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