
466	466	437 (g)The Department shall update and revise the fees every three years.
467	467	438 Section 9: Packaging Reduction Fund
468	468	439 (a)There is hereby established, a separate, non-lapsing, interest-bearing fund to be
469	469	440known as the Packaging Reduction Fund, which will be managed by the Packaging Reduction
470	470	441Organization with oversight from the Department.
471	471	442 (b)The Packaging Reduction Organization shall deposit into the fund all payments
472	472	443received from producers in accordance with Section 8 of this Act, and all penalties collected
473	473	444pursuant to Section 14 of this Act.
474	474	445 (c)Beginning one year after the first payment of fees by producers pursuant to
475	475	446Section 8 of this Act, and annually thereafter, the Packaging Reduction Organization shall:
476	476	447 (1)Retain a portion of the fees deposited into the Packaging Reduction Fund to cover
477	477	448the costs associated with its administration of the Packaging Reduction and Recycling Program.
478	478	449 (2)Reimburse, the Department, the Office of the Inspector General, the Office of
479	479	450Attorney General, the State Comptroller and all other state entities for the costs associated with 24 of 34
480	480	451administering and enforcing the requirements of this Act and its implementation regulations.
481	481	452This reimbursement shall include costs associated with performing, revising, and updating the
482	482	453Statewide Packaging Reduction, Reuse, and Recycling Needs Assessment required by Section 7
483	483	454of this Act. This reimbursement shall also cover any costs incurred by the Department in
484	484	455adopting rules, revising rules, and administering and enforcing the requirements of this Act.
485	485	456 (d)Beginning one year after the first payments of fees by producers pursuant to
486	486	457Section 8 of this Act, and annually thereafter, the Packaging Reduction Organization shall
487	487	458distribute money from the Packaging Reduction Fund to reimburse local governments for the
488	488	459costs incurred for the management, reduction, and recycling of packaging waste, so long as the
489	489	460local government provides recycling services to all residents, businesses, schools, and
490	490	461institutions in their jurisdiction. Local governments that contract with private haulers and
491	491	462recyclers to handle the management, reduction, and recycling of packaging waste are eligible for
492	492	463reimbursement, so long as the private hauler or recycler provides recycling services to all
493	493	464residents, businesses, schools, and institutions within the local government’s jurisdiction.
494	494	465Nothing in this subsection, shall be interpreted as allowing for the reimbursement of costs
495	495	466associated with the disposal of packaging.
496	496	467 (e)Beginning one year after the first payment of fees by producers pursuant to
497	497	468Section 8 of this Act, and annually thereafter, the Packaging Reduction Organization shall make
498	498	469all remaining funds following the reimbursement and distributions required by subsections (c)
499	499	470and (d) of this Section, available for projects and programs that will help achieve the packaging
500	500	471reduction requirements of Section 10 of this Act, and the packaging recycling requirements of
501	501	472Section 11 of this Act. Annually, the money allocated for projects and programs under this 25 of 34
502	502	473subsection shall be at least 50% of the money provided to local government pursuant to
503	503	474subsection (d) of this section.
504	504	475 (1)Funds may be used for investment in collection systems, transportation systems,
505	505	476reuse systems, washing systems, redistribution systems, technology for tracking and data
506	506	477collection, capital expenditures on new and emerging technology focused on reusable and
507	507	478refillable packaging, as well as equipment, and facilities, and other projects determined by the
508	508	479Department to facilitate the goals and objectives of this Act.
509	509	480 (2)Funds may also be used for investment in public outreach and education in ways
510	510	481that increase access and participation in packaging reduction, reuse, refill, and recycling systems
511	511	482throughout the state.
512	512	483 (3)The Packaging Reduction Organization shall prioritize investments for projects
513	513	484and programs that will directly benefit environmental justice communities, including, but not
514	514	485limited to, communities that are home to a landfill, incinerator, transfer station, or waste-to-
515	515	486energy facility.
516	516	487 (4)Any investments made pursuant to this subsection must be approved by the
517	517	488Department. The Department shall approve or deny proposed investments within 90 days of
518	518	489receipt of a proposal from the Packaging Reduction Organization. The investments may be
519	519	490approved, at the discretion of the Department, so long as the proposed investment will, at a
520	520	491minimum:
521	521	492 i. Increase the transition of packaging from non-reusable to reduced, reusable or
522	522	493refillable packaging. 26 of 34
523	523	494 ii.Increase access to reuse and refill infrastructure in the state.
524	524	495 iii.Increase the capacity of reuse and refill infrastructure in the state.
525	525	496 iv.Provide reuse and refill instructions that are, to the extent practicable, consistent
526	526	497statewide, easy to understand, translated into various commonly used languages, and easily
527	527	498accessible.
528	528	499 v. Provide for outreach and education that are coordinated across programs or
529	529	500regions to avoid confusion for residents, and developed in consultation with local government
530	530	501and the public.
531	531	502 Section 10: Packaging Reduction Requirements
532	532	503 (a)Each individual producer is required to meet the packaging reduction
533	533	504requirements contained in this section.
534	534	505 (1)Beginning two years after a producer first registers with the Packaging Reduction
535	535	506Organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,
536	536	507present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by
537	537	50810% by weight.
538	538	509 (2)Beginning four years after a producer first registers with the Packaging Reduction
539	539	510Organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,
540	540	511present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by
541	541	51220% by weight
542	542	513 (3)Beginning six years after a producer first registers with the Packaging Reduction
543	543	514Organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 27 of 34
544	544	515present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by
545	545	51630% by weight.
546	546	517 (4)Beginning eight years after a producer first registers with the Packaging
547	547	518Reduction Organization, a producer shall reduce the amount of packaging used to contain,
548	548	519protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale
549	549	520into the state, by 40% by weight.
550	550	521 (5)Beginning ten years after a producer first registers with the Packaging Reduction
551	551	522Organization, a producer shall reduce the amount of packaging used to contain, protect, deliver,
552	552	523present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by
553	553	52450% by weight.
554	554	525 (b)The reductions required by this subsection shall be measured against the total
555	555	526amount of packaging the producer used to contain, protect, deliver, present, or distribute the
556	556	527products they sold, offered for sale, or distributed for sale, during the first year they registered
557	557	528with the Packaging Reduction Organization.
558	558	529 (c)The reductions required by this subsection may be achieved by using the
559	559	530following strategies:
560	560	531 (1)Elimination of packaging components;
561	561	532 (2)Reduction of packaging components;
562	562	533 (3)Using reuse and refill systems; and
563	563	534 (4)Packaging rightsizing, lightweighting, and optimization. 28 of 34
564	564	535 (d)The reductions required by this subsection shall not be achieved by substituting
565	565	536plastic for other materials
566	566	537 (e)In the case of a producer that enters the market with 50% or more by weight of its
567	567	538packaging being reusable and contained within a reuse and refill system, that producer may
568	568	539apply to the Department for a waiver from the packaging reduction requirements.
569	569	540 Section 11: Packaging Recycling Requirements
570	570	541 (a)Each individual producer is required to meet the packaging recycling
571	571	542requirements contained in this Section.
572	572	543 (b)A producer is required to ensure that the packaging used to contain, protect,
573	573	544deliver, present, or distribute the products they sell, offer for sale, or distribute into the state, is
574	574	545made of a material that meets the following recycling rates:
575	575	546 (1)Not less than 30% within five years after the enactment of this Act;
576	576	547 (2)Not less than 50% within eight years after the enactment of this Act; and
577	577	548 (3)Not less than 70% within twelve years after the enactment of this Act.
578	578	549 (c)The requirements of subsection (b) of this Section shall not apply to reusable or
579	579	550refillable packaging or containers.
580	580	551 Section 12: Toxic Reduction Requirements
581	581	552 (a)Beginning two years after the promulgation of rules pursuant to Section 14 of this
582	582	553Act, no person or entity may sell, offer for sale, or distributed into the state any packaging
583	583	554containing the following toxic substance: 29 of 34
584	584	555 (1)Ortho-phthalates;
585	585	556 (2)Bisphenols;
586	586	557 (3)Per- and polyfluoroalkyl substances (PFAS);
587	587	558 (4)Lead and lead compounds;
588	588	559 (5)Hexavalent chromium and compounds;
589	589	560 (6)Cadmium and cadmium compounds;
590	590	561 (7)Mercury and mercury compounds;
591	591	562 (8)Benzophenone and its derivatives;
592	592	563 (9)Halogenated flame retardants;
593	593	564 (10)Perchlorate;
594	594	565 (11)Formaldehyde;
595	595	566 (12)Toluene;
596	596	567 (13)Antimony and compounds; and
597	597	568 (14)UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol).
598	598	569 (b)Beginning two years after the promulgation of rules pursuant to Section 14 of this
599	599	570Act, no person or entity shall sell, offer for sale, or distributed for use in this state any packaging
600	600	571containing:
601	601	572 (1)Polyvinyl chloride; 30 of 34
602	602	573 (2)Polystyrene; or
603	603	574 (3)Polycarbonate.
604	604	575 (c)Beginning three years after the promulgation of rules pursuant to Section 14 of
605	605	576this Act, and every three years thereafter, the Department shall designate at least ten additional
606	606	577toxic substances or families of toxic substances that may no longer be sold, offered for sale,
607	607	578distributed for sale, or distributed for use in packaging in this state unless it determines there are
608	608	579not ten chemicals that meet the definition of toxic substances. If the Department determines there
609	609	580are not ten toxic substances that meet such a definition, it shall publish a detailed statement of its
610	610	581findings and conclusions supporting such determination.
611	611	582 (d)Within 180 days of designating a toxic substance, the Department shall adopt
612	612	583regulations to prohibit the newly designated toxic substance in packaging, with an effective date
613	613	584no later than two years after such designation.
614	614	585 (e)Any producer that violates this Section shall be subject to a fine for each violation
615	615	586not to exceed fifty thousand dollars per violation. For the purposes of this Section, each product
616	616	587line that is sold, offered for sale, or distributed to consumers, via retail commerce, in the state,
617	617	588including through an internet transaction violation shall be considered a violation.
618	618	589 Section 13: Establishment of the Office of Inspector General
619	619	590 (a)The Department shall establish a standalone independent Office of Inspector
620	620	591General within the Department. The Office of Inspector General shall evaluate the programs
621	621	592created by this Act on an annual basis to ensure it is properly functioning, and the producers are
622	622	593in compliance with the requirements of this Act. 31 of 34
623	623	594 (b)The Office of Inspector General shall have the authority to investigate the
624	624	595compliance of producers with all provisions of this Act and to bring enforcement violations
625	625	596against non-compliant producers.
626	626	597 Section 14: Rulemaking
627	627	598 (a)The Department may promulgate rules as necessary to implement, administer, and
628	628	599enforce this Act. All rules developed under the Act shall be promulgated no later than one year
629	629	600after the completion of the completion of the Statewide Packaging Reduction, Reuse, and
630	630	601Recycling Needs Assessment as required by Section 7 of this Act.
631	631	602 (b)The Department shall solicit input from the public of any draft rules to implement
632	632	603this Section, solicit public comment on draft rules for a period of at least 90 days, and hold a
633	633	604public hearing on the draft rules.
634	634	605 (c)The rules adopted by the Department pursuant to this Section must include, at a
635	635	606minimum:
636	636	607 (1)A process for contracting with the Packaging Reduction Organization pursuant to
637	637	608the requirements of Section 4 of this Act;
638	638	609 (2)A process for annually determining a schedule of producer fees and payment
639	639	610collections pursuant to the requirements of Section 7 of this Act;
640	640	611 (3)A process for collecting all necessary information to ensure producer compliance
641	641	612with the requirements of this Act;
642	642	613 (4)A process for evaluating whether a producer is in compliance with the packaging
643	643	614reduction requirements of Section 10 of this Act; 32 of 34
644	644	615 (5)A process for evaluating whether a producer is in compliance with the packaging
645	645	616recycling requirements of Section 11 of this Act;
646	646	617 (6)A process for evaluating whether a producer is in compliance with the toxic
647	647	618packaging reduction requirements of Section 12 of this Act;
648	648	619 (7)A process for determining on an annual basis the types of packaging material that
649	649	620are recyclable;
650	650	621 (8)A process for the assessment of the Packaging Reduction Organization and the
651	651	622Packaging Reduction and Recycling Program;
652	652	623 (9)Requirements for the Packaging Reduction Organization to conduct a
653	653	624representative audit of recyclable material processed and sold by facilities that process recyclable
654	654	625material generated in the state and of municipal solid waste disposed of in the state;
655	655	626 (10)A process for establishing and enforcing penalties for all violations of the
656	656	627requirements of this Act;
657	657	628 (11)A process for determining new toxic substances in packaging pursuant to Section
658	658	62912 of this Act;
659	659	630 (12)A process for how the Department will oversee and monitor the Packaging
660	660	631Reduction Organization’s management of the Packaging Reduction Fund, including a process for
661	661	632submitting and reviewing proposals from the Packaging Reduction Organization regarding
662	662	633investments in projects and programs that will help achieve the packaging reduction
663	663	634requirements of Section 10 of this Act, and the packaging recycling requirements of Section 11
664	664	635of this Act; and 33 of 34
665	665	636 (13)A process for determining whether information is proprietary information and
666	666	637therefore must be handled as confidential information.
667	667	638 Section 15: Penalties and Enforcement
668	668	639 (a)Failure to comply with the requirements of this Act shall subject the Packaging
669	669	640Reduction Organization or an individual producer to penalties for violations. The Department,
670	670	641Office of Inspector General, and the Office of the Attorney General, may conduct investigations,
671	671	642including inspecting operations, facilities, and records of producers and the Packaging Reduction
672	672	643Organization, and by performing audits of producers and the Packaging Reduction Organization,
673	673	644to determine whether entities are complying with the requirements of this Act.
674	674	645 (b)The Department, the Office of Inspector General, and the Office of the Attorney
675	675	646General, shall notify the Packaging Reduction Organization and producers of any conduct or
676	676	647practice that does not comply with the requirements of this Act and of any inconsistencies
677	677	648identified in an audit.
678	678	649 (c)The Department, the Office of Inspector General, and the Office of the Attorney
679	679	650General, may issue a notice of violation to, and impose an administrative civil penalty not to
680	680	651exceed one hundred thousand dollars ($100,000) per day per violation on any entity not in
681	681	652compliance with this chapter or any of the regulations the Department adopts to implement this
682	682	653Act. For the purposes of this Section, each product line that is sold, offered for sale, or
683	683	654distributed to consumers, via retail commerce, in the state, including through an internet
684	684	655transaction violation shall be considered a violation.
685	685	656 (d)Any funds collected under this Section shall be deposited into the Packaging
686	686	657Reduction Fund. 34 of 34
687	687	658 Section 16: Enforcement by Citizen Suit
688	688	659 (a)In accordance with [insert the applicable citizen suit provisions of the State], any
689	689	660ten citizens of the State may commence a civil action on their behalf against any person or entity,
690	690	661including the State, the Department, the Packaging Reduction Organization, an individual or
691	691	662group of Producers, and the office of Inspector general, who are alleged to be in violation of the
692	692	663requirements of this Act or its implementing regulations.
693	693	664 (b)No action may commence under this Section unless the plaintiffs have given
694	694	665[insert notice requirements of the applicable State in terms of days, i.e. 60 days] notice of its
695	695	666intention to file a claim against the alleged noncompliant party.
696	696	667 (c)In any action brought under this Section, the Department, if not a party, may
697	697	668intervene as a matter of right.