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SENATE DOCKET, NO. 1691 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 471
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Sal N. DiDomenico
_________________
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 reduce waste and recycling costs in the commonwealth.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :Sal N. DiDomenicoMiddlesex and SuffolkJason M. LewisFifth Middlesex1/31/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/2/2023John J. CroninWorcester and Middlesex2/7/2023James K. Hawkins2nd Bristol2/8/2023Jack Patrick Lewis7th Middlesex2/8/2023Patrick Joseph Kearney4th Plymouth2/10/2023Mathew J. Muratore1st Plymouth2/14/2023Vanna Howard17th Middlesex2/17/2023James B. EldridgeMiddlesex and Worcester2/21/2023Michael F. RushNorfolk and Suffolk2/23/2023 1 of 33
SENATE DOCKET, NO. 1691 FILED ON: 1/19/2023
SENATE . . . . . . . . . . . . . . No. 471
By Mr. DiDomenico, a petition (accompanied by bill, Senate, No. 471) of Sal N. DiDomenico,
Jason M. Lewis, Patrick M. O'Connor, John J. Cronin and other members of the General Court
for legislation to save recycling costs in the commonwealth. Environment and Natural
Resources.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 517 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to reduce waste and 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. Chapter 94 of the General Laws, as appearing in the 2020 Official Edition,
2is hereby amended by inserting after section 329 the following sections:-
3 Section 330. Definitions applicable to Secs. 330 to 345. In section three hundred and to
4section three hundred and forty-five, inclusive, the following terms shall, unless the context
5clearly appears otherwise, have the following meanings:
6 "Alternative collection program”, a program for the management of packaging material
7that is operated by an individual producer or group of producers and that has been approved by
8the department in accordance with section 338. 2 of 33
9 “Brand”, a name, symbol, word or mark that identifies a product, rather than its
10components, and attributes the product to the owner of the brand.
11 “Collector”, a municipality, private hauler, association, or other entity that collects solid
12waste from covered entities.
13 “Committee”, the advisory committee as established by the department pursuant to
14section 342.
15 “Convenience”, access to recycling is available wherever access to trash disposal is
16provided.
17 “Covered entities”, residences, schools, municipal buildings, public spaces, small
18businesses and hospitality locations.
19 "Covered materials”, any packaging material or paper products, regardless of
20recyclability or compostability, that are sold, offered for sale, or distributed to consumers in the
21state, including through an internet transaction.
22 “Covered material category”, the categories of covered materials as defined by the
23department pursuant to paragraph (d) of section 342.
24 “Department”, the department of environmental protection.
25 “Hospitality location”, a place that provides food and beverage service, overnight guest
26accommodation, entertainment or recreation.
27 "Franchisee", a person that is granted a license by a franchisor to use the franchisor's
28trade name, service mark or related characteristic and to share in the franchisor's proprietary 3 of 33
29knowledge or processes pursuant to an oral or written arrangement for a definite or indefinite
30period.
31 "Franchisor", a person that grants to a franchisee a license to use the person's trade name,
32service mark or related characteristic and to share in the person's proprietary knowledge or
33processes pursuant to an oral or written arrangement for a definite or indefinite period.
34 “Material recovery facility” or “facility”, a facility that receives, processes, and sells or
35otherwise distributes post-consumer materials for recycling.
36 “Municipal solid waste”, any residential or commercial solid waste, as defined in 310
37CMR 19.006.
38 “Municipality”, a city, town, or regional association acting on behalf of a city or town.
39 “Needs assessment”, a statewide evaluation of current funding needs affecting recycling
40access and convenience; the capacity and costs associated with the collection and transportation
41of recyclable material; the processing capacity, market conditions, and opportunities in the state
42and regionally for recyclable material; infrastructure improvement and consumer education
43needs and costs with respect to recycling processing, access, convenience, environmental justice
44and reducing contamination in collected recyclable material and in outgoing bales.
45 “Newspaper”, a paper that is printed and distributed daily or weekly and that primarily
46contains news, articles of opinion, and non-advertisement features, with less than half of space
47devoted to paid content.
48 "Packaging material", any part of a package or container, including material that is used
49for the containment, protection, handling, delivery, and presentation of a product that is sold, 4 of 33
50offered for sale, imported, or distributed in the state, including through internet transactions
51"Packaging material" does not include:
52 (a) A discrete type of material, or a category of material that includes multiple discrete
53types of material, intended to be used for the long-term storage or protection of a durable product
54and that can be expected to be usable for that purpose for a period of at least 5 years; or
55 (b) A discrete type of material, or a category of material that includes multiple discrete
56types of material, that is a beverage container subject to a redeemable deposit, as defined in
57section 321 of this chapter.
58 “Paper products”, paper that can or has been printed on including flyers, brochures,
59booklets, catalogs, greeting cards, telephone directories, magazines, paper used for copying,
60writing or any other general use. Paper products does not include:
61 (a) paper products that, by virtue of their anticipated use, could become unsafe or
62unsanitary to recycle; or
63 (b) any literary, text, reference, or other bound book; or
64 ( c) newspapers
65 "Producer", with respect to a covered material, means a party that has legal ownership of
66the brand of a product for sale, use, or distribution in the state, including online retailers who sell
67into the state, that utilizes covered material. For packaging, responsible parties shall be
68determined based on the following criteria: (a) A person who manufactures a product under the
69manufacturer’s own brand that uses covered material; (b) If subparagraph (a) does not apply, a
70person who is not the manufacturer of a product under the manufacturer’s own brand that uses 5 of 33
71covered material, but is the owner or licensee of a trademark under which a covered material is
72used in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not
73the trademark is registered; or (c) If subparagraphs (a) and (b) do not apply, a person who
74imports the product that uses the covered material into the state for use in a commercial
75enterprise, sale, offer for sale or distribution in the commonwealth.
76 (d) the definition of “producer” includes a franchisor of a franchise located in the
77commonwealth but does not include the franchisee operating that franchise.
78 (e). the definition of “producer” does not include a nonprofit organization exempt from
79taxation under the United States Internal Revenue Code, Section 501(c)(3), and any entity
80exempted from the program under section 331 of this chapter.
81 "Producer responsibility fund" or "fund", a privately held account established and
82managed by the stewardship organization pursuant to section 337.
83 "Producer responsibility organization" or "organization", a not-for-profit entity formed by
84all producers, whether directly or by trade organizations for subgroups of producers, and
85contracted by the department under section 332 to act as an agent on behalf of each producer to
86develop and implement a producer responsibility plan.
87 "Producer responsibility plan" or “plan”, a detailed plan that describes the manner in
88which producers shall comply with the requirements of sections 330 to 345 and all regulations
89promulgated by the department pursuant to sections 330 to 345.
90 "Packaging and paper products program" or “program”, the program implemented under
91section. 330 to 345 by the organization to assess and collect payments from producers based on 6 of 33
92the type and weight of covered material sold, offered for sale or distributed for sale in the
93commonwealth by each producer and to reimburse participating collectors for certain incurred
94recycling costs.
95 “Readily-recycled”, with respect to a covered material, that the type of packaging
96material or paper product, as annually determined by the department:
97 (a) can be sorted by entities that process recyclable material generated in the
98commonwealth; and
99 (b) has a consistent market for purchase, as based on data from the prior two (2) calendar
100years. For the purposes of this paragraph, "consistent market for purchase" means, with respect
101to a type of covered material, that entities processing recyclable material are willing to purchase
102full bales of that type of fully sorted covered material in quantities equal to or in excess of the
103supply of that fully sorted covered material.
104 “Readily-recycled”, does not include covered material categories or types that facilities
105accept in low quantities or sort out of material during additional processing steps; if facilities
106cannot aggregate or sell a full bale of a specific covered material category or type due to a lack
107of market or inability to feasibly separate, that covered material type is not readily-recyclable.
108Covered material categories or types shall not be considered readily-recyclable, recyclable,
109compostable, or reusable if they contain toxic substances as defined in this section.
110 "Recycling", to separate, dismantle or process the materials, components or commodities
111in covered materials for the purpose of preparing the materials, components or commodities for
112use or reuse in new products or components. "Recycling" does not include energy recovery or
113energy generation by means of combustion; pyrolysis, gasification and any other high-heat 7 of 33
114chemical conversion processes; or landfill disposal of discarded covered material or discarded
115product component materials.
116 “Residential”, of a place where residents live, stay, or are cared for over a period of more
117than two full days and nights, including but not limited to single and multifamily homes,
118apartments, condominiums, congregate housing, public housing, mobile home parks,
119dormitories, assisted living residences, nursing homes, hospitals, camps and hotels.
120 “School”, a public, private, or charter school, including pre-schools, K-12 schools,
121colleges, and universities.
122 “Small business”, a business that utilizes less than 1- 40 cubic yard dumpster or
123equivalent per week for its combined waste and recycling.
124 “Sustainable packaging trust” or “trust”, an expendable trust under control of the
125department, created under Chapter 10 section 35EEE of the Massachusetts General Laws, for the
126purpose of collecting funds for department administration of the packaging and paper products
127program or an alternative collection program, and for collecting fines related to the packaging
128and paper products program or an alternative collection program.
129 "Toxic substance", with respect to covered material, means a chemical or chemical
130class identified by a state agency, federal agency, international intergovernmental agency,
131accredited research university, or other scientific evidence deemed authoritative by the
132department on the basis of credible scientific evidence as being one or more of the following:
133 (a) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,
134immunotoxicant, neurotoxicant, endocrine disruptor. 8 of 33
135 (b) a chemical or chemical class that is persistent or bioaccumulative.
136 (c) a chemical or chemical class that may harm the normal development of a fetus or
137child or cause other developmental toxicity in humans or wildlife.
138 (d) a chemical or chemical class that may harm organs or cause other systemic toxicity.
139 (e) a chemical or chemical class that may have adverse air quality impacts, adverse
140ecological impacts, adverse soil quality impacts, or adverse water quality impacts.
141 (f) the department has determined a chemical or chemical class has equivalent toxicity to
142the above criteria.
143 “Toxic substance”, for the purposes of secs. 330 to 345, includes the following chemicals
144or chemical classes: Per and Poly Fluor Alkyl Substances (PFAS); an ortho phthalate; a
145bisphenol compound; a halogenated, organophosphorus, organonitrogen, or nanoscale flame
146retardant chemical; Lead; Cadmium; Mercury; Hexavalent Chromium; and Formaldehyde.
147 “Waste disposal bans”, has the same meaning as in 310 CMR 19.017.
148 Section 331. Producer exemptions. Notwithstanding any provision of sections 330 to
149345 to the contrary, a producer is exempt from the requirements and prohibitions of sections 330
150to 345 in any calendar year in which the producer (a) realized less than $1,000,000 in total gross
151revenue during the prior calendar year, or (b) the producer sold, offered for sale or distributed for
152sale in or into the commonwealth during the prior calendar year products contained, protected,
153delivered, presented or distributed in or using less than one ton of covered material in total.
154 Section 332. Producer responsibility organization needs assessments. To satisfy the
155requirements under sections 330 to 345, producers of covered materials sold or distributed into 9 of 33
156the commonwealth, or organizations formed by groups of producers for this purpose, shall,
157within 6 months following the enactment of this legislation, establish a producer responsibility
158organization that shall act as an agent and on behalf of each producer to operate the packaging
159and paper products program.
160 (a) The producer responsibility organization formed in compliance with sections 330 to
161345 shall be established and operated as an organization described in section 501(c)(3) of the
162Internal Revenue Code of 1986 and exempt from taxation under 501(a) of that Code.
163 (b) The organization shall conduct an initial needs assessment within six months of
164contract award. The needs assessment shall include an assessment of the impact of the
165newspaper industry on recycling infrastructure and the environment in the commonwealth and
166may include recommendations regarding definitions in section 330 of this chapter. The initial
167needs assessment may also include recommendations for the producer responsibility organization
168plan. The needs assessment shall be published and publicly accessible on the department’s
169website. A copy of the needs assessment shall be filed with the clerks of the senate of the house
170of representatives and the joint committee on environment, natural resources and agriculture.
171 (c) Subsequent needs assessments shall be conducted every five years by the organization
172in consultation with the committee. Subsequent needs assessments may include an assessment of
173the impacts of the newspaper industry on recycling infrastructure in the commonwealth and may
174include recommendations regarding definitions in section 330 of this chapter, and may also
175include recommendations to include in subsequent plans. Subsequent needs assessments shall be
176published and publicly accessible on the department’s website. A copy of subsequent needs 10 of 33
177assessments shall be filed with the clerks of the senate and the house of representatives and the
178joint committee on environment, natural resources and agriculture.
179 Section 333. Producer plan. Within six (6) months of the promulgation of related
180regulations by the department pursuant to section 342, the producer responsibility organization
181shall submit a plan for the establishment of the producer responsibility program to the
182department for approval. With the exception of paragraph (h), the plan shall have a duration of
183five (5) years. The plan must include, at a minimum:
184 (a) A description of how the producer responsibility organization will administer the
185program, including the mechanism or process, to be developed with input from producers, by
186which producers may request and receive assistance from the organization in the reporting of
187required information and guidance for covered material modifications that would reduce fee
188payments; and the mechanism or process, to be developed with input from collectors, by which
189participating collectors may request and receive assistance from the organization in the reporting
190of required information and guidance for recycling program modifications that would increase
191access to and participation in covered entity recycling programs.
192 (b) A description of how the organization intends to solicit and consider input from the
193advisory committee
194 (c) A description of the funding mechanism covering the entire cost of the program,
195including how the organization intends to establish and manage the producer responsibility fund
196consistent with the requirements of sections 335 and 337, including, but not limited to: staffing
197the organization to manage the fund; a plan to ensure equity of access for financially or
198otherwise challenged municipal participants; technical support to producers and collectors 11 of 33
199regarding program requirements; administering and collecting payments to and reimbursements
200from the fund and the financial mechanisms, including investment types if any, the organization
201intends to use to manage monies within the fund.
202 (d) A proposed budget outlining the anticipated costs of operating the program, including
203identification of any start-up costs that will not be ongoing and a description of the method by
204which the organization intends to determine and collect producer payments during the start-up
205period of program operation, and to reimburse or require additional payments by those producers
206subsequent to the start-up period based on producer reporting of the actual amount of covered
207material sold, offered for sale or distributed for sale in or into the commonwealth by each
208producer during the start-up period. The proposed budget should describe how the organization
209will maintain a financial reserve sufficient to operate the program in a fiscally prudent and
210responsible manner, such that it considers historical variations in market values of post-consumer
211packaging types. The proposed budget under this paragraph may overestimate the cost of
212operating the program during the start-up period of operation but must describe the method and
213basis for any overestimate.
214 (e) A proposal for how expenditures from the fund will be used for investments in
215convenience, public outreach, education, communication, and infrastructure enhancement in a
216way that increases access to recycling and reuse throughout the commonwealth, and how the
217organization’s development of such investment proposals must incorporate input from the
218committee. Public outreach, education, and communication shall:
219 (1) Promote the proper end-of-life management of covered materials.
220 (2) Provide information on how to prevent litter of covered materials. 12 of 33
221 (3) Provide recycling instructions that are, to the extent practicable, consistent statewide;
222easy to understand; easily accessible; and in compliance with the annually published list of
223readily recyclable materials under paragraph (c) of section 342.
224 (4) Provide for outreach and education that are (i) designed to achieve covered materials
225goals under paragraph (f ) of this section, including the prevention of contamination of
226materials; (ii) coordinated across programs or regions to avoid confusion for consumers; and (iii)
227developed in consultation with the advisory committee.
228 (f) A description of how, through the proposed expenditures under paragraph (e), the
229organization intends to provide convenient and free consumer access to collection services or
230collection facilities for all covered entities in the commonwealth, and how the organization
231intends to achieve and assist collectors and facilities in achieving a combined reduction from a
232specified baseline and recycling rate, based on regular audits of outbound tonnages of covered
233material from facilities as reported to the department pursuant to paragraph (f) of section 342, of
234no less than sixty (60) percent by weight by July 1, 2030, no less than seventy five (75) percent
235by weight by July 1, 2035, and no less than ninety (90) percent by weight by July 1, 2040, of
236covered materials managed by the organization. The organization shall also provide a description
237of how it intends to achieve and assist collectors and facilities in achieving performance
238standards for each type of covered material as published annually by the department pursuant to
239paragraph (d) of section 342.
240 (g) A proposed schedule of minimum post-consumer recycled material content rate
241requirements for covered materials, including a description of how the organization intends to
242meet the proposed minimum post-consumer recycled material content rates. The minimum post- 13 of 33
243consumer recycled material content rates shall include each covered material category, and shall
244not be less than ten (10) percent of all material in each covered material category, by weight by
2452035.
246 (h) A description of how the organization intends to use the materials cost differentiation
247system developed by the department and the annual schedule of adjustments under paragraphs
248(a) and (b) of section 342 to assess fees for producers of each type of covered materials, as
249defined by the department, in compliance with all applicable provisions of sections 330 to 345.
250The description must include a flat-rate fee schedule for producers generating between one (1)
251and fifteen (15) tons of covered materials annually. The organization shall develop an evaluation
252system for the fee structure, and shall annually evaluate, revise and submit an updated
253assessment schedule along with the annual report submitted to the department pursuant to section
254339.
255 (i) A description of how the organization intends to fund representative third-party,
256independent audits of both inbound and outbound recyclable material generated in the
257commonwealth that is processed and sold by facilities; waste characterizations of municipal solid
258waste being disposed of in the commonwealth; and litter audits. The audits must be conducted at
259least annually, and must include:
260 (1) A description of the sampling techniques to be used in those audits, which must
261include random sampling.
262 (2) A description of how those audits, at a minimum, will be designed to solicit
263information regarding the extent to which recyclable material processed and sold by those 14 of 33
264facilities reflects the tons of each type of covered material recycled in the commonwealth and the
265ultimate state or country destination of and intended use for that material.
266 (3) Requirements regarding how the audits will be designed so that information obtained
267through the audit of one facility will not be used to infer information about a different facility
268that uses different processing equipment, different sorting processes or different staffing levels to
269conduct such processing.
270 (4) Requirements regarding how a facility will be allowed to request and receive an audit
271if it can credibly demonstrate that an audit result being applied to its material output is not
272representative of its current operations.
273 (5) For waste disposal audits, at a minimum, a description of the types and weight of
274covered material in the disposal waste stream, and the percentage by weight of the disposal waste
275stream that is comprised of covered materials.
276 (6) For litter audits, to the maximum extent practicable, a description of the covered
277material type by weight, identification of producer, and the general description of where the litter
278is accumulating throughout the commonwealth.
279 (j) A description of how the plan addresses the needs identified in the most recently
280published needs assessment.
281 (k) Any additional information required by the department.
282 Section 334. Approval of plan; plan amendments; corrective actions, termination of plan.
283In accordance with the applicable provisions of sections 330 to 345, the department shall
284review the producer responsibility plan and amendments to such plan submitted by the 15 of 33
285organization, and shall require the implementation of corrective actions by the organization to
286the packaging and paper products program within a specified timeframe. Following approval of
287the plan by the department under this section, the producer responsibility organization shall
288immediately begin implementation of the plan.
289 (a) The department shall review the producer responsibility plan submitted by the
290organization pursuant to section 333 and approve or deny the plan within ninety (90) days of
291receipt. The department shall approve the plan if the department determines that the plan meets
292the requirements of section 333 and is otherwise consistent with all applicable requirements of
293sections 330 to 345. If the department approves the plan, the department shall transmit written
294notice of that approval to the organization. An approval under this section must terminate five (5)
295years from the date of that approval but may be extended for an additional five (5)-year period
296following the submission by the organization of an updated plan consistent with section 333 that
297is approved by the department consistent with this section. The organization must submit an
298updated plan no later than one hundred eighty (180) days prior to the date its current plan
299expires.
300 (b) If the department determines that a submitted plan fails to meet any applicable
301requirements of sections 330 to 345, the department shall provide written notice to the
302organization describing the reasons for rejecting the plan. No later than forty-five (45) days after
303receiving written notice rejecting a submitted plan, the organization shall revise and resubmit the
304plan to the department. The department shall review the revised plan, decide whether to approve
305it and provide written notice of the department's decision within forty-five (45) days of receipt of
306the revised plan. 16 of 33
307 (c) The organization may propose modifications to the approved plan, provided the
308organization submits the proposed modifications to the department for review and consults the
309advisory committee as required under paragraph (a )(ii) of section 332. Not later than forty-
310five (45) days following receipt of proposed modifications, the department shall approve the
311modifications if the department determines the revision is in accordance with sections 330 to
312345. If the department determines the revision is not in accordance with sections 330 to 345, the
313department shall communicate the determination to the organization, at which time the
314organization shall resubmit proposed modifications to the department for approval. If the
315department does not make a determination under this paragraph within forty-five (45) days of the
316receipt of a proposed modification, the modification shall be considered to be approved.
317 (d) If, based on its review of an organization's annual report required under section 339 or
318on a different basis, the department determines that the organization is not operating the
319packaging and paper product program in a manner consistent with its approved plan, or the
320provisions of this section, the department may require the organization to implement
321amendments to the plan or corrective actions to the program. If the organization fails to
322implement a department-required amendment to the plan or corrective action to the program
323within the time frame for implementation required by the department, the department may take
324enforcement actions pursuant to section 343.
325 Section 335. Producer payments. In accordance with the provisions of this section and the
326regulations promulgated by the department, within six (6) months of establishment of the
327organization no later than thirty (30) days after the approval under section 332, and quarterly
328until the first producer report is submitted to the organization, a producer shall make payments to
329the organization to be deposited into the producer responsibility fund under section 337, based 17 of 33
330on the amount of each type of covered material sold, offered for sale or distributed for sale in or
331into the commonwealth by the producer and not managed under an approved alternative
332collection program. The department shall promulgate regulations under section 342 setting forth
333the manner in which such payments must be calculated. Payments must include a producer’s
334share of administrative, enforcement, education and infrastructure costs, and must reflect the per
335ton costs associated with collection, processing, transportation and recycling or disposal of
336covered materials; the costs associated with increasing access to reuse and recycling of covered
337materials; and other criteria as determined by paragraph (b) of section 342. In total, payments
338made by producers to the organization shall be sufficient to cover all expenditures under section
339337.
340 Section 336. Annual reporting by producers. Beginning no later than 180 days after the
341approval of the producer responsibility plan under section 334, and in conjunction with payments
342made pursuant to section 335, a producer shall annually report to the organization the total tons
343of each type of covered material sold, offered for sale or distributed for sale in or into the
344commonwealth by the producer in the prior calendar year and the methods for determining the
345reported amounts; the characteristics of that covered material that are relevant to the fee
346adjustment criteria as determined by the department by rule in accordance with paragraph (b),
347section 342; and a list of all of the producer's brands associated with that covered material. The
348department and advisory committee may (i) request additional data and information from the
349producer; and (ii) recommend amendments to the annual reporting requirements for producers.
350 Section 337. Producer responsibility fund; authorized expenditures. In accordance with
351the provisions of this section and the regulations promulgated by the department, the
352organization shall establish and manage a producer responsibility fund. The organization shall 18 of 33
353deposit into the fund all payments received from producers in accordance with section 335 and
354shall expend those funds for the following uses:
355 (a) To reimburse participating collectors in accordance with section 341.
356 (b) To fund the actual operating costs of the organization, which may not exceed the
357estimated operating costs indicated in the plan approved by the department pursuant to section
358341, and which must be verified through a third-party audit paid for by the organization.
359 (c) To pay into the sustainable packaging trust all applicable fees required by the
360department under section 342(e).
361 (d) To make investments in education and infrastructure that support the reduction,
362recycling and reuse of covered material in the commonwealth, which are directly supported by
363producer payments for covered materials and must be approved by the department prior to any
364such expenditures, and which must incorporate input from the advisory committee. Of the
365expenditures from the producer responsibility fund for a fiscal year, the organization shall ensure
366that not less than two (2) percent is used for education and not less than eight (8) percent is used
367for infrastructure described under this section and in compliance with the approved producer
368responsibility plan under section 334. These amounts may be adjusted with approval by the
369department based on progress toward the achievement of the reduction and recycling targets in
370section 333 paragraph (c).
371 (1) The organization shall submit any proposed expenditure under this paragraph to the
372advisory committee for approval prior to making such expenditure. 19 of 33
373 (2) The department shall promulgate regulations setting approval criteria for the
374evaluation of proposed expenditures under this paragraph.
375 (3) The department shall approve or deny a proposed expenditure under this paragraph
376within 90 days of receipt of the proposal.
377 (e) To fulfill any other obligation required by the producer responsibility plan, including
378representative audits of covered materials from materials recovery facilities, solid waste
379facilities, and litter.
380 (f) Expenditures from the producer responsibility fund shall be used only for the uses
381described in this section; and shall not be used to pay penalties imposed under section 342, any
382costs associated with litigation against the commonwealth, or any lobbying efforts.
383 (g) If for any reason sections 330 to 345 are repealed, or the producer responsibility
384organization ceases operation, the entire fund balance shall be transferred by the organization to
385the Commonwealth of Massachusetts to be deposited into the sustainable packaging trust.
386 Section 338. Alternative collection program. In accordance with the requirements of this
387section and the regulations promulgated by the department, a producer or group of producers
388may develop and operate an alternative collection program to collect and manage a type or types
389of covered material sold, offered for sale or distributed for sale in or into the commonwealth by
390the producer or producers. A producer that manages a type of covered material under an
391approved alternative collection program through reduction, reuse, recycling may wholly or
392partially offset the producer's payment obligations under the packaging and paper product
393program with respect to that same type of covered material only. 20 of 33
394 (a) Once a producer responsibility organization has a plan approved by the department
395for the creation of a packaging and paper products program, a producer or group of producers
396seeking to implement an alternative collection program shall submit a proposal for the
397establishment of that program to the department for approval. The department shall provide an
398opportunity for public review and comment on the proposal or deny the proposal within ninety
399(90) days of receipt. The department may approve an alternative collection program for a term of
400five (5) years and, at the expiration of such term, the producer or group of producers operating
401the program may submit an updated proposal to the department for approval.
402 (b) In determining whether to approve a proposed alternative collection program, the
403department shall consider:
404 (1) Whether the alternative collection program will provide convenient, free, statewide
405collection opportunities for the types of packaging material to be collected under that program.
406 (2) To what extent the alternative collection program intends to manage those types of
407covered material to be collected under the program through reduction, reuse for an original
408purpose, recycling or disposal at an incineration facility. The department may not approve an
409alternative collection program that proposes management of a covered material type through
410disposal at an incineration facility unless that covered material is not readily recyclable as
411defined by the department pursuant to section 342 and the program proposes a process to begin
412reuse or recycling of that type of covered material within a period of 3 years or less. The
413program shall ensure that a combined reduction and recycling rate is achieved of no less than
414sixty-five (65) percent by weight by July 1, 2030, no less than eighty (80) percent by weight by 21 of 33
415July 1, 2035, and no less than ninety (90) percent by weight by July 1, 2040 of covered materials
416managed by the organization.
417 (3) Whether the education and outreach strategies proposed for the alternative collection
418program can be expected to significantly increase consumer awareness of the program
419throughout the commonwealth.
420 (4) How the alternative collection program intends to accurately measure the amount of
421each covered material type collected, reused, recycled, disposed at an incineration facility or
422otherwise managed under the program.
423 (5) To what extent the alternative collection program may: (i) disproportionately impact
424one community over another; (ii) impact environmental justice populations, as defined in section
42562 of chapter 30, and (iii) provide equitable regional access to the program.
426 (c) A proposed modification to an approved alternative collection program must be
427submitted to the department for written approval. The department shall approve or deny a
428proposed modification based on application of the criteria described in paragraph (b).
429 (d) A producer or producers managing an approved alternative collection program shall
430report annually and concurrent with the reporting required by section 339 to the organization and
431to the department the following information:
432 (1) The total tons of each type of covered material collected, reused, recycled, disposed at
433a landfill or municipal waste combustor or otherwise managed under the alternative collection
434program in the prior twelve months, including a breakdown of the total tons of each type of
435material to be credited to each producer participating in the alternative collection program. 22 of 33
436 (2) A list of the collection opportunities in the commonwealth for the types of covered
437material managed under the alternative collection program that were made available in the prior
438twelve months.
439 (3) A description of the education and outreach strategies implemented by the alternative
440collection program in the prior calendar year to increase consumer awareness of the program
441throughout the commonwealth.
442 (4) Progress toward reducing the disposed tons of the material.
443 (5) Any additional information required by the department.
444 (e) No later than thirty (30) days after the approval of an alternative collection program
445under this section, and quarterly thereafter, a producer or producers participating in an approved
446alternative collection program shall make a payment into the sustainable packaging trust for the
447department’s administrative costs of operating the program as determined by the department
448pursuant to section 342(f).
449 (f) If the department determines that an approved alternative collection program is not
450operating in a manner consistent with the proposal approved under this section or the provisions
451of this section, the department shall provide written notice to the producer or producers operating
452the alternative collection program regarding the nature of the deficiency, the actions necessary to
453correct the deficiency and the time by which such actions must be implemented. If the
454department determines that the producer or group of producers have failed to implement the
455actions described in the written notice within the required time frame, the department shall notify
456the producers or group of producers as well as the producer responsibility organization in writing
457that the producer or group of producers are ineligible to offset payment obligations under the 23 of 33
458packaging and paper product program based on covered material managed under the alternative
459collection program. The department may also bring enforcement actions against the producer or
460group of producers under section 343.
461 Section 339. Annual reporting by producer responsibility organization. The producer
462responsibility organization shall submit an annual report to the department on a regular schedule
463determined by the department for the preceding calendar year the program was in operation,
464which shall include:
465 (a) Contact information for the producer responsibility organization.
466 (b) A list of participating producers and the brands of products associated with those
467producers.
468 (c) The total amounts of each type of covered material sold, offered for sale or distributed
469for sale in or into the commonwealth by each participating producer as reported in accordance
470with section 336.
471 (d) As applicable, the total amount of each type of covered material collected and
472managed by each producer participating in an alternative collection programs approved by the
473department under section 338
474 (e) A complete accounting of payments made to and by the organization during the prior
475calendar year, as determined by an independent financial audit performed by an independent
476auditor, including information on how the organization determined the amount of such payments
477in conformance with regulations promulgated in accordance with section 342.
478 (f) A copy of the independent audit described in paragraph (e). 24 of 33
479 (g) A list of producers not participating in the program that are required to participate in
480the program and any product specific non-compliance, if known by the organization.
481 (h) A description of education and infrastructure investments made by the organization in
482prior calendar years and how those expenditures quantifiably increased access to recycling and
483reuse of covered materials throughout the commonwealth.
484 (i) An updated assessment schedule, as required under paragraph (h) of section 333.
485 (j) Results of representative inbound and outbound audits of recyclable material
486processed and sold by materials recycling facilities in the commonwealth, waste characterization
487of municipal solid waste being disposed of in the commonwealth, and litter audits.
488 (k) Progress toward any program goals determined in the producer responsibility plan.
489 (l) Any other information the department determines to be appropriate.
490 Section 340. Requirements for collector reimbursements. In accordance with the
491provisions of this section and the regulations promulgated by the department, a collector may
492elect to, but is not required to, participate in the program under sections 330 to 345.
493 All collectors, regardless of participation status, shall provide collection and recycling of
494readily recycled materials covered recyclables to all covered entities to which they provide
495disposal service at a single cost incorporated in the trash collection rate.
496 The organization shall reimburse participating collectors for incurred net costs associated
497with collection, processing, transportation and recycling of covered materials from all residential
498units and schools for incurred net costs associated with processing and recycling of covered
499materials from covered entities. The organization shall ensure that, in the event no collector has 25 of 33
500elected to participate in the program in a given jurisdiction, convenient, equitable and free access
501to recycling services is available to all covered entities within that jurisdiction. Participating
502collectors shall not charge fees to covered entities for reimbursable costs.
503 (a) To be eligible for reimbursement of costs under sections 341 as a participating
504collector, a collector must provide for the collection and recycling of covered materials that are
505generated by all covered entities using its service and that are readily recyclable as listed
506regularly by the department and that are not collected by an alternative collection program in
507accordance with section 338, and must quarterly report to the organization all information
508necessary for the organization, on a form provided by or approved by the department, to
509determine the collector’s incurred net costs associated with collection, processing, transportation
510and recycling of recyclable material.
511 (b) A collector shall report the information described in paragraph (a) to the organization
512or coordinating body on a form provided by or approved by the department.
513 (b) Two or more municipalities, a regional refuse district or association, a municipally
514owned processing facility or quasi-municipal entity that manages materials on behalf of a
515municipality may elect to jointly report to the organization and jointly receive reimbursement
516payments from the organization.
517 (c) The organization shall reimburse collectors for qualifying costs within thirty (30) days
518of submission.
519 Section 341. Disbursement of collector reimbursements. In accordance with the
520provisions of this section, section 340, and regulations promulgated by the department, the
521organization shall make reimbursement payments from the fund to participating collectors for 26 of 33
522incurred costs associated with collection, processing, transportation and recycling of covered
523materials from all covered entities.
524 (a) In accordance with the regulations promulgated by the department pursuant to section
525342, the organization or coordinating body shall determine the amount of reimbursements to
526participating collectors under this section based on the following information:
527 (1) Information provided by participating collectors to the organization or coordinating
528body in accordance with section 340 regarding the incurred net costs associated with collection,
529processing, transportation and recycling of recyclable material.
530 (4) Any other information specified by the department by rule.
531 (a) In accordance with regulations promulgated by the department, the organization shall
532use the information described in paragraph (a) to determine the total tons of each covered
533material type recycled by all collectors at each recycling establishment and the percentage of
534those total tons attributable to each participating collector. In the case of two or more
535municipalities that jointly send recyclable material to a recycling establishment, the organization
536shall assume that an equal amount of the jointly sent material is attributable to each resident of
537each municipality unless those municipalities by agreement identify an unequal per capita
538division of that jointly sent material for the purposes of this section.
539 Section 342. Administration and enforcement; rulemaking; fees; additional department
540responsibilities. The department shall administer and enforce this section and shall promulgate
541regulations as necessary to implement, administer and enforce this section. All regulations
542developed under this section shall be promulgated no later than twelve (12) months after the
543passage of this act. 27 of 33
544 (a) No later than three (3) months from enactment, the department shall establish an
545advisory committee that represents a range of interested and engaged persons, including the
546commissioner of the department of environmental protection or a designee, one member who
547shall be appointed by the attorney general and who shall have expertise in consumer protection,
548and one individual each representing producers, retailers, waste haulers, material recovery
549facility operators, municipalities, environmental and community organizations, freshwater and
550marine litter programs, reuse organizations, regional end-of-life management of covered
551materials, and environmental and human health scientists. Each individual serving on the
552advisory committee may represent only one (1) member of each category listed under this
553paragraph, and the organization shall ensure that no category has a disproportionate
554representation on an advisory committee. The department may select a third-party facilitator for
555the advisory committee.
556 (b) The department shall hold an advisory meeting at least quarterly; request and consider
557comments from the advisory committee prior to developing guidance for the plan or any
558modifications to the plan, and proposals by the organization for infrastructure and education
559investments; and include a summary of advisory committee engagement and input in the report
560under section 339.
561 (c) The department shall develop a material cost differentiation system with which the
562producer responsibility organization will calculate material category-specific per-ton producer
563payments. The material cost differentiation mechanism shall be based on the net cost of
564residential curbside collection or transfer station operation, on-site processing cost for each
565readily recyclable covered material types, management cost of non-readily recyclable covered
566materials, transportation cost for each covered material, and any other cost factors as determined 28 of 33
567by the department. Cost calculations shall take into consideration revenue generated from
568recyclable materials and must incentivize operational efficiency and contamination reduction.
569 (d) The department shall regularly publish a schedule of adjustments to be used by the
570producer responsibility organization in determining the amount of producer payments required
571under section 335. The schedule of adjustments shall apply to both readily and non-readily
572recyclable covered materials as defined in paragraph (c), and shall be used to individually adjust
573the fees assessed for each category of covered material as defined in paragraph (d). To minimize
574the extraction, manufacture, use, and end-of-life-management impacts of covered materials, the
575schedule of adjustments must be structured to incent:
576 (1) Covered material waste reduction.
577 (2) Reuse and lifespan extension of packaging.
578 (3) Use of readily recyclable materials to manufacture covered materials.
579 (4) Increased use of post-consumer recycled content material in covered materials so long
580as it does not increase the toxicity of the packaging material.
581 (5) Reduced use of toxic substances in covered materials, which raise the lifecycle
582environmental and societal costs of packaging.
583 (7) The use of the minimum quantity of packaging necessary to effectively deliver a
584product without damage or spoilage.
585 (7) Single-material packaging with clear recycling or disposal instructions for consumers,
586and other design characteristics that reduce contamination in recycling. 29 of 33
587 (8) Domestic processing of covered materials.
588 (9) Minimal life cycle impact of covered materials.
589 (e) The department shall regularly publish a list of readily recyclable materials,
590developed through coordination with the producer responsibility organization and material
591recovery facilities or other entities managing covered materials. The department shall provide for
592a transitional period between the time that a type of covered material is determined to be readily
593recyclable or to not be readily recyclable and the time that such determinations will be effective
594for the purposes of determining producer payments and collector reimbursements in accordance
595with secs. 330 to 345. The department may amend the list of readily recyclable materials as
596needed.
597 (f) The department shall coordinate with the producer responsibility organization to
598establish categories of covered materials. The covered material categories shall group covered
599materials that have similar properties such as chemical composition, shape, or other
600characteristics, including, but not limited to: rigid or flexible plastics made of polyethylene
601terephthalate (PET), polyethylene (PE), polyvinyl chloride (PVC), polypropylene (PP),
602polystyrene (PS), poly coated fiber, multi-layered material, other (BPA, Compostable Plastics,
603Polycarbonate and LEXAN); metal, such as aluminum, tin, and steel; paper; cartons; and glass.
604 (g) Beginning at the time that the producer responsibility organization is formed, the
605department shall submit to the organization, and quarterly thereafter, all costs incurred in the
606administration of the packaging and paper products program, including oversight, issuance of
607any regulations, conducting the needs assessment, any third-party facilitators hired for the
608advisory committee, planning, plan review, including proposed modifications to the plan under 30 of 33
609section 334, compliance, enforcement, and sufficient staff positions to administer the program.
610All funds shall be deposited in the sustainable packaging trust.
611 (h) Beginning at the time that a producer or producers begin an approved alternative
612collection program pursuant to section 338(a), the department shall submit to the producer or
613producers, and quarterly thereafter, all costs incurred in the administration of the alternative
614collection program, including oversight, issuance of any regulations, planning, plan review,
615including proposed modifications to the plan under section 338, compliance, enforcement, and
616sufficient staff positions to administer the program. All funds shall be deposited in the
617sustainable packaging trust.
618 (i) Beginning one (1) year after passage of secs. 330 to 345, the department shall
619establish a toxic substances list, and may reference existing toxic or hazardous substances lists
620created by other state agencies and the Interstate Chemicals Clearinghouse. Any person may
621petition the department to add a chemical or chemical class substance to the list based on
622scientific evidence. The department shall review and update the list of toxic substances at least
623every three years.
624 (j) Upon request by the department, the organization shall provide a list of producers that
625are participating in the program and are compliant with the program's requirements and, if
626known to the organization, a list of producers that are not participating in the program and are
627not compliant with the program's requirements.
628 (k) Based on the information provided to the department under paragraph (g) and any
629other information considered by the department, the department shall make available on its
630publicly accessible website a regularly updated list of producers that the department has 31 of 33
631determined are compliant with all applicable requirements of this section and a list of producers
632and, where applicable, specific producers or products that the department has determined are not
633compliant with all applicable requirements of this section. The department shall conduct
634outreach to retailers to ensure that retailers are aware of the information made available under
635this paragraph and any changes to that information.
636 Section 343. Enforcement. Within thirty (30) days of approval of the plan, no producer,
637distributor, retailer, or other responsible party for a covered material shall sell, offer for sale, use,
638or distribute any covered material to any person in the commonwealth if the producer of such
639materials is not in compliance with sections 330 to 345. No collector may provide collection for
640disposal unless they are in compliance with section 340.
641 (a) Any producer or collector that violates this section shall be subject to a fine for each
642violation and for each day that the violation occurs in an amount of not more than $200,000.
643 (b) The department may bring a civil action to enjoin the sale, distribution, or importation
644into the commonwealth of a covered material in violation of this part.
645 (c) The department may bring a civil action to enjoin the operation of a collector that fails
646to provide convenient recycling service at an all-inclusive price to covered entities.
647 (d) The penalties provided for in this section may be recovered in a civil action brought in
648the name of the People of the Commonwealth of Massachusetts by the Commonwealth’s
649Attorney General. Any funds collected under this section in an action in which the Attorney
650General has prevailed shall be deposited in the sustainable packaging trust. 32 of 33
651 Section 344. Antitrust laws. A producer or producer responsibility organization,
652including a producer's or organization's officers, members, employees and agents that organize a
653packaging and paper product program or an alternative collection program under sections 330 to
654345, is immune from liability for the producer's or organization’s conduct under state laws
655relating to antitrust, restraint of trade, unfair trade practices and other regulation of trade or
656commerce only to the extent necessary to plan and implement the producer's or organization’s
657packaging and paper product program or alternative collection program consistent with the
658provisions of sections 330 to 345.
659 Section 345. Proprietary information. Proprietary information submitted to the
660department pursuant to the requirements of section 330 to 345 or the rules adopted pursuant to
661sections 330 to 345 that is identified by the submitter as proprietary information shall be kept
662confidential.
663 SECTION 2. Chapter 10 of the General Laws is hereby amended by inserting after
664section 35DDD the following section:
665 Section 35EEE. Sustainable packaging trust. There shall be established an expendable
666trust to be known as the sustainable packaging trust. Amounts deposited in the trust shall be used
667for department administration of the packaging and paper product program or an alternative
668collect
669 ion program developed under section. 330 to 345 of chapter 94 of the Massachusetts
670General Laws, and for other uses described in this section. Proceeds of the trust shall be invested
671by the treasurer and shall be under the care and custody of the commissioner of the department
672of environmental protection, in consultation with the committee established in paragraph (c) of 33 of 33
673section 332 of Chapter 94 of the Massachusetts General Laws. Interest earnings on funds
674deposited in said trust shall be credited to and become part of the trust. Proceeds from the trust
675shall be expended by said commissioner without further appropriation to cover administrative
676costs for the implementation and enforcement of this section, including oversight, issuance of
677any regulations, planning, plan review, review of proposed modifications to a plan developed
678under sections 334 or 338 of Chapter 94 of the Massachusetts General Laws, compliance,
679enforcement, and adequate staff positions to administer the packaging and paper products
680program or an alternative collection program. Adequate department staff positions shall include
681but not be limited to five (5) FTE positions: one managerial position, three compliance and
682enforcement positions, and one administrative position.
683 (a) Any funds collected under section 343 of chapter 94 of the Massachusetts General
684Laws in an action in which the Attorney General has prevailed shall be deposited in the trust, and
685shall be used to administer grants and loans to businesses, non-profits and collectors, as defined
686in section 330 of chapter 94 of the Massachusetts General Laws, to reduce environmental
687impacts related to the collection and recycling of the covered material category for which the
688penalty was exacted.
689 (b) The commissioner of environmental protection shall cause to be filed with the chairs
690of the house and senate committees on ways and means an annual report regarding the revenues
691and expenditures provided from the trust.