2023 -- S 0200
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LC000974
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S TATE OF RHODE IS LAND
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2023
____________
A N A C T
RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RESPONSIBIL ITY
FOR PACKAGING
Introduced By: Senators Valverde, Gu, Sosnowski, Lawson, Raptakis, DiMario, Miller,
Ujifusa, and Mack
Date Introduced: February 16, 2023
Referred To: Senate Environment & Agriculture
It is enacted by the General Assembly as follows:
SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby 1
amended by adding thereto the following chapter: 2
CHAPTER 99 3
EXTENDED PRODUCER RESPONSIBILITY FOR PACKAGING 4
23-99-1. Findings -- Purpose. 5
(a) Towns and cities in Rhode Island bear much of the burden of recycling and disposing 6
of post-consumer waste; however, they have little control over sources of waste, particularly 7
packaging waste. 8
(b) Unrecyclable single-use packaging is a common contaminant in recycling loads in 9
Rhode Island. Recycling loads rejected from the Rhode Island resource recovery materials 10
recycling facility contribute to waste and recycling costs borne by towns and cities. 11
(c) Rhode Island’s central landfill is projected to reach capacity by 2034. Single-use 12
packaging makes up approximately sixteen percent (16%) of the waste buried in the landfill each 13
year. 14
(d) Single-use plastic packaging is a significant contributor to litter and ocean debris. As 15
of 2022, more than sixteen million tons (16,000,000 tt) of plastic waste washes into the ocean each 16
year. 17
(e) Single-use packaging has significant environmental impacts on a local and global scale, 18
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including polluting our waters, contributing to climate-damaging emissions, and creating litter. 1
(f) It is in the best interests of the health, safety, and welfare of residents and visitors to 2
Rhode Island to protect our environment and natural resources by reducing non-reusable, non-3
recyclable, and toxic packaging and to achieve a more equitable relationship between packaging 4
producers and local governments and communities. 5
23-99-2. Definitions. 6
As used in this chapter: 7
(1) "Auditor general" means the person appointed pursuant to § 22-13-1 to carry out the 8
duties specified in § 22-13-4. 9
(2) "Beverage container" means a container used to contain all drinks in liquid form and 10
intended for human consumption. 11
(3) "Bio-plastic" or "bio-plastics" means plastic produced from biological sources such as 12
vegetable fats and oils, polysaccharides, sugar, proteins, or other materials that are designed to be 13
biodegradable. 14
(4) "Brand" means any mark, word, name, symbol, design, device, or graphical element or 15
a combination thereof, including a registered or unregistered trademark, that identifies and 16
distinguishes a product from other products. 17
(5) "Commissioner" means the commissioner of the department of environmental 18
management. 19
(6) "Department" means the Rhode Island department of environmental management. 20
(7) "Discarded/discards" means packaging material that has been used for its intended 21
purpose and is no longer needed by consumers, businesses, institutions, and other users, and can be 22
managed through reuse, recycling, or disposal. 23
(8) "Disposal" means the landfilling or incineration of packaging material. "Disposal" shall 24
also include energy recovery or energy generation by any means, including, but not limited to, 25
combustion, pyrolysis, gasification, solvolysis, thermal desorption, waste to fuel, or any other 26
chemical conversion process, or molecular conversion process. "Disposal" shall also include the 27
use of materials as landfill cover. 28
(9) "Environmental justice community" means any neighborhood or community which is 29
composed predominantly of persons of color or persons below the poverty line, that is subject to a 30
disproportionate burden of environmental hazards. 31
(10) "Inspector general" means the individual appointed pursuant to § 23-99-14. 32
(11) "Local government" means any municipal corporation, governmental subdivision of 33
the state, local government unit, special district, school, local or regional board, commission, or 34
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authority authorized by law to plan or provide for waste management services for a specific 1
geographical area. 2
(12) "Packaging" or "packaging material" means a discrete material or category of material, 3
regardless of recyclability, including, but not limited to, such material types as paper, plastic, glass, 4
metal, or multi-material, that is used for the containment, protection, handling, delivery, transport, 5
distribution, or presentation of another product that is sold, offered for sale, imported, or distributed 6
in the state. 7
"Packaging" and "packaging material" do not include: 8
(i) "Medical devices and packaging" which are included with products regulated as a drug, 9
medical device, or dietary supplement by the United States Food and Drug Administration under 10
the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 321 et seq., Sec. 3.2(E) of 21 U.S. Code 11
of Federal Regulations, or the Dietary Supplement Health and Education Act; 12
(ii) "Animal biologics", including vaccines, bacterins, antisera, diagnostic kits, and other 13
products or biological origin, and other covered materials regulated by the United States 14
Department of Agriculture under the Virus, Serum, Toxin Act, 21 U.S.C. Sec. 151-159; 15
(iii) Packaging regulated by the federal Insecticide, Fungicide, and Rodenticide Act, 7 16
U.S.C. Sec. 136 et seq. or other applicable federal law, rule, or regulation; and 17
(iv) Beverage containers subject to a returnable container deposit, if applicable. 18
(13) "Packaging reduction organization" means the nonprofit entity or entities contracted 19
by the department and authorized to collect producer fees, assist producers with compliance with 20
the requirements of this chapter, provide technical assistance to producers, and implement the 21
packaging reduction and recycling program. 22
(14) "Packaging reduction and recycling program" or "program" means the program 23
implemented by the packaging reduction organization, and overseen by the department, to reduce 24
packaging, assess and collect information and payments from producers based on the amount of 25
packaging used by the producer to contain, protect, deliver, present, or distribute their products, in 26
order to pay for the development of packaging reduction programs including, but not limited to, 27
reusable and refillable packaging systems and infrastructure, reimbursements to local government 28
to cover the cost of packaging recycling, and investments in education and outreach. 29
(15) "Post-consumer recycled material" means new material produced using material 30
resulting from the recovery, separation, collection and reprocessing of material that would 31
otherwise be disposed of or processed as waste and that was originally sold for consumption. "Post-32
consumer recycled material" does not include post-industrial material or pre-consumer material, or 33
material generated by means of advanced recycling, chemical recycling, combustion, gasification, 34
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incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-fuel, or any other 1
chemical or molecular conversion process. 2
(16) "Producer" means: 3
(i) A person or entity that manufactures or uses in commercial enterprise a product sold, 4
offered for sale, contained, protected, delivered, presented, or distributed in or using packaging into 5
the state under the brand of the manufacture; or 6
(ii) If subsection (16)(i) of this section does not apply, a person or entity that is not the 7
manufacturer of the product, but is the owner or licensee of a trademark, regardless of whether the 8
trademark is registered, under which a product is sold, offered for sale, contained, protected, 9
delivered, presented, or distributed in or using packaging; or 10
(iii) If subsections (16)(i) and (16)(ii) of this section do not apply, a person or entity that 11
imports a product that is contained, protected, delivered, or presented in packaging, into the United 12
States or the state for use in commercial enterprise in the state; or 13
(iv) An entity that manufactures or uses in a commercial enterprise, sells, offers for sale, 14
or distributes the packaging material in the state under the brand of the manufacturer; and 15
(v) "Producer" includes a franchisor of a franchise located in the state but does not include 16
the franchisee operating that franchise. 17
(17) "Product line" means a group of related products all marketed under a single brand 18
name that is sold by the same producer to distinguish products from each other for better usability 19
for customers. 20
(18) "Recyclable" means a product or packaging material: 21
(i) That can be sorted by entities that process post-consumer materials generated in the 22
state; 23
(ii) That has a consistent regional market for purchase by end users in the production of 24
new products; and 25
(iii) Which can be recycled with minimal losses of material during processing and 26
manufacturing. Whether a product or packaging type meets these criteria shall be determined by an 27
annual review process as described in § 23-99-6. 28
"Recyclable" does not include material processed through advanced recycling, chemical 29
recycling, combustion, gasification, incineration, pyrolysis, solvolysis, thermal desorption, waste-30
to-energy, waste-to-fuel, or any other chemical or molecular conversion process. 31
(19) "Recycled" means the use of discarded packaging materials or products in the 32
production of a new product or packaging in place of virgin materials. Material will not be 33
considered "recycled" if it is used as landfill cover. "Recycled" material does not include 34
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contaminants, residues, and other process losses. 1
(20) "Recycling" means the series of activities by which material is: 2
(i) Collected, transported, sorted, and processed; 3
(ii) Used in industrial feedstocks in place of virgin materials to manufacture new products 4
with minimal loss of material quality and quantity, as determined through the process set forth in § 5
23-99-6. "Recycling" does not include energy recovery or energy generation by any means, 6
including, but not limited to, advanced recycling, chemical recycling, combustion, gasification, 7
incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-fuel, or any other 8
chemical or molecular conversion process. It also does not include landfill disposal of discarded 9
material or discarded product component materials, including the use of materials as landfill cover. 10
(21) "Recycling rate" means the percentage of any given packaging type that is ultimately 11
recycled. The recycling rate for any packaging material shall be calculated as the total weight of 12
packaging that is recycled in a given year divided by the total weight of packaging generated. 13
Material losses (contaminants and residues) accruing during collection, processing and 14
manufacturing new products do not count as recycled and should not be in the numerator of the 15
equation. 16
(22) "Reuse" means the return of packaging back into the economic stream for use in the 17
same kind of application intended for the original packaging, without effectuating a change in the 18
original composition of the package, the identity of the product, or the components thereof. 19
(23) "Reuse and refill system" means a program or set of mechanisms designed to facilitate 20
multiple uses of packaging. Mechanisms may include, but are not limited to, deposits, incentives, 21
curbside collection, collection kiosks, refill stations, dishwashing facilities, and re-distribution 22
networks. 23
(24) "Reusable or refillable packaging and containers" means packaging material and 24
containers that are specifically designed and manufactured to maintain its shape and structure, and 25
be materially durable for repeated sanitizing, washing, and reuse. 26
(25) "Toxic substance" means a chemical or chemical class identified by a state agency, 27
federal agency, international intergovernmental agency, accredited research university, or other 28
scientific entity deemed authoritative by the department on the basis of credible scientific evidence 29
as being one or more of the following: 30
(i) A chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant, 31
immunotoxin, neurotoxicant, or endocrine disruptor; 32
(ii) A chemical or chemical class that is persistent or bioaccumulative; 33
(iii) A chemical or chemical class that may harm the normal development of a fetus or child 34
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or cause other developmental toxicity in humans or wildlife; 1
(iv) A chemical or chemical class that may harm organs or cause other systemic toxicity; 2
(v) A chemical or chemical class that may have adverse air quality impacts, adverse 3
ecological impacts, adverse soil quality impacts, or adverse water quality impacts; or 4
(vi) A chemical or chemical class that the department has determined has equivalent 5
toxicity to the criteria listed in this definition. 6
(26) "Unit" means each discrete component of a package or container, including material 7
that is used for the containment, protection, handling, delivery, transport, distribution, and 8
presentation of a product that is sold, offered for sale, imported, or distributed in the state, including 9
through Internet transactions. 10
(27) "Universal Product Code" or "UPC" means a standard for encoding a set of lines and 11
spaces that can be scanned and interpreted into numbers for product identification purposes. 12
"Universal product code" includes any industry-accepted barcode used for product identification 13
purposes in a manner similar to a UPC, including, but not limited to, a European Article Number. 14
23-99-3. Packaging reduction and recycling program. 15
(a) This chapter establishes a packaging reduction and recycling program by which 16
producers who sell, offer for sale, or distribute products contained, protected, delivered, presented, 17
or distributed in packaging shall pay fees based on the quantity and type of packaging used in the 18
state. The fees shall be used to fund the administration of this program. Producers shall also be 19
required to make changes to the design of their products in order to meet packaging reduction and 20
recycling requirements. 21
(b) The department shall contract with a 501(c)(3) nonprofit, to act as the packaging 22
reduction organization, which shall collect packaging reduction, generation, and recycling 23
information and fee payments, as described in § 23-99-9, from participating producers. The 24
payments collected from producers shall be deposited into the packaging reduction fund to 25
reimburse local governments for the costs associated with reducing and managing packaging waste, 26
reimburse the department for their administration of the program, and to support eligible projects 27
that reduce packaging waste by investing in packaging reduction and elimination, reuse and refill 28
systems and programs, recycling infrastructure, and comprehensive multi-media educational 29
programs. 30
(c) No later than eighteen (18) months after the effective date of this chapter, the 31
department shall conduct a statewide packaging reduction, reuse, and recycling needs assessment 32
as described in § 23-99-8 to determine the current state of packaging reuse, recycling, and disposal, 33
and to identify barriers and opportunities to reduce the amount of packaging discarded and disposed 34
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of, and to increase the reusability and recyclability of packaging. 1
(d) The auditor general shall conduct an annual audit of the program, including, but not 2
limited to, the amount of money received; the amount of money sent to local governments; the 3
amount of money used to invest in reduction, recycling, and reuse programs and services by the 4
packaging reduction organization and any state offices; the amount of discarded packaging 5
generated, reduced, and recycled; any recommendations for improvement of the program. The audit 6
shall be a public document. 7
23-99-4. Producer responsibilities and exemptions of small producers. 8
(a) One year after the selection of the packaging reduction organization as required by § 9
23-99-5, a producer shall not sell, offer for sale, or distribute into the state a product contained, 10
protected, delivered, presented, or distributed in packaging unless the producer is: 11
(1) Registered with the packaging reduction organization; and 12
(2) In full compliance with all requirements of this chapter. 13
(b) A producer shall annually report to the packaging reduction organization: 14
(1) The total amount, by unit, of each type of packaging material sold, offered for sale, or 15
distributed for sale into the state by the producer in the prior calendar year; 16
(2) All information necessary for producer and the packaging reduction organization to 17
meet its obligations required pursuant to § 23-99-6. 18
(c) A producer shall annually submit a written statement, signed by the chief executive 19
officer, verifying the producer’s compliance with: 20
(1) The toxic substance reduction requirements of § 23-99-13; 21
(2) The packaging reduction requirements of § 23-99-11; and 22
(3) The packaging recycling requirements of § 23-99-12. 23
(d) A producer is exempt from the requirements and prohibitions of this chapter in a 24
calendar year in which: 25
(1) The producer realized less than one million dollars ($1,000,000) in total gross revenue 26
during the prior calendar year; or 27
(2) The producer sold, offered for sale, or distributed for sale products contained, protected, 28
delivered, presented, or distributed in or using less than one ton of packaging material in total during 29
the prior calendar year. 30
(e) A producer claiming an exemption under this section shall provide the department with 31
sufficient information to demonstrate that the claimant is eligible for an exemption. 32
23-99-5. Selection of the packaging reduction organization. 33
(a) Consistent with the requirements of this section, within one year after the promulgation 34
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of rules as required by § 23-99-15, the department shall select and enter into a contract with a 1
501(c)(3) nonprofit organization to act as the packaging reduction organization in order to operate 2
the packaging reduction and recycling program for a period of ten (10) years. 3
(b) Consistent with applicable competitive bidding requirements under state purchasing 4
laws and following the initial adoption of rules by the department pursuant to § 23-99-15, the 5
department shall issue a request for a proposal for the operation of the packaging reduction and 6
recycling program. The proposals shall be required to cover the ten (10) year operation of the 7
program by the successful bidder and shall be required to include, at a minimum, the following 8
information: 9
(1) A description of how the bidder will administer the packaging reduction and recycling 10
program, including the mechanisms and processes for providing assistance to producers to comply 11
with the reporting requirements of this chapter; 12
(2) The mechanisms and processes the bidder will use to compile information from 13
participating producers; 14
(3) How the bidder intends to establish and manage the packaging reduction fund, 15
including, but not limited to, public participation, the staffing the bidder intends to use for 16
management of the fund, and the plan for providing technical support to interested persons 17
regarding use of the funds; 18
(4) A financial assurance plan that ensures all funds held in the packaging reduction fund 19
are immediately and exclusively forfeited and transferred to or otherwise made immediately 20
available to the department if the packaging reduction organization contract with the department is 21
terminated by the department, or expires; 22
(5) A proposed budget outlining the anticipated costs of operating the producer 23
responsibility program, including identification of any start-up costs that will not be ongoing and a 24
description of the method by which the bidder intends to determine and collect producer payments 25
during the initial startup period; 26
(6) A certification that the bidder will not share, except with the department, information 27
provided to the bidder by a producer that is proprietary information and that is identified by the 28
producer as proprietary information. The certification shall include a description of the methods by 29
which the bidder intends to ensure the confidentiality of such information; and 30
(7) Any other additional information required by the department. 31
(c) If, at the close of the competitive bidding process set forth in this section, the department 32
determines that no bidder has submitted, in accordance with this section, a proposal that meets the 33
requirements of this section, the department shall run the program by itself or a designated state 34
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public body. 1
23-99-6. Responsibilities of the packaging reduction organization. 2
(a) The packaging reduction organization shall: 3
(1) Register all producers; 4
(2) Collect and compile data from producers as required by § 23-99-4; 5
(3) Collect fees due from producers as required by § 23-99-9; 6
(4) Reimburse the department and the auditor general for the costs associated with 7
conducting the needs assessment required by § 23-99-8; 8
(5) Distribute funds to reimburse local governments and private companies for the costs 9
associated with the implementation of reduction and refill and reuse programs, collection, 10
transportation, and recycling of packaging materials as required by § 23-99-10; 11
(6) Make recommendations to the department regarding investments toward packaging 12
reduction, reuse, and recycling as required by § 23-99-10; and 13
(7) Offer technical support to participating producers, with an emphasis on support to small 14
businesses, to assist them with compliance with the requirements of this chapter, including 15
information about procuring affordable alternatives to non-compliant packaging and reducing 16
packaging. 17
(b) Annually, the packaging reduction organization shall submit a report to the department 18
that, at a minimum, shall include the following information: 19
(1) Contract information for the packaging reduction organization; 20
(2) A list of all participating producers, brand(s), and products identified by the Universal 21
Product Code (UPC) that the producer sells, offers for sale, or distributes into the state that are 22
contained, protected, delivered, presented, or distributed in or using packaging; 23
(3) The total amount, by both weight and number of units of each type of packaging 24
material used to contain, protect, handle, deliver, transport, distribute, or present products sold, 25
offered for sale, or distributed into the state by each individual producer during the prior calendar 26
year; 27
(4) The total amount, by both weight and number of units, of each type of packaging 28
material used to contain, protect, handle, deliver, transport, distribute, or present products sold, 29
offered for sale, or distributed into the state by all producers during the prior calendar year. 30
(5) A complete accounting of all payments made to and by the packaging reduction 31
organization during the prior calendar year; 32
(6) A list of producers believed to be out of compliance with the requirements of this 33
chapter, and the reason the packaging reduction organization believes the producer to be out of 34
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compliance. Information on non-compliant companies shall be provided to the attorney general’s 1
office in a timely fashion and for possible enforcement action by that office; 2
(7) A description of the educational and outreach efforts made by the packaging reduction 3
organization in the prior calendar year, and how those efforts were designed to reduce packaging 4
waste, and increase reuse and recycling of packaging materials; 5
(8) An assessment of whether the fee structure adopted by the department pursuant to § 23-6
99-9 has been effective in incentivizing improvements to the design of packaging material, 7
including actual reduction of packaging, increases in reusable and refillable packaging, recycling 8
rates for packaging materials, and decreases in the amount of packaging; 9
(9) A description of the reimbursements and expenditures made pursuant to § 23-99-10; 10
and 11
(10) Any additional information required by the department. 12
(c) The packaging reduction organization shall conduct an annual review process to 13
determine whether products and packaging materials are recyclable. This review shall be conducted 14
in consultation with representatives of end markets, including recycled commodities brokers and 15
manufacturers who purchase post-consumer material for use in manufacturing new products. For 16
the purposes of calculating producer payments and municipal reimbursements in accordance with 17
this chapter, this annual process shall include a transitional period between the date the 18
determination is finalized and the date it goes into effect. 19
(d) The packaging reduction organization shall conduct public outreach and provide 20
consumers with educational and informational materials related to reducing the amount of 21
packaging discarded, recycled, and disposed of in the state. The outreach and education shall, at a 22
minimum, include: 23
(1) A description of the environmental, social, economic, and environmental justice impact 24
associated with improper disposal of packaging materials; 25
(2) At least three (3) public hearings in geographically diverse parts of the state each year, 26
to solicit public input on the implementation and effectiveness of this chapter and suggested 27
improvements; 28
(3) Information regarding the management of discarded packaging including reuse, 29
recycling, composting, and disposal by landfilling and incineration; 30
(4) The location and availability of curbside and drop-off collection opportunities for 31
packaging waste, including deposit and take-back programs; 32
(5) Description of the environmental, social, economic, and environmental justice impact 33
associated with failure to reuse or recycle packaging materials; 34
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(6) Information regarding municipal reimbursement for the costs associated with 1
packaging reuse, recycling, and disposal; and 2
(7) Any other information required by the department. 3
(e) The public outreach and education conducted by the packaging reduction organization 4
shall: 5
(1) Utilize all available forms of media, including, but not limited to, television, radio, 6
print, electronic, and web-based media to provide information directly to residents in the state, in 7
multiple languages; 8
(2) Be coordinated with the various local governments in the state to incorporate electronic, 9
print, web-based and social media elements that individual local governments may elect to use, at 10
their discretion, to provide education directly to their residents; 11
(3) Be provided to producers for inclusion on their packaging’s label to inform consumers 12
about the methods to responsibly reuse, recycle, or dispose of the packaging; and 13
(4) Be coordinated with other similar public outreach and education programs in the state 14
as necessary to avoid consumer confusion and facilitate the consolidation of available resources. 15
(f) In addition to engaging in the public education and outreach required by this section, 16
the packaging reduction organization shall be authorized to provide producers and retailers with 17
educational materials related to the responsible reduction, reuse, recycling, or disposal of discarded 18
packaging. The educational and informational materials provided to the retailer under this 19
subsection may include, but need not be limited to, printed materials, signage, templates of 20
materials that can be reproduced by retailers and provided thereby to consumers at the time of a 21
product’s purchase, and advertising materials that promote and encourage consumers to properly 22
reuse, recycle, or dispose of packaging materials. 23
(g) The packaging reduction organization shall not spend funds on lobbying federal, state, 24
or local governments or the making of campaign contributions to any candidates running for office. 25
23-99-7. Responsibilities of the department. 26
(a) Beginning one year after the selection of the packaging reduction organization pursuant 27
to § 23-99-5, and annually thereafter, the department shall work with the packaging reduction 28
organization to: 29
(1) Calculate the amount of packaging that was generated during the prior calendar year; 30
(2) Calculate the recycling rate for all packaging during the prior calendar year; 31
(3) Calculate the recycling rate for each packaging material type during the prior calendar 32
year; and 33
(4) Develop a list of producers believed to be out of compliance with the requirements of 34
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this chapter. 1
(b) In the event that the department determines that the packaging reduction organization 2
no longer meets the requirements of this chapter or fails to implement and administer the 3
requirements of this chapter in a manner that effectuates the purposes of this chapter, the department 4
shall revoke its approval of the packaging reduction organization and shall select a new packaging 5
reduction organization to replace it, or, in the alternative, may elect to operate the program itself. 6
(c) The department or attorney general shall take enforcement action against all non-7
compliant producers in accordance with § 23-99-16. 8
23-99-8. Statewide reduction, reuse, and recycling needs assessment. 9
(a) Consistent with applicable competitive bidding requirements, within one year after 10
promulgating the rules and regulations required to implement this chapter, and every five (5) years 11
thereafter, the department shall issue a request for proposals to conduct a statewide packaging 12
reduction, reuse, and recycling needs assessment, hereinafter "needs assessment", to identify 13
barriers and opportunities for reducing, reusing, and recycling packaging materials. The proposals 14
shall include, at a minimum, a description of how the bidder will conduct the needs assessment to 15
evaluate the following: 16
(1) The current recycling rate for each type of packaging material; 17
(2) The amount, by weight and material type, of packaging recycled at each recycling 18
facility that accepts discarded packaging generated in the state; 19
(3) The processing capacity, market conditions, and opportunities in the state and 20
regionally for recyclable materials; 21
(4) The net cost of end-of-life management of discarded packaging in the state, including 22
the cost associated with the collection, transportation, sortation, recycling, landfilling, or 23
incineration of discarded packaging; 24
(5) The availability of opportunities in the recycling, and reuse system for businesses 25
owned by women and people of color; 26
(6) Current barriers affecting recycling access and availability in the state; 27
(7) Current barriers to the marketability of recyclable materials generated in the state; 28
(8) Opportunities for the creation of packaging reuse and refill programs in the state; 29
(9) Opportunities for the improvement of packaging recycling in the state, including the 30
development of end markets for recycled packaging materials; 31
(10) Current barriers affecting the creation and implementation of packaging reuse and 32
refill programs; and 33
(11) Consumer education needs in the state with respect to packaging waste reduction, 34
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recycling, reducing contamination in recycling, and reuse and refill systems for packaging. 1
(b) After reviewing proposals, the department shall select an applicant to perform the needs 2
assessment. If, at the close of the competitive bidding process, the department determines that no 3
applicant can successfully perform the needs assessment, the department shall perform the needs 4
assessment itself, or designate another state office to do it. 5
(c) The cost incurred by the department or designee associated with conducting the needs 6
assessment shall be paid for by funds from the packaging reduction and recycling fund. 7
(d) The department shall report the results of the study to the public, the media, state 8
legislature, the governor, the auditor general and the attorney general, who are all directed to 9
coordinate enforcement of this law. 10
23-99-9. Assessment of fees. 11
(a) The department shall promulgate regulations setting forth the manner in which producer 12
payments on packaging materials shall be calculated and assessed. 13
(b) The payments shall be calculated based on the total amount, by weight, of each type of 14
packaging material used to contain, protect, deliver, present, or distribute a product sold, offered 15
for sale, or distributed into the state by the producer in the prior calendar year. 16
(c) The list of packaging material types for which there is a specific fee shall include, at a 17
minimum, the following material types: 18
(1) Polyethylene terephthalate (PET or PETE); 19
(2) High density polyethylene (HDPE); 20
(3) Polyvinyl Chloride (PVC); 21
(4) Low density polyethylene (LDPE); 22
(5) Polypropylene (PP); 23
(6) Polystyrene (PS) including expanded polystyrene; 24
(7) Other plastic resin types not specifically identified here; 25
(8) Bio-plastics; 26
(9) Paper; 27
(10) Cardboard; 28
(11) Wood; 29
(12) Glass; 30
(13) Bi-metal, steel and other ferrous metals; 31
(14) Aluminum and other non-ferrous metals; 32
(15) Mixed materials including laminates and packaging containing more than one of the 33
above materials; and 34
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(16) Any other material used for consumer packaging. 1
(d) The fees shall be designed to cover, at a minimum, the total cost associated with: 2
(1) The collection transportation, and management of each type of packaging material used 3
to contain, protect, deliver, present, or distribute products sold, offered for sale, or distributed into 4
the state by all producers; 5
(2) The department’s and other state agencies’ administration of this chapter; 6
(3) The packaging reduction organization’s administration of the packaging reduction and 7
recycling program; 8
(4) The cost associated with the development of the statewide packaging reduction, reuse, 9
and recycling needs assessment pursuant to § 23-99-8; and 10
(5) Any other factors determined by the department. 11
(e) The fees adopted under this section shall delineate criteria to be used to initially 12
establish and subsequently adjust producer payments in a manner that incentivizes: 13
(1) A reduction in the total packaging as measured by weight used by producers, and 14
discarded by consumers, businesses, institutions, and other users. Weight reductions shall not be 15
achieved by substituting plastic for other materials types; 16
(2) An increase in the proportion of a producer’s total packaging that is managed within a 17
reuse and refill system; 18
(3) An increase in the proportion of a producer’s total packaging that is deemed recyclable 19
as determined by an annual review process as described in § 23-99-6; 20
(4) An increase in the proportion of a producer’s total packaging that is ultimately recycled; 21
(5) A reduction in toxic components in packaging materials; and 22
(6) A reduction in litter from packaging materials. 23
(f) There shall be no fee assessed on packaging that is designed for reuse and refill and 24
contained within a reuse or refill system. 25
(g) The department shall update and revise the fees every three (3) years. 26
23-99-10. Packaging reduction fund. 27
(a) There is hereby established, a separate, non-lapsing, interest-bearing fund to be known 28
as the packaging reduction fund, which will be managed by the packaging reduction organization 29
with oversight from the department. 30
(b) The packaging reduction organization shall deposit into the fund all payments received 31
from producers in accordance with § 23-99-9, and all penalties collected pursuant to § 23-99-16. 32
(c) Beginning one year after the first payment of fees by producers pursuant to § 23-99-9, 33
and annually thereafter, the packaging reduction organization shall: 34
LC000974 - Page 15 of 21
(1) Retain a portion of the fees deposited into the packaging reduction fund to cover the 1
costs associated with its administration of the packaging reduction and recycling program; and 2
(2) Reimburse the department, the office of the inspector general, the office of attorney 3
general, the auditor general and all other state entities for the costs associated with administering 4
and enforcing the requirements of this chapter and its implementation regulations. This 5
reimbursement shall include costs associated with performing, revising, and updating the statewide 6
packaging reduction, reuse, and recycling needs assessment required by § 23-99-8. This 7
reimbursement shall also cover any costs incurred by the department in adopting and revising rules 8
and regulations as well as administering and enforcing the requirements of this chapter. 9
(d) Beginning one year after the first payments of fees by producers pursuant to § 23-99-10
9, and annually thereafter, the packaging reduction organization shall distribute money from the 11
packaging reduction fund to reimburse local governments for the costs incurred for the 12
management, reduction, and recycling of packaging waste, as long as the local government 13
provides recycling services to all residents, businesses, schools, and institutions in their jurisdiction. 14
Local governments that contract with private haulers and recyclers to handle the management, 15
reduction, and recycling of packaging waste are eligible for reimbursement, as long as the private 16
hauler or recycler provides recycling services to all residents, businesses, schools, and institutions 17
within the local government’s jurisdiction. Nothing in this subsection shall be interpreted as 18
allowing for the reimbursement of costs associated with the disposal of packaging. 19
(e) Beginning one year after the first payment of fees by producers pursuant to § 23-99-9, 20
and annually thereafter, the packaging reduction organization shall make all remaining funds 21
following the reimbursement and distributions required by subsections (c) and (d) of this section, 22
available for projects and programs that will help achieve the packaging reduction requirements of 23
§ 23-99-11, and the packaging recycling requirements of § 23-99-12. Annually, the money 24
allocated for projects and programs under this subsection shall be at least fifty percent (50%) of the 25
money provided to local governments pursuant to subsection (d) of this section. 26
(1) Funds may be used for investment in collection systems, transportation systems, reuse 27
systems, washing systems, redistribution systems, technology for tracking and data collection, 28
capital expenditures on new and emerging technology focused on reusable and refillable packaging, 29
as well as equipment, and facilities, and other projects determined by the department to facilitate 30
the goals and objectives of this chapter. 31
(2) Funds may also be used for investment in public outreach and education in ways that 32
increase access and participation in packaging reduction, reuse, refill, and recycling systems 33
throughout the state. 34
LC000974 - Page 16 of 21
(3) The packaging reduction organization shall prioritize investments for projects and 1
programs that will directly benefit environmental justice communities, including, but not limited 2
to, communities that are home to a landfill, incinerator, transfer station, or waste-to-energy facility. 3
(4) Any investments made pursuant to this subsection shall be approved by the department. 4
The department shall approve or deny proposed investments within ninety (90) days of receipt of 5
a proposal from the packaging reduction organization. The investments may be approved, at the 6
discretion of the department, as long as the proposed investment shall, at a minimum: 7
(i) Increase the transition of packaging from non-reusable to reduced, reusable or refillable 8
packaging; 9
(ii) Increase access to reuse and refill infrastructure in the state; 10
(iii) Increase the capacity of reuse and refill infrastructure in the state; 11
(iv) Provide reuse and refill instructions that are, to the extent practicable, consistent 12
statewide, easy to understand, translated into various commonly used languages, and easily 13
accessible; or 14
(v) Provide for outreach and education that are coordinated across programs or regions to 15
avoid confusion for residents and developed in consultation with local government and the public. 16
23-99-11. Packaging reduction requirements. 17
(a) Each individual producer is required to meet the packaging reduction requirements 18
contained in this section as follows: 19
(1) Beginning two (2) years after a producer first registers with the packaging reduction 20
organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 21
present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by ten 22
percent (10%) by weight. 23
(2) Beginning four (4) years after a producer first registers with the packaging reduction 24
organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 25
present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 26
twenty percent (20%) by weight. 27
(3) Beginning six (6) years after a producer first registers with the packaging reduction 28
organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 29
present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 30
thirty percent (30%) by weight. 31
(4) Beginning eight (8) years after a producer first registers with the packaging reduction 32
organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 33
present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 34
LC000974 - Page 17 of 21
forty percent (40%) by weight. 1
(5) Beginning ten (10) years after a producer first registers with the packaging reduction 2
organization, a producer shall reduce the amount of packaging used to contain, protect, deliver, 3
present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 4
fifty percent (50%) by weight. 5
(b) The reductions required by this section shall be measured against the total amount of 6
packaging the producer used to contain, protect, deliver, present, or distribute the products they 7
sold, offered for sale, or distributed for sale, during the first year they registered with the packaging 8
reduction organization. 9
(c) These reductions required by this section may be achieved by using the following 10
strategies: 11
(1) Elimination of packaging components; 12
(2) Reduction of packaging components; 13
(3) Using reuse and refill systems; and 14
(4) Packaging rightsizing, light weighting, and optimization. 15
(d) The reductions required by this subsection shall not be achieved by substituting plastic 16
for other materials. 17
(e) In the case of a producer that enters the market with fifty percent (50%) or more by 18
weight of its packaging being reusable and contained within a reuse and refill system, that producer 19
may apply to the department for a waiver from the packaging reduction requirements. 20
23-99-12. Packaging recycling requirements. 21
(a) Each individual producer is required to meet the packaging recycling requirements 22
contained herein. 23
(b) A producer is required to ensure that the packaging used to contain, protect, deliver, 24
present, or distribute the products they sell, offer for sale, or distribute into the state, is made of a 25
material that meets the following recycling rates: 26
(1) Not less than thirty percent (30%) within five (5) years after the effective date of this 27
chapter; 28
(2) Not less than fifty percent (50%) within eight (8) years after the effective date of this 29
chapter; and 30
(3) Not less than seventy percent (70%) within twelve (12) years after the effective date of 31
this chapter. 32
(c) The requirements of subsection (b) of this section shall not apply to reusable or refillable 33
packaging or containers. 34
LC000974 - Page 18 of 21
23-99-13. Toxic reduction requirements. 1
(a) Beginning three (3) years after the promulgation of rules and regulations pursuant to § 2
23-99-15, and every three (3) years thereafter, the department shall designate at least ten (10) toxic 3
substances or families of toxic substances that may no longer be sold, offered for sale, distributed 4
for sale, or distributed for use in packaging in this state unless it determines there are not ten (10) 5
chemicals that meet the definition of toxic substances. If the department determines there are not 6
ten (10) toxic substances that meet such a definition, it shall publish a detailed statement of its 7
findings and conclusions supporting such determination. 8
(b) Within one hundred eighty (180) days of designating a toxic substance, the department 9
shall adopt regulations to prohibit the newly designated toxic substance in packaging, with an 10
effective date no later than two (2) years after such designation. 11
(c) Any producer that violates this section shall be subject to a fine for each violation not 12
to exceed fifty thousand dollars ($50,000) per violation. For the purposes of this section, each 13
product line that is sold, offered for sale, or distributed to consumers, via retail commerce, in the 14
state, including through an Internet transaction shall be considered a violation. 15
23-99-14. Establishment of the office of inspector general. 16
(a) The director of the department shall establish and appoint a standalone independent 17
inspector general within the department. The inspector general shall administratively report to the 18
director of the department. The inspector general shall evaluate the programs created by this chapter 19
on an annual basis to ensure it is properly functioning, and the producers are following the 20
requirements of this chapter. 21
(b) The director, the inspector general or designees, shall have the authority to investigate 22
the compliance of producers with all provisions of this chapter and to bring enforcement violations 23
against non-compliant producers. 24
23-99-15. Rulemaking. 25
(a) The department may promulgate rules and regulations as necessary to implement, 26
administer, and enforce this chapter. All initial rules and regulations developed to implement the 27
provisions of this chapter shall be promulgated no later than one year after the effective date of this 28
chapter. 29
(b) The department shall solicit input from the public of any draft rules or regulations to 30
implement this chapter, solicit public comment on draft rules or regulations for a period of at least 31
ninety (90) days, and hold a public hearing on the draft rules or regulations. 32
(c) The rules and regulations adopted by the department pursuant to this chapter shall 33
include, at a minimum: 34
LC000974 - Page 19 of 21
(1) A process for contracting with the packaging reduction organization pursuant to the 1
requirements of § 23-99-5; 2
(2) A process for annually determining a schedule of producer fees and payment collections 3
pursuant to the requirements of § 23-99-9; 4
(3) A process for collecting all necessary information to ensure producer compliance with 5
the requirements of this chapter; 6
(4) A process for evaluating whether a producer is in compliance with the packaging 7
reduction requirements of § 23-99-11; 8
(5) A process for evaluating whether a producer is in compliance with the packaging 9
recycling requirements of § 23-99-12; 10
(6) A process for evaluating whether a producer is in compliance with the toxic packaging 11
reduction requirements of § 23-99-13; 12
(7) A process for determining on an annual basis the types of packaging material that are 13
recyclable; 14
(8) A process for the assessment of the packaging reduction organization and the packaging 15
reduction and recycling program; 16
(9) Requirements for the packaging reduction organization to conduct a representative 17
audit of recyclable material processed and sold by facilities that process recyclable material 18
generated in the state and of municipal solid waste disposed of in the state; 19
(10) A process for establishing and enforcing penalties for all violations of the requirements 20
of this chapter; 21
(11) A process for determining new toxic substances in packaging pursuant to § 23-99-13; 22
(12) A process for how the department will oversee and monitor the packaging reduction 23
organization’s management of the packaging reduction fund, including a process for submitting 24
and reviewing proposals from the packaging reduction organization regarding investments in 25
projects and programs that will help achieve the packaging reduction requirements of § 23-99-11, 26
and the packaging recycling requirements of § 23-99-12; and 27
(13) A process for determining whether information is proprietary information and 28
therefore, shall be handled as confidential information. 29
23-99-16. Penalties and enforcement. 30
(a) Failure to comply with the requirements of this chapter by either the packaging 31
reduction organization or an individual producer shall subject the violators to penalties. The 32
department, inspector general, and the office of the attorney general, may conduct investigations, 33
including inspecting operations, facilities, and records of producers and the packaging reduction 34
LC000974 - Page 20 of 21
organization, and by performing audits of producers and the packaging reduction organization, to 1
determine whether entities are complying with the requirements of this chapter. 2
(b) The department, the inspector general, or the office of the attorney general, shall notify 3
the packaging reduction organization and producers of any conduct or practice that does not comply 4
with the requirements of this chapter and of any inconsistencies identified in an audit. 5
(c) The department, the inspector general, or the office of the attorney general, may issue 6
a notice of violation to, and impose an administrative civil penalty not to exceed one hundred 7
thousand dollars ($100,000) per day per violation on, any entity not in compliance with this chapter 8
or any of the regulations the department adopts to implement this chapter. For the purposes of this 9
section, each product line that is sold, offered for sale, or distributed to consumers, via retail 10
commerce, in the state, including through an Internet transaction, shall be considered a violation. 11
(d) Any funds collected under this section shall be deposited into the packaging reduction 12
fund. 13
23-99-17. Enforcement by action in superior court. 14
(a) The provisions of this chapter may be enforced by means of an action in the superior 15
court seeking either enforcement of civil penalties, injunctive relief, a declaratory judgment, a writ 16
of mandamus, or any combination thereof. No such action may be commenced without the plaintiff 17
providing written notice of the violations of this chapter to defendants at least sixty (60) days prior 18
to filing a legal action in superior court. 19
(b) All persons shall have standing to commence an enforcement actions for equitable 20
relief. 21
(c) Reasonable attorneys’ fees shall be recoverable by all substantially prevailing plaintiffs 22
who seek equitable relief under this section. 23
SECTION 2. This act shall take effect upon passage. 24
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LC000974 - Page 21 of 21
EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO HEALTH AND SAFETY -- EXTENDED PRODUCER RE SPONSIBILITY
FOR PACKAGING
***
This act would establish the packaging reduction and recycling program. The department 1
of environmental management (DEM) would be responsible for selection of an organization to 2
administer the program. The program over a multi-year basis would require reduction in the amount 3
of packaging material used for products. Additionally, this act would create a new position of 4
inspector general within DEM. Administrative penalties not to exceed one hundred thousand 5
dollars ($100,000) per day could be imposed for violations. A civil action for equitable relief for 6
any violation could be pursued by any person. Reasonable attorney fees would be recoverable for 7
a substantially prevailing party seeking equitable relief for a violation of the provisions of this act. 8
This act would take effect upon passage. 9
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