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