Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S572 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 539 FILED ON: 1/17/2023
3	3	SENATE . . . . . . . . . . . . . . No. 572
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Michael F. Rush
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to save recycling costs in the commonwealth.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Michael F. RushNorfolk and SuffolkPaul McMurtry11th Norfolk2/2/2023Jack Patrick Lewis7th Middlesex2/6/2023John J. CroninWorcester and Middlesex2/7/2023James K. Hawkins2nd Bristol2/8/2023Thomas M. Stanley9th Middlesex2/9/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/14/2023Vanna Howard17th Middlesex2/16/2023Michael O. MooreSecond Worcester2/16/2023James B. EldridgeMiddlesex and Worcester2/21/2023Jason M. LewisFifth Middlesex2/21/2023 1 of 32
16	16	SENATE DOCKET, NO. 539 FILED ON: 1/17/2023
17	17	SENATE . . . . . . . . . . . . . . No. 572
18	18	By Mr. Rush, a petition (accompanied by bill, Senate, No. 572) of Michael F. Rush, Paul
19	19	McMurtry, Jack Patrick Lewis, John J. Cronin and other members of the General Court for
20	20	legislation to save recycling costs in the commonwealth. Environment and Natural Resources.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 610 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to save recycling costs in the commonwealth.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Chapter 94 of the General Laws is hereby amended by inserting after
32	32	2section 329 the following sections:
33	33	3 Section 330. Definitions applicable to Secs. 330 to 345. In section three hundred and
34	34	4thirty to section three hundred and forty-five, inclusive, the following terms shall, unless the
35	35	5context clearly appears otherwise, have the following meanings:
36	36	6 "Alternative collection program”, a program for the management of packaging material
37	37	7that is operated by an individual producer or group of producers and that has been approved by
38	38	8the department in accordance with section 338. 2 of 32
39	39	9 “Brand”, a name, symbol, word or mark that identifies a product, rather than its
40	40	10components, and attributes the product to the owner of the brand.
41	41	11 “Collector”, a municipality, private hauler, association, or other entity that collects solid
42	42	12waste from residential generators or schools.
43	43	13 “Committee”, the advisory committee as established by the producer responsibility
44	44	14organization or coordinating body pursuant to section 332.
45	45	15 “Coordinating body”, the entity formed by producer responsibility organizations if more
46	46	16than one organization is formed, pursuant to section 332.
47	47	17 "Covered materials”, any packaging material or paper products, regardless of
48	48	18recyclability or compostability, that are sold, offered for sale, or distributed to consumers in the
49	49	19state, including through an internet transaction.
50	50	20 “Covered material category”, the categories of covered materials as defined by the
51	51	21department pursuant to paragraph (d) of section 342.
52	52	22 “Department”, the department of environmental protection.
53	53	23 "Franchisee", a person that is granted a license by a franchisor to use the franchisor's
54	54	24trade name, service mark or related characteristic and to share in the franchisor's proprietary
55	55	25knowledge or processes pursuant to an oral or written arrangement for a definite or indefinite
56	56	26period.
57	57	27 "Franchisor", a person that grants to a franchisee a license to use the person's trade name,
58	58	28service mark or related characteristic and to share in the person's proprietary knowledge or
59	59	29processes pursuant to an oral or written arrangement for a definite or indefinite period. 3 of 32
60	60	30 “Material recovery facility” or “facility”, a facility that receives, processes, and sells or
61	61	31otherwise distributes post-consumer materials for recycling.
62	62	32 “Municipal solid waste”, any residential or commercial solid waste, as defined in 310
63	63	33CMR 19.006.
64	64	34 “Municipality”, a city, town, or regional association acting on behalf of a city or town.
65	65	35 "Packaging material", any part of a package or container, including material that is used
66	66	36for the containment, protection, handling, delivery, and presentation of a product that is sold,
67	67	37offered for sale, imported, or distributed in the state, including through internet transactions
68	68	38"Packaging material" does not include:
69	69	39 (a) A discrete type of material, or a category of material that includes multiple discrete
70	70	40types of material, intended to be used for the long-term storage or protection of a durable product
71	71	41and that can be expected to be usable for that purpose for a period of at least 5 years; or
72	72	42 (b) A discrete type of material, or a category of material that includes multiple discrete
73	73	43types of material, that is a beverage container, as defined in section 321 of this chapter.
74	74	44 “Paper products”, paper that can or has been printed on including flyers, brochures,
75	75	45booklets, catalogues, greeting cards, telephone directories, newspapers, magazines, paper used
76	76	46for copying, writing or any other general use. Paper products does not include:
77	77	47 (a) paper products that, by virtue of their anticipated use, could become unsafe or
78	78	48unsanitary to recycle; and
79	79	49 (b) any literary, text, reference, or other bound book. 4 of 32
80	80	50 "Producer", with respect to a covered material, producer means:
81	81	51 (a) an entity that manufactures and uses in a commercial enterprise, sells, offers for sale,
82	82	52or distributes the covered material in the commonwealth under the brand of the manufacturer;
83	83	53 (b) if clause (a) does not apply, an entity that is not the manufacturer of the covered
84	84	54material but is the owner or licensee of a trademark under which the covered product is used in a
85	85	55commercial enterprise, sold, offered for sale, or distributed in the commonwealth, whether or not
86	86	56the trademark is registered; or
87	87	57 (c) if clauses (a) and (b) do not apply, an entity that imports the covered material into the
88	88	58United States or the commonwealth for use in a commercial enterprise, sale, offer for sale, or
89	89	59distribution in the commonwealth.
90	90	60 (d) the definition of “producer” includes a franchisor of a franchise located in the
91	91	61commonwealth but does not include the franchisee operating that franchise.
92	92	62 (e). the definition of “producer” does not include a nonprofit organization exempt from
93	93	63taxation under the United States Internal Revenue Code, Section 501(c)(3), and any entity
94	94	64exempted from the program under section 331 of this chapter.
95	95	65 "Producer responsibility fund" or "fund", a privately held account established and
96	96	66managed by the stewardship organization pursuant to section 337.
97	97	67 "Producer responsibility organization" or "organization", a not-for-profit entity formed by
98	98	68a group of producers and contracted by the department under section 332 to act as an agent on
99	99	69behalf of each producer to develop and implement a producer responsibility plan. 5 of 32
100	100	70 "Producer responsibility plan" or “plan”, a detailed plan that describes the manner in
101	101	71which producers shall comply with the requirements of secs. 330 to 345 and all regulations
102	102	72promulgated by the department pursuant to secs. 330 to 345.
103	103	73 "Packaging and paper products program" or “program”, the program implemented under
104	104	74secs. 330 to 345 by the organization to assess and collect payments from producers based on the
105	105	75type and weight of packaging material sold, offered for sale or distributed for sale in the State by
106	106	76each producer and to reimburse participating municipalities for certain incurred municipal
107	107	77recycling and waste management costs.
108	108	78 “Readily-recycled”, with respect to a covered material, that the type of packaging
109	109	79material or paper product, as annually determined by the department:
110	110	80 (a) can be sorted by entities that process recyclable material generated in the
111	111	81commonwealth; and
112	112	82 (b) has a consistent market for purchase, as based on data from the prior two (2) calendar
113	113	83years. For the purposes of this paragraph, "consistent market for purchase" means, with respect
114	114	84to a type of packaging material, that entities processing recyclable material are willing to
115	115	85purchase full bales of that type of fully sorted packaging material in quantities equal to or in
116	116	86excess of the supply of that fully sorted packaging material.
117	117	87 “Readily-recycled”, does not include covered material categories or types that facilities
118	118	88accept in low quantities or sort out of material during additional processing steps; if facilities
119	119	89cannot aggregate or sell a full bale of a specific covered material category or type due to a lack
120	120	90of market or inability to feasibly separate, that covered material type is not readily-recyclable. 6 of 32
121	121	91Covered material categories or types shall not be considered readily-recyclable, recyclable,
122	122	92compostable, or reusable if they contain toxic substances as defined in this section.
123	123	93 "Recycling", to separate, dismantle or process the materials, components or commodities
124	124	94in covered materials for the purpose of preparing the materials, components or commodities for
125	125	95use or reuse in new products or components. "Recycling" does not include energy recovery or
126	126	96energy generation by means of combustion; pyrolysis, gasification and any other high-heat
127	127	97chemical conversion processes; or landfill disposal of discarded covered products or discarded
128	128	98product component materials.
129	129	99 “Residential”, of a place where residents live, stay, or are cared for over a period of more
130	130	100than two full days and nights, including but not limited to single and multifamily homes,
131	131	101apartments, condominiums, congregate housing, public housing, mobile home parks,
132	132	102dormitories, assisted living residences, nursing homes, hospitals, camps and hotels.
133	133	103 “School”, a public, private, or charter school, including pre-schools, K-12 schools,
134	134	104colleges, and universities.
135	135	105 “Sustainable packaging trust” or “trust”, an expendable trust under control of the
136	136	106department, created under Chapter 10 section 35EEE of the Massachusetts General Laws, for the
137	137	107purpose of collecting funds for department administration of the packaging and paper products
138	138	108program or an alternative collection program, and for collecting fines related to the packaging
139	139	109and paper products program or an alternative collection program.
140	140	110 "Toxic substance", with respect to packaging material, means a chemical or chemical
141	141	111class identified by a state agency, federal agency, international intergovernmental agency, 7 of 32
142	142	112accredited research university, or other scientific evidence deemed authoritative by the
143	143	113department on the basis of credible scientific evidence as being one or more of the following:
144	144	114 (a) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant,
145	145	115immunotoxicant, neurotoxicant, endocrine disruptor.
146	146	116 (b) a chemical or chemical class that is persistent or bioaccumulative.
147	147	117 (c) a chemical or chemical class that may harm the normal development of a fetus or
148	148	118child or cause other developmental toxicity in humans or wildlife.
149	149	119 (d) a chemical or chemical class that may harm organs or cause other systemic toxicity.
150	150	120 (e) a chemical or chemical class that may have adverse air quality impacts, adverse
151	151	121ecological impacts, adverse soil quality impacts, or adverse water quality impacts.
152	152	122 (f) the department has determined a chemical or chemical class has equivalent toxicity to
153	153	123the above criteria.
154	154	124 “Toxic substance”, for the purposes of secs. 330 to 345, includes the following chemicals
155	155	125or chemical classes: Per and Poly Fluor Alkyl Substances (PFAS); an ortho phthalate; a
156	156	126bisphenol compound; a halogenated, organophosphorus, organonitrogen, or nanoscale flame
157	157	127retardant chemical; Lead; Cadmium; Mercury; Hexavalent Chromium; and Formaldehyde.
158	158	128 “Waste disposal bans”, has the same meaning as in 310 CMR 19.000.
159	159	129 Section 331. Producer exemptions. Notwithstanding any provision of secs. 330 to 345 to
160	160	130the contrary, a producer is exempt from the requirements and prohibitions of sections 330 to 345
161	161	131in any calendar year in which the producer (a) realized less than $1,000,000 in total gross 8 of 32
162	162	132revenue during the prior calendar year, or (b) the producer sold, offered for sale or distributed for
163	163	133sale in or into the commonwealth during the prior calendar year products contained, protected,
164	164	134delivered, presented or distributed in or using less than one ton of covered material in total.
165	165	135 Section 332. Producer responsibility organizations. To satisfy the requirements under
166	166	136secs. 330 to 345, producers of covered materials sold or distributed into the commonwealth shall
167	167	137establish (a) producer responsibility organization(s) that shall act as an agent and on behalf of
168	168	138each producer to operate the packaging and paper products program. If more than one (1)
169	169	139producer responsibility organization is established with respect to a category or categories of
170	170	140covered materials, the commissioner of the department may establish a coordinating body to
171	171	141coordinate and manage those producer responsibility organizations, and conduct business
172	172	142between those producer responsibility organizations, collectors, and the department.
173	173	143 (a) If multiple producer responsibility organizations are formed, they must submit one
174	174	144single producer responsibility plan to the department and ensure seamless operation of the
175	175	145packaging and paper products program, thereby assigning responsibility equitably among
176	176	146producer responsibility organizations and relieving the department of responsibility associated
177	177	147with coordinating multiple producer responsibility organizations.
178	178	148 (b) Any producer responsibility organization formed in compliance with secs. 330 to 345
179	179	149shall be established and operated as an organization described in section 501(c)(3) of the Internal
180	180	150Revenue Code of 1986 and exempt from taxation under 501(a) of that Code.
181	181	151 (c) The organization or coordinating body shall establish an advisory committee that
182	182	152represents a range of interested and engaged persons relevant to the category of covered products
183	183	153of the applicable program, including the commissioner of the department of environmental 9 of 32
184	184	154protection or a designee, and individuals representing producers, retailers, waste haulers,
185	185	155material recovery facility operators, waste pickers, municipalities, environmental and community
186	186	156organizations, freshwater and marine litter programs, and environmental and human health
187	187	157scientists. Each individual serving on an advisory committee may represent only one (1) member
188	188	158of each category listed under this paragraph, and the organization or coordinating body shall
189	189	159ensure that no category has a disproportionate representation on an advisory committee.
190	190	160 (d) The producer responsibility organization or coordinating body shall hold an advisory
191	191	161meeting at least quarterly; request and consider comments from the advisory committee of the
192	192	162organization prior to the submission to the department of the plan or any modifications to the
193	193	163plan; report comments of the advisory committee to the department as an appendix to any
194	194	164revisions to the plan submitted to the department; and include a summary of advisory committee
195	195	165engagement and input in the report under section 339.
196	196	166 Section 333. Producer plan. Within eight (8) months of the promulgation of related
197	197	167regulations by the department pursuant to section 342 the producer responsibility organization(s)
198	198	168shall submit a plan for the establishment of the packaging and paper product program to the
199	199	169department for approval. With the exception of paragraph (h), the plan shall have a duration of
200	200	170five (5) years. The plan(s) must include, at a minimum:
201	201	171 (a) A description of how the producer responsibility organization will administer the
202	202	172program, including the mechanism or process, to be developed with input from producers, by
203	203	173which producers may request and receive assistance from the organization in the reporting of
204	204	174required information and guidance for covered material modifications that would reduce fee
205	205	175payments; and the mechanism or process, to be developed with input from collectors, by which 10 of 32
206	206	176participating collectors may request and receive assistance from the organization in the reporting
207	207	177of required information and guidance for recycling program modifications that would increase
208	208	178access to and participation in residential recycling programs.
209	209	179 (b) A description of how the organization intends to solicit and consider input from the
210	210	180advisory committee and other interested entities, including, but not limited to, producers,
211	211	181collectors, environmental organizations, and waste and recycling entities, regarding the operation
212	212	182of the packaging and paper products program.
213	213	183 (c) A description of the funding mechanism covering the entire cost of the program,
214	214	184including how the organization intends to establish and manage the producer responsibility fund
215	215	185consistent with the requirements of sections 335 and 337, including, but not limited to: staffing
216	216	186the organization and coordinating body to manage the fund; a plan to ensure equity of access for
217	217	187financially or otherwise challenged municipal participants; technical support to producers and
218	218	188collectors regarding program requirements; administering and collecting payments to and
219	219	189reimbursements from the fund and the financial mechanisms, including investment types if any,
220	220	190the organization intends to use to manage monies within the fund.
221	221	191 (d) A proposed budget outlining the anticipated costs of operating the program, including
222	222	192identification of any start-up costs that will not be ongoing and a description of the method by
223	223	193which the organization intends to determine and collect producer payments during the start-up
224	224	194period of program operation, and to reimburse or require additional payments by those producers
225	225	195subsequent to the start-up period based on producer reporting of the actual amount of packaging
226	226	196material sold, offered for sale or distributed for sale in or into the commonwealth by each
227	227	197producer during the start-up period. The proposed budget should describe how the organization 11 of 32
228	228	198will maintain a financial reserve sufficient to operate the program in a fiscally prudent and
229	229	199responsible manner, such that it considers historical variations in market values of post-consumer
230	230	200packaging types. The proposed budget under this paragraph may overestimate the cost of
231	231	201operating the program during the start-up period of operation but must describe the method and
232	232	202basis for any overestimate.
233	233	203 (e) A proposal for how expenditures from the fund will be used for investments in public
234	234	204outreach, education, communication, and infrastructure enhancement in a way that increases
235	235	205access to recycling and reuse throughout the commonwealth, and how the organization’s
236	236	206development of such investment proposals must incorporate input from producers, participating
237	237	207collectors, municipalities, environmental organizations, and waste and recycling entities. Public
238	238	208outreach, education, and communication shall:
239	239	209 (1) Promote the proper end-of-life management of covered materials.
240	240	210 (2) Provide information on how to prevent litter of covered materials.
241	241	211 (3) Provide recycling instructions that are, to the extent practicable; consistent statewide;
242	242	212easy to understand; easily accessible; and in compliance with the annually published list of
243	243	213readily recyclable materials under paragraph (c) of section 342.
244	244	214 (4) Provide for outreach and education that are; designed to achieve covered materials
245	245	215goals under paragraph (e) of this section, including the prevention of contamination of materials;
246	246	216coordinated across programs or regions to avoid confusion for consumers; and developed in
247	247	217consultation with local governments and other stakeholders. 12 of 32
248	248	218 (f) A description of how, through the proposed expenditures under paragraph (e), the
249	249	219organization intends to provide convenient and free consumer access to collection services or
250	250	220collection facilities for all residents in the Commonwealth, and how the organization intends to
251	251	221achieve and assist collectors and facilities in achieving a combined reduction and recycling rate,
252	252	222based on regular audits of inbound waste at facilities as described in paragraph (i) of this section
253	253	223and outbound tonnages of covered material from facilities as reported to the department pursuant
254	254	224to paragraph (f) of section 342, of no less than sixty-five (65) percent by weight by July 1, 2027,
255	255	225no less than eighty (80) percent by weight by July 1, 2031, and no less than one hundred (100)
256	256	226percent by weight by July 1, 2035 of covered materials managed by the organization. The
257	257	227organization shall also provide a description of how it intends to achieve and assist collectors in
258	258	228achieving performance standards for each type of covered material as published annually by the
259	259	229department pursuant to paragraph (d) of section 342.
260	260	230 (g) A proposed schedule of minimum post-consumer recycled material content rate
261	261	231requirements for covered materials, including a description of how the organization intends to
262	262	232meet the proposed minimum post-consumer recycled material content rates. The minimum post-
263	263	233consumer recycled material content rates shall include each covered material category, and shall
264	264	234not be less than ten (10) percent of all material in each covered material category, by weight.
265	265	235 (h) A description of how the organization intends to use the materials cost differentiation
266	266	236system developed by the department and the annual schedule of adjustments under paragraphs
267	267	237(a) and (b) of section 342 to assess fees for producers of each type of covered materials, as
268	268	238defined by the department, in compliance with all applicable provisions of secs 330 to 345. The
269	269	239description must include a flat-rate fee schedule for producers generating between one (1) and
270	270	240fifteen (15) tons of covered materials annually. The organization shall develop an evaluation 13 of 32
271	271	241system for the fee structure, and shall annually evaluate, revise and submit an updated
272	272	242assessment schedule along with the annual report submitted to the department pursuant to section
273	273	243339.
274	274	244 (i) A description of how the organization intends to fund representative third-party,
275	275	245independent audits of both inbound and outbound recyclable material generated in the
276	276	246commonwealth that is processed and sold by facilities; waste characterizations of municipal solid
277	277	247waste being disposed of in the commonwealth; and litter audits. The audits must be conducted at
278	278	248least annually, and must include:
279	279	249 (1) A description of the sampling techniques to be used in those audits, which must
280	280	250include random sampling.
281	281	251 (2) A description of how those audits, at a minimum, will be designed to solicit
282	282	252information regarding the extent to which recyclable material processed and sold by those
283	283	253facilities reflects the tons of each type of covered material recycled in the commonwealth and the
284	284	254ultimate state or country destination of and intended use for that material.
285	285	255 (3) Requirements regarding how the audits will be designed so that information obtained
286	286	256through the audit of one facility will not be used to infer information about a different facility
287	287	257that uses different processing equipment, different sorting processes or different staffing levels to
288	288	258conduct such processing.
289	289	259 (4) Requirements regarding how a facility will be allowed to request and receive an audit
290	290	260if it can credibly demonstrate that an audit result being applied to its material output is not
291	291	261representative of its current operations. 14 of 32
292	292	262 (5) For waste disposal audits, at a minimum, a description of the types and weight of
293	293	263packaging material in the disposal waste stream, and the percentage by weight and volume of the
294	294	264disposal waste stream that is comprised of covered materials.
295	295	265 (6) For litter audits, to the maximum extent practicable, a description of the packaging
296	296	266material type by weight, identification of producer, and the general description of where the litter
297	297	267is accumulating throughout the State.
298	298	268 (j) Any additional information required by the department.
299	299	269 Section 334. Approval of plan; plan amendments; corrective actions, termination of plan.
300	300	270In accordance with the applicable provisions of secs. 330 to 345, the department shall review the
301	301	271producer responsibility plan and amendments to such plan submitted by the organization or
302	302	272coordinating body, and shall require the implementation of corrective actions by the organization
303	303	273to the packaging and paper products program. Following approval of the plan by the department
304	304	274under this section, the producer responsibility organization shall immediately begin
305	305	275implementation of the plan.
306	306	276 (a) The department shall review the producer responsibility plan submitted by the
307	307	277organization or coordinating body pursuant to section 333 and approve or deny the plan within
308	308	278ninety (90) days of receipt. The department shall approve the plan if the department determines
309	309	279that the plan meets the requirements of section 333 and is otherwise consistent with all
310	310	280applicable requirements of secs. 330 to 345 of this chapter. If the department approves the plan,
311	311	281the department shall transmit written notice of that approval to the organization. An approval
312	312	282under this section must terminate five (5) years from the date of that approval but may be
313	313	283extended for an additional five (5)-year period following the submission by the stewardship 15 of 32
314	314	284organization of an updated plan consistent with section 333 that is approved by the department
315	315	285consistent with this section. The organization or coordinating body must submit an updated plan
316	316	286no later than one hundred twenty (120) days prior to the date its current plan expires.
317	317	287 (b) If the department determines that a submitted plan fails to meet any applicable
318	318	288requirements of secs. 330 to 345, the department shall provide written notice to the organization
319	319	289describing the reasons for rejecting the plan. No later than forty-five (45) days after receiving
320	320	290written notice rejecting a submitted plan, the organization shall revise and resubmit the plan to
321	321	291the department. The department shall review the revised plan, decide whether to approve it and
322	322	292provide written notice of the department's decision within forty-five (45) days of receipt of the
323	323	293revised plan.
324	324	294 (c) The organization may propose modifications to the approved plan, provided the
325	325	295organization submits the proposed modifications to the department for review and consults the
326	326	296advisory committee as required under paragraph (d) of section 332. Not later than forty-five (45)
327	327	297days following receipt of proposed modifications, the department shall approve the modifications
328	328	298if the department determines the revision is in accordance with secs. 330 to 345. If the
329	329	299department determines the revision is not in accordance with secs. 330 to 345, the department
330	330	300shall communicate the determination to the organization, at which time the organization shall
331	331	301resubmit proposed modifications to the department for approval. If the department does not make
332	332	302a determination under this paragraph within forty-five (45) days of the receipt of a proposed
333	333	303modification, the modification shall be considered to be approved.
334	334	304 (d) If, based on its review of an organization's annual report required under section 339 or
335	335	305on a different basis, the department determines that the organization is not operating the 16 of 32
336	336	306packaging and paper product program in a manner consistent with its approved plan, or the
337	337	307provisions of this section, the department may require the organization to implement
338	338	308amendments to the plan or corrective actions to the program. If the organization fails to
339	339	309implement a department-required amendment to the plan or corrective action to the program
340	340	310within the time frame for implementation required by the department, the department may take
341	341	311enforcement actions pursuant to section 343.
342	342	312 Section 335. Producer payments. In accordance with the provisions of this section and the
343	343	313regulations promulgated by the department, no later than thirty (30) days after the approval of the
344	344	314producer responsibility plan under section 334, and quarterly thereafter, a producer shall make
345	345	315payments to the organization to be deposited into the producer responsibility fund under section
346	346	316337, based on the amount of each type of covered material sold, offered for sale or distributed for
347	347	317sale in or into the commonwealth by the producer and not managed under an approved
348	348	318alternative collection program. The department shall promulgate regulations under section 342
349	349	319setting forth the manner in which such payments must be calculated. Payments must include a
350	350	320producer’s share of administrative, enforcement, education and infrastructure costs, and must
351	351	321reflect the per ton costs associated with collection, processing, transportation and recycling or
352	352	322disposal of covered materials; the costs associated with increasing access to reuse and recycling
353	353	323of covered materials; and other criteria as determined by paragraph (b) of section 342. In total,
354	354	324payments made by producers to the organization shall be sufficient to cover all expenditures
355	355	325under section 337.
356	356	326 Section 336. Annual reporting by producers. Beginning no later than 180 days after the
357	357	327approval of the producer responsibility plan under section 334, and in conjunction with payments
358	358	328made pursuant to section 335, a producer shall annually report to an organization the total tons of 17 of 32
359	359	329each type of packaging material sold, offered for sale or distributed for sale in or into the
360	360	330commonwealth by the producer in the prior calendar year and the methods for determining the
361	361	331reported amounts; the characteristics of that packaging material that are relevant to the fee
362	362	332adjustment criteria as determined by the department by rule in accordance with paragraph (b),
363	363	333section 342; and a list of all of the producer's brands associated with that packaging material.
364	364	334 Section 337. Producer responsibility fund; authorized expenditures. In accordance with
365	365	335the provisions of this section and the regulations promulgated by the department, the
366	366	336organization or coordinating body shall establish and manage a producer responsibility fund. The
367	367	337organization shall deposit into the fund all payments received from producers in accordance with
368	368	338section 335 and shall expend those funds for the following uses:
369	369	339 (a) To reimburse participating collectors in accordance with section 341.
370	370	340 (b) To fund the actual operating costs of the organization, which may not exceed the
371	371	341estimated operating costs indicated in the plan approved by the department pursuant to section
372	372	342341, and which must be verified through a third-party audit paid for by the stewardship
373	373	343organization.
374	374	344 (c) To pay into the sustainable packaging trust all applicable fees required by the
375	375	345department under section 342(e).
376	376	346 (d) To make investments in education and infrastructure that support the recycling of
377	377	347covered material in the commonwealth, which are directly supported by producer payments for
378	378	348covered materials and must be approved by the department prior to any such expenditures, and
379	379	349which must incorporate input from producers, facilities, and participating collectors. Of the
380	380	350expenditures from the producer responsibility fund for a fiscal year, the organization shall ensure 18 of 32
381	381	351that not less than two (2) percent is used for education and not less than eight (8) percent is used
382	382	352for infrastructure described under this section and in compliance with the approved producer
383	383	353responsibility plan under section 334.
384	384	354 (1) The organization shall submit any proposed expenditure under this paragraph to the
385	385	355advisory committee for approval prior to making such expenditure.
386	386	356 (2) The department shall promulgate regulations setting approval criteria for the
387	387	357evaluation of proposed expenditures under this paragraph.
388	388	358 (3) The department shall approve or deny a proposed expenditure under this paragraph
389	389	359within 90 days of receipt of the proposal.
390	390	360 (e) To fulfill any other obligation required by the producer responsibility plan, including
391	391	361representative audits of covered materials from materials recovery facilities, solid waste
392	392	362facilities, and litter.
393	393	363 (f) Expenditures from the producer responsibility fund shall be used only for the uses
394	394	364described in this section; and shall not be used to pay penalties imposed under section 342, or
395	395	365any costs associated with litigation against the commonwealth.
396	396	366 (g) If for any reason secs 330 to 345 are repealed, or the producer responsibility
397	397	367organization ceases operation, the entire fund balance shall be transferred by the organization to
398	398	368the commonwealth of Massachusetts to be deposited into the sustainable packaging trust.
399	399	369 Section 338. Alternative collection program. In accordance with the requirements of this
400	400	370section and the regulations promulgated by the department, a producer or group of producers
401	401	371may develop and operate an alternative collection program to collect and manage a type or types 19 of 32
402	402	372of covered material sold, offered for sale or distributed for sale in or into the commonwealth by
403	403	373the producer or producers. A producer that manages a type of covered material under an
404	404	374approved alternative collection program through reduction, reuse, recycling or, where approved
405	405	375by the department, management of that covered material through incineration may wholly or
406	406	376partially offset the producer's payment obligations under the packaging and paper product
407	407	377program with respect to that same type of covered material only.
408	408	378 (a) Once a producer responsibility organization or coordinating body has a plan approved
409	409	379by the department for the creation of a packaging and paper products program, a producer or
410	410	380group of producers seeking to implement an alternative collection program shall submit a
411	411	381proposal for the establishment of that program to the department for approval. The department
412	412	382shall provide an opportunity for public review and comment on the proposal or deny the proposal
413	413	383within ninety (90) days of receipt. The department may approve an alternative collection
414	414	384program for a term of five (5) years and, at the expiration of such term, the producer or group of
415	415	385producers operating the program may submit an updated proposal to the department for approval.
416	416	386 (b) In determining whether to approve a proposed alternative collection program, the
417	417	387department shall consider:
418	418	388 (1) Whether the alternative collection program will provide convenient, free, statewide
419	419	389collection opportunities for the types of packaging material to be collected under that program.
420	420	390 (2) To what extent the alternative collection program intends to manage those types of
421	421	391covered material to be collected under the program through reduction, reuse for an original
422	422	392purpose, through recycling or through disposal at an incineration facility. The department may
423	423	393not approve an alternative collection program that proposes management of a covered material 20 of 32
424	424	394type through disposal at an incineration facility unless that covered material is not readily
425	425	395recyclable as defined by the department pursuant to section 342 and the program proposes a
426	426	396process to begin reuse or recycling of that type of covered material within a period of 3 years or
427	427	397less. The program shall ensure that a combined reduction and recycling rate is achieved of no
428	428	398less than sixty-five (65) percent by weight by July 1, 2027, no less than eighty (80) percent by
429	429	399weight by July 1, 2031, and no less than one hundred (100) percent by weight by July 1, 2035 of
430	430	400covered materials managed by the organization.
431	431	401 (3) Whether the education and outreach strategies proposed for the alternative collection
432	432	402program can be expected to significantly increase consumer awareness of the program
433	433	403throughout the commonwealth.
434	434	404 (4) How the alternative collection program intends to accurately measure the amount of
435	435	405each covered material type collected, reused, recycled, disposed at an incineration facility or
436	436	406otherwise managed under the program.
437	437	407 (5) To what extent the alternative collection program may disproportionately impact one
438	438	408community over another.
439	439	409 (c) A proposed modification to an approved alternative collection program must be
440	440	410submitted to the department for written approval. The department shall approve or deny a
441	441	411proposed modification based on application of the criteria described in paragraph (b).
442	442	412 (d) A producer or producers managing an approved alternative collection program shall
443	443	413report annually and concurrent with the reporting required by section 339 to the organization and
444	444	414to the department the following information: 21 of 32
445	445	415 (1) The total tons of each type of covered material collected, reused, recycled, disposed at
446	446	416an incineration facility or otherwise managed under the alternative collection program in the
447	447	417prior twelve months, including a breakdown of the total tons of each type of material to be
448	448	418credited to each producer participating in the alternative collection program.
449	449	419 (2) A list of the collection opportunities in the commonwealth for the types of covered
450	450	420material managed under the alternative collection program that were made available in the prior
451	451	421twelve months.
452	452	422 (3) A description of the education and outreach strategies implemented by the alternative
453	453	423collection program in the prior calendar year to increase consumer awareness of the program
454	454	424throughout the commonwealth.
455	455	425 (4) Progress toward reducing the disposed tons of the material.
456	456	426 (5) Any additional information required by the department.
457	457	427 (e) No later than thirty (30) days after the approval of an alternative collection program
458	458	428under this section, and quarterly thereafter, a producer or producers participating in an approved
459	459	429alternative collection program shall make a payment into the sustainable packaging trust for the
460	460	430department’s administrative costs of operating the program as determined by the department
461	461	431pursuant to section 342(f).
462	462	432 (f) If the department determines that an approved alternative collection program is not
463	463	433operating in a manner consistent with the proposal approved under this section or the provisions
464	464	434of this section, the department shall provide written notice to the producer or producers operating
465	465	435the alternative collection program regarding the nature of the deficiency, the actions necessary to 22 of 32
466	466	436correct the deficiency and the time by which such actions must be implemented. If the
467	467	437department determines that the producer or group of producers have failed to implement the
468	468	438actions described in the written notice within the required time frame, the department shall notify
469	469	439the producers or group of producers as well as the producer responsibility organization or
470	470	440coordinating body in writing that the producer or group of producers are ineligible to offset
471	471	441payment obligations under the packaging and paper product program based on covered material
472	472	442managed under the alternative collection program. The department may also bring enforcement
473	473	443actions against the producer or group of producers under section 343.
474	474	444 Section 339. Annual reporting by producer responsibility organization. The producer
475	475	445responsibility organization shall submit an annual report to the department on a regular schedule
476	476	446determined by the department for the preceding calendar year the program was in operation,
477	477	447which shall include:
478	478	448 (a) Contact information for the producer responsibility organization.
479	479	449 (b) A list of participating producers and the brands of products associated with those
480	480	450producers.
481	481	451 (c) The total amounts of each type of covered material sold, offered for sale or distributed
482	482	452for sale in or into the commonwealth by each participating producer as reported in accordance
483	483	453with section 336.
484	484	454 (d) As applicable, the total amount of each type of packaging material collected and
485	485	455managed by each participating producer through alternative collection programs approved by the
486	486	456department under section 338 23 of 32
487	487	457 (e) A complete accounting of payments made to and by the organization during the prior
488	488	458calendar year, as determined by an independent financial audit, as performed by an independent
489	489	459auditor, including information on how the organization determined the amount of such payments
490	490	460in conformance with regulations promulgated in accordance with section 342.
491	491	461 (f) A copy of the independent audit described in paragraph (e).
492	492	462 (g) A list of producers not participating in the program that are required to participate in
493	493	463the program and any product specific non-compliance, if known by the organization.
494	494	464 (h) A description of education and infrastructure investments made by the organization in
495	495	465prior calendar years and how those expenditures quantifiably increased access to recycling and
496	496	466reuse of covered materials throughout the commonwealth.
497	497	467 (i) An updated assessment schedule, as required under paragraph (h) of section 333.
498	498	468 (j) Results of representative inbound and outbound audits of recyclable material
499	499	469processed and sold by materials recycling facilities in the commonwealth, waste characterization
500	500	470of municipal solid waste being disposed of in the commonwealth, and litter audits.
501	501	471 (k) Progress toward any program goals determined in the producer responsibility plan.
502	502	472 (l) Any other information the department determines to be appropriate.
503	503	473 Section 340. Requirements for collector reimbursements. In accordance with the
504	504	474provisions of this section and the regulations promulgated by the department, a collector may
505	505	475elect to, but is not required to, participate in the program under secs. 330 to 345. All collectors
506	506	476shall provide collection and recycling of covered recyclables to all residential units and schools
507	507	477to which they provide service. The producer responsibility organization(s) or coordinating body 24 of 32
508	508	478shall reimburse participating collectors for incurred net costs associated with collection,
509	509	479processing, transportation and recycling or disposal of covered materials from all residential
510	510	480units and schools and shall ensure that, in the event no collector has elected to participate in the
511	511	481program in a given jurisdiction, convenient, equitable and free access to recycling services is
512	512	482available to residential units and schools within that jurisdiction. Participating collectors shall not
513	513	483charge fees to residential units or schools for reimbursable costs.
514	514	484 (a) To be eligible for reimbursement of costs under sections 341 as a participating
515	515	485collector, a collector must provide for the collection and recycling of covered materials that are
516	516	486generated by all residential and school generators using its service and that are readily recyclable
517	517	487as listed regularly by the department and that are not collected by an alternative collection
518	518	488program in accordance with section 338, must annually report to the organization or coordinating
519	519	489body all information necessary for the organization or coordinating body to determine the
520	520	490collector’s incurred net costs associated with collection, processing, transportation and recycling
521	521	491or disposal of recyclable material and of municipal solid waste.
522	522	492 (b) A collector shall report the information described in paragraph (a) to the organization
523	523	493or coordinating body on a form provided by or approved by the department.
524	524	494 (c) Two or more municipalities, a regional refuse district or association, a municipally
525	525	495owned processing facility or quasi-municipal entity that manages materials on behalf of a
526	526	496municipality may elect to jointly report to the organization and jointly receive reimbursement
527	527	497payments from the stewardship organization.
528	528	498 Section 341. Calculation and disbursement of collector reimbursements. In accordance
529	529	499with the provisions of this section and regulations promulgated by the department, the 25 of 32
530	530	500organization or coordinating body shall calculate and make reimbursement payments from the
531	531	501fund to participating collectors to reimburse those collectors for incurred costs associated with
532	532	502collection, processing, transportation and recycling of covered materials from all residential units
533	533	503and schools.
534	534	504 (a) In accordance with the regulations promulgated by the department pursuant to section
535	535	505342, the organization or coordinating body shall determine the amount of reimbursements to
536	536	506participating collectors under this section based on the following information:
537	537	507 (1) Information provided by participating collectors to the organization or coordinating
538	538	508body in accordance with section 340 regarding the incurred net costs associated with collection,
539	539	509processing, transportation and recycling or disposal of recyclable material.
540	540	510 (2) Information provided to the department by facilities pursuant to paragraph (f) of
541	541	511section 342 and made available by the department to the organization or coordinating body,
542	542	512including the tons of readily recyclable material received by each facility from each collector, the
543	543	513tons of processed readily recyclable material sold by each facility, and any revenue received.
544	544	514 (3) Information obtained by the organization or coordinating body through the audits of
545	545	515facilities that process readily recyclable material generated in the commonwealth as required in
546	546	516the approved plan under section 333.
547	547	517 (4) Any other information specified by the department by rule.
548	548	518 (b) In accordance with regulations promulgated by the department, the organization or
549	549	519coordinating body shall use the information described in paragraph (a) to determine the total tons
550	550	520of each covered material type recycled by all collectors at each recycling establishment and the 26 of 32
551	551	521percentage of those total tons attributable to each participating collector. In the case of two or
552	552	522more municipalities that jointly send recyclable material to a recycling establishment, the
553	553	523organization shall assume that an equal amount of the jointly sent material is attributable to each
554	554	524resident of each municipality unless those municipalities by agreement identify an unequal per
555	555	525capita division of that jointly sent material for the purposes of this section.
556	556	526 Section 342. Administration and enforcement; rulemaking; fees; additional department
557	557	527responsibilities. The department shall administer and enforce this section and shall promulgate
558	558	528regulations as necessary to implement, administer and enforce this section. All regulations
559	559	529developed under this section shall be promulgated no later than six months after the passage of
560	560	530this act.
561	561	531 (a) The department shall develop a material cost differentiation system with which the
562	562	532producer responsibility organization or coordinating body will calculate material costs for
563	563	533collector reimbursements and producer payments. The material cost differentiation mechanism
564	564	534shall be based on the net cost of residential curbside collection or transfer station operation, on-
565	565	535site processing cost for each readily recyclable covered material types, management cost of non-
566	566	536readily recyclable covered materials, transportation cost for each covered material, and any other
567	567	537cost factors as determined by the department. Cost calculations shall take into consideration
568	568	538revenue generated from recyclable materials and must incentivize operational efficiency and
569	569	539contamination reduction.
570	570	540 (b) The department shall regularly publish a schedule of adjustments to be used by the
571	571	541producer responsibility organization in determining the amount of producer payments required
572	572	542under section 335. The schedule of adjustments shall apply to both readily and non-readily 27 of 32
573	573	543recyclable covered materials as defined in paragraph (c), and shall be used to individually adjust
574	574	544the fees assessed for each category of covered material as defined in paragraph (d). To minimize
575	575	545the extraction, manufacture, use, and end-of-life-management impacts of covered materials, the
576	576	546schedule of adjustments must be structured to incent:
577	577	547 (1) Covered material waste reduction.
578	578	548 (2) Reuse and lifespan extension of packaging.
579	579	549 (3) Use of readily recyclable materials to manufacture covered materials.
580	580	550 (4) Increased use of post-consumer recycled content material in covered materials so long
581	581	551as it does not increase the toxicity of the packaging material.
582	582	552 (5) Reduced use of toxic substances in covered materials, which raise the lifecycle
583	583	553environmental and societal costs of packaging.
584	584	554 (6) The use of the minimum quantity of packaging necessary to effectively deliver a
585	585	555product without damage or spoilage.
586	586	556 (7) Single-material packaging with clear recycling or disposal instructions for consumers,
587	587	557and other design characteristics that reduce contamination in recycling.
588	588	558 (8) Domestic processing of covered materials.
589	589	559 (9) Minimal life cycle impact of covered materials.
590	590	560 (c) The department shall regularly publish a list of readily recyclable materials,
591	591	561developed through coordination with the producer responsibility organization and material
592	592	562recovery facilities or other entities managing covered materials. The department shall provide for 28 of 32
593	593	563a transitional period between the time that a type of covered material is determined to be readily
594	594	564recyclable or to not be readily recyclable and the time that such determinations will be effective
595	595	565for the purposes of determining producer payments and collector reimbursements in accordance
596	596	566with secs. 330 to 345. The department may amend the list of readily recyclable materials as
597	597	567needed.
598	598	568 (d) The department shall coordinate with the producer responsibility organization to
599	599	569establish categories of covered materials. The covered material categories shall group covered
600	600	570materials that have similar properties such as chemical composition, shape, or other
601	601	571characteristics, including, but not limited to: rigid or flexible plastics made of polyethylene
602	602	572terephthalate (PET), polyethylene (PE), polyvinyl chloride (PVC), polypropylene (PP),
603	603	573polystyrene (PS), poly coated fiber, multi-layered plastics, other (BPA, Compostable Plastics,
604	604	574Polycarbonate and LEXAN); metal, such as aluminum, tin, and steel; paper; cartons; and glass.
605	605	575 (e) Beginning at the time that the producer responsibility organization is required to
606	606	576submit its first annual report to the department, the department shall submit to the producer
607	607	577responsibility organization, and quarterly thereafter, all costs incurred in the administration of the
608	608	578packaging and paper products program, including oversight, issuance of any regulations,
609	609	579planning, plan review, including proposed modifications to the plan under section 334,
610	610	580compliance, enforcement, and sufficient staff positions to administer the program. All funds shall
611	611	581be deposited in the sustainable packaging trust.
612	612	582 (f) Beginning at the time that a producer or producers managing an alternative collection
613	613	583program are required to submit the first annual report to the department pursuant to section
614	614	584338(d), the department shall submit to the producer or producers, and quarterly thereafter, all 29 of 32
615	615	585costs incurred in the administration of the alternative collection program, including oversight,
616	616	586issuance of any regulations, planning, plan review, including proposed modifications to the plan
617	617	587under section 338, compliance, enforcement, and sufficient staff positions to administer the
618	618	588program. All funds shall be deposited in the sustainable packaging trust.
619	619	589 (f) Beginning one (1) year after passage of secs. 330 to 345, the department shall
620	620	590establish a toxic substances list, and may reference existing toxic or hazardous substances lists
621	621	591created by other state agencies and the Interstate Chemicals Clearinghouse. Any person may
622	622	592petition the department to add a chemical or chemical class substance to the list based on
623	623	593scientific evidence. The department shall review and update the list of toxic substances at least
624	624	594every three years.
625	625	595 (g) Upon request by the department, the organization shall provide a list of producers that
626	626	596are participating in the program and are compliant with the program's requirements and, if
627	627	597known to the organization, a list of producers that are not participating in the program and are
628	628	598not compliant with the program's requirements.
629	629	599 (h) Based on the information provided to the department under paragraph (g) and any
630	630	600other information considered by the department, the department shall make available on its
631	631	601publicly accessible website a regularly updated list of producers that the department has
632	632	602determined are compliant with all applicable requirements of this section and a list of producers
633	633	603and, where applicable, specific products that the department has determined are not compliant
634	634	604with all applicable requirements of this section. The department shall conduct outreach to
635	635	605retailers to ensure that retailers are aware of the information made available under this paragraph
636	636	606and any changes to that information. 30 of 32
637	637	607 Section 343. Enforcement. Within eighteen (18) months of the passage of this chapter, no
638	638	608producer, distributor, retailer, or other responsible party for a covered material shall sell, offer for
639	639	609sale, use, or distribute any covered material to any person in the commonwealth if the producer
640	640	610of such materials is not in compliance with all applicable parts of secs. 330 to 345.
641	641	611 (a) Any producer, distributor, retailer, or other responsible party that violates this section
642	642	612shall be subject to a fine for each violation and for each day that the violation occurs in an
643	643	613amount of not more than $200,000.
644	644	614 (b) The department may bring a civil action to enjoin the sale, distribution, or importation
645	645	615into the commonwealth of a covered material in violation of this part.
646	646	616 (c) The penalties provided for in this section may be recovered in a civil action brought in
647	647	617the name of the People of the Commonwealth of Massachusetts by the Commonwealth’s
648	648	618Attorney General. Any funds collected under this section in an action in which the Attorney
649	649	619General has prevailed shall be deposited in the sustainable packaging trust.
650	650	620 Section 344. Antitrust laws. A producer or producer responsibility organization,
651	651	621including a producer's or organization's officers, members, employees and agents that organize a
652	652	622packaging and paper product program or an alternative collection program under secs. 330 to
653	653	623345, is immune from liability for the producer's or organization’s conduct under state laws
654	654	624relating to antitrust, restraint of trade, unfair trade practices and other regulation of trade or
655	655	625commerce only to the extent necessary to plan and implement the producer's or organization’s
656	656	626packaging and paper product program or alternative collection program consistent with the
657	657	627provisions of secs. 330 to 345. 31 of 32
658	658	628 Section 345. Proprietary information. Proprietary information submitted to the
659	659	629department pursuant to the requirements of secs. 330 to 345 or the rules adopted pursuant to secs.
660	660	630330 to 345 that is identified by the submitter as proprietary information is confidential.
661	661	631 SECTION 2. Chapter 10 of the General Laws is hereby amended by inserting after
662	662	632section 35DDD the following section:
663	663	633 Section 35EEE. Sustainable packaging trust. There shall be established an expendable
664	664	634trust to be known as the sustainable packaging trust. Amounts deposited in the trust shall be used
665	665	635for department administration of the packaging and paper product program or an alternative
666	666	636collection program developed under secs. 330 to 345 of chapter 94 of the Massachusetts General
667	667	637Laws, and for other uses described in this section. Proceeds of the trust shall be invested by the
668	668	638treasurer and shall be under the care and custody of the commissioner of the department of
669	669	639environmental protection, in consultation with the committee established in paragraph (c) of
670	670	640section 332 of Chapter 94 of the Massachusetts General Laws. Interest earnings on funds
671	671	641deposited in said trust shall be credited to and become part of the trust. Proceeds from the trust
672	672	642shall be expended by said commissioner without further appropriation to cover administrative
673	673	643costs for the implementation and enforcement of this section, including oversight, issuance of
674	674	644any regulations, planning, plan review, review of proposed modifications to a plan developed
675	675	645under sections 334 or 338 of Chapter 94 of the Massachusetts General Laws, compliance,
676	676	646enforcement, and adequate staff positions to administer the packaging and paper products
677	677	647program or an alternative collection program. Adequate department staff positions shall include
678	678	648but not be limited to five (5) FTE positions: one managerial position, three compliance and
679	679	649enforcement positions, and one administrative position. 32 of 32
680	680	650 (a) Any funds collected under section 343 of chapter 94 of the Massachusetts General
681	681	651Laws in an action in which the Attorney General has prevailed shall be deposited in the trust, and
682	682	652shall be used to administer grants and loans to businesses, non-profits and collectors, as defined
683	683	653in section 330 of chapter 94 of the Massachusetts General Laws, to reduce environmental
684	684	654impacts related to the collection and recycling of the covered material category for which the
685	685	655penalty was exacted.
686	686	656 (b) The commissioner of environmental protection shall cause to be filed with the chairs
687	687	657of the house and senate committees on ways and means an annual report regarding the revenues
688	688	658and expenditures provided from the trust.