HOUSE DOCKET, NO. 1771        FILED ON: 1/17/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 750

The Commonwealth of Massachusetts

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PRESENTED BY:

Michael S. Day

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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.

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PETITION OF:

HOUSE DOCKET, NO. 1771        FILED ON: 1/17/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 750

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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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:
 

SECTION 1. Chapter 21A of the General Laws is hereby amended by inserting after section 11C the following section:

Section 11D. Creation of Sustainable Packaging Advisory Board. For the purposes of this section the following terms shall, unless the context clearly appears otherwise, have the following meanings:

“Board”, the Sustainable Packaging Advisory Board

"Brand", a name, symbol, word or mark that identifies a product and attributes the product to the owner of the brand as the producer.

“Department”, the department of environmental protection.

“Designated materials” means any packaging materials or printed paper material that producers generate in the marketplace and are obliged to recover per this section.

“Material recovery facility”, a facility that receives, processes, and sells or otherwise distributes post-consumer materials for recycling.

“Packaging”, any material used to ship, hold, protect, and present goods for sale to consumers in the commonwealth by a producer.

“Packaging types”, including but not limited to corrugated cardboard, boxboard, rigid plastic containers, etc., as designated by the department, based on material type, recyclability, recycled content and other attributes.

"Plan", a detailed plan that describes the manner in which producers shall arrange for the collection and recycling of post-consumer packaging.

"Post-consumer" means material that would normally be discarded as municipal solid waste having completed its life cycle as a consumer item.

“Printed paper”, paper that can or has been printed on including flyers, brochures, booklets, catalogues, greeting cards, telephone directories, newspapers, magazines, paper used for copying, writing or any other general use. Printed paper does not include paper products that, by virtue of their anticipated use, could become unsafe or unsanitary to recycle and any type of bound book not otherwise specified in this definition.

"Producer", an entity with more than $100,000 per year in sales in the commonwealth to which one or more of the following apply:

        (i) Which manufactures consumer goods and sells, offers to sell, delivers or distributes in the commonwealth under the manufacturer's own name or brand;

        (ii) Which is the owner or licensee of a trademark or brand under which the material is sold, offered for sale, delivered or distributed in the commonwealth, whether or not the trademark is registered;

        (iii) Which imports the consumer goods into the commonwealth for sale or distribution;

        (iv) Which sells containers into which products are dispensed at a retail establishment for offsite consumption; or

(v) Which sells at wholesale or retail a designated material, does not have legal ownership of the brand, and elects to fulfill the responsibilities of the producer for that product.

"Producer responsibility organization", a non-profit organization designated by a group of producers to act as an agent on behalf of participating producers to administrate their responsibility to manage packaging and printed paper.

“Product”, any physical product sold to consumers in the commonwealth through retail establishments, wholesale distributor, internet sales or mail order.

"Recovery rate", the percentage of packaging and printed material by weight that is ultimately recycled.

"Recycled", material that is collected, prepared, delivered and incorporated in new products as a replacement for, or supplement to, raw material inputs in manufacturing, agriculture or construction. Recycling does not include destruction by incineration, conversion into a fuel without material recovery, or landfill disposal.

“Small producer”, an entity which meets the above specifications defining a producer with the following exceptions:

(i)A producer with less than $100,000 per year in sales, or

(ii)A producer which supplies less than 15 tons of packaging and printed paper per year.

a)The governor shall appoint a Sustainable Packaging Advisory board which shall advise the commissioner of the department, the producers and producer responsibility organization(s) on the plans and regulations required herein. The board shall consist of 9 members: 1 of whom shall be the commissioner of the department of environmental protection or a designee, 2 of whom shall be a representative of commonwealth producers which are subject to the fee; 2 of whom shall represent of the waste hauling and material recovery facility industry[3] [CG4] ; 2 of whom shall be a representative of nonprofit environmental organizations that participate on the department’s solid waste advisory committee; and 2 of whom shall be a representative of municipal solid waste programs.

i.Appointed representatives from nonprofit environmental organizations shall have no affiliation with a company disposing of or hauling waste, whether within the Commonwealth or without, including but not limited to affiliation through;

1)Funding provided as a donation;

2)Corporate representation on a board of trustees.

b)Within twenty-four (24) months of the passage of this chapter, no producer, distributor or retailer shall sell or offer for sale any packaging materials to any person in the commonwealth if:

i.the producer of such materials has not had a plan approved by the Sustainable Packaging Advisory Board that arranges for and finances the collection and recycling of post-consumer packaging as described within this section, or

ii.the producer of such material has not paid for membership in a producer responsibility organization approved under section (c).

c)Within 6 (six) months of passage of this act, the Sustainable Packaging Advisory Board shall, in coordination with a producer responsibility organization(s), cause for the development of a program to fund the requirements of Chapter 10 section 35EEE. If no producer responsibility organization exists, the Sustainable Packaging Advisory Board shall cause a non-profit organization to be incorporated which shall be the producer responsibility organization for packaging and printed paper. The producer responsibility organization(s) shall, either in coordination with the Sustainable Packaging Advisory Board or on its own, develop and submit to the Sustainable Packaging Advisory Board a program plan including, but not limited to, the following information:

i.The name of the producer responsibility organization that the program has been developed in cooperation with.

ii.The designation of persons or classes of persons as stewards in respect to packaging production.

1)Beverage containers included in Chapter 94 section 321 shall be excluded from any definition of packaging and printed paper.

2)Small producers of packaging and printed paper shall be exempt from either submitting a plan or obtaining membership in a producer responsibility organization.

iii.A fee schedule for the collection of stewardship fees from producers of printed paper and packaging, such that the funding requirements outlined in Chapter 10 section 35EEE shall be fulfilled. Financing costs shall be apportioned to stewards using the following cost criteria:

1)Position on the Zero Waste International Alliance hierarchy (higher cost for prohibited or less desirable processes, lower costs for processes further up in the hierarchy).

2)End of life management cost of each material type per ton, including collection, disposal, recycling, contamination cost at material recovery facilities;

3)environmental impact of production, recovery and disposal as determined by an independent third party conducting a life cycle assessment for each material type; and

4)recovery rate for each material based on audits of incoming loads at representative transfer stations, disposal facilities and material recovery facilities in the commonwealth.

iv.Explain the process for determining how much of each type of packaging, based on weight, is sold into the commonwealth each year, and determining the amount of material recycled.

v.Explain the process for determining the quantity of payments to municipalities which meet the specifications outlined in Chapter 10 Section 35EEE (c).

d)Not later than ninety (90) days after the submission of a plan pursuant to this section, the department shall make a determination whether to:

        (1) Approve the plan as submitted;

        (2) Approve the plan with conditions; or

        (3) Deny the plan.

e)Not later than six (6) months after the date the plan is approved, the producers, or producer responsibility organization, shall implement the approved plan.

f)Not later than the implementation date of the program, the Sustainable Packaging Advisory Board shall publicly list the names of participating producers and the brands covered by the approved program.

g)A person or producer designated under the rules set forth in subsection (d) (ii) as a steward, who elects to waive their responsibility to submit and execute a plan for collecting and recycling their post-consumer packaging and printed paper through membership in a producer responsibility organization, shall pay to the organization the fees determined in accordance with subsection (d) (iii) of this act.

h)The producer responsibility organization shall maintain the Sustainable Packaging Trust, as described under Chapter 10 section 35EEE. The fund shall be held in trust by the producer responsibility organization for the following purposes:

i.To pay the costs of developing, implementing and operating the municipal reimbursements outlined in Chapter 10 section 35EEE, including reasonable costs associated with the operation of the producer responsibility organization.

ii.To pay a reasonable share of costs incurred by the Sustainable Packaging Advisory Board in carrying out its responsibilities under this act.

iii.To pay a reasonable share of costs incurred by the department in carrying out its responsibilities under this act.

i)All money received by the producer responsibility organization, including the following amounts, shall be paid into the fund:

i.All fees paid to the producer responsibility organization under subsections (h) and all interest and penalties paid in respect of those fees.

ii.All voluntary contributions of money to the organization.

iii.All investment income earned by the fund.

j)The total amount of fees paid by stewards under subsection (h) should not exceed the sum of the amounts outlined in subsection (i).

k)One year from the submission of the initial program plan, and each year thereafter, the producer responsibility organization shall submit to the Sustainable Packaging Advisory Board a report containing, but not limited to, the following:

i.the amount of material sold into the commonwealth, including a detailed methodology for how this figure was determined,

ii.a summary of fees assessed and program expenses incurred,

iii.and any other information required by the department pertaining to this Section. This information may be audited by the department by an independent auditor chosen by the department. Audits are funded from the Sustainable Packaging Trust.

Section 11E. Municipal Reporting.

a)Each municipality in the Commonwealth shall submit to the department and the producer responsibility organization within twelve (12) months of the passage of this act a report containing the following:

i.Monthly tonnage of recycling collected by the municipality, or on behalf of the municipality by a private hauling company, if applicable.

ii.Monthly cost of hauling and tipping fees for recyclables collected as part of a municipal recycling program, if applicable.

iii.Monthly cost of operating a municipal transfer station, if applicable.

iv.Any other information the producer responsibility organization may deem necessary to fulfill the program planning requirements set out in Section 11D subsection (d).

Section 11F. Authority.

The department is hereby authorized to promulgate rules and regulations as may be necessary to implement and carry out the provisions of this chapter, and to assess fines for noncompliance as detailed in Section 11F.

Section 11G. Enforcement.

Failure to comply with any of the requirements established by or pursuant to Section 11D shall obligate the producers covered under that material-type to pay not less than two hundred thousand dollars ($200,000) per year of non-compliance. The department shall deposit the funds received from producers into the Sustainable Packaging Trust for grants for market development related to the collection and recycling of the material type, and to municipalities to offset disposal costs related to the managing the un-recycled packaging and/or printed paper. Producers' individual contributions shall not exceed their respective market shares of packaging sold in the state.

SECTION 2. Chapter 10 of the General Laws is hereby amended by inserting after section 35DDD the following section:

Section 35EEE.

a)There shall be established an expendable trust to be known as the Sustainable Packaging Trust. Amounts deposited in the trust shall be used for reimbursements described in sections (c) and (d). Proceeds of the trust shall be invested by the treasurer and shall be under the care and custody of the commissioner of the department of environmental protection, in consultation with the board established in subsection (a) of Section 11D of Chapter 21A. Interest earnings on funds deposited in said trust shall be credited to and become part of the trust. The proceeds of the trust shall be expended by said commissioner without further appropriation to cover the costs outlined in this act.

b)The commissioner of the department of environmental protection shall cause to be filed with the chairs of the house and senate committees on ways and means an annual report regarding the revenues and expenditures provided from the trust.

c)Each municipality in the Commonwealth shall consider their costs related to recycling to include but not be limited to:

i.Hauling costs incurred by the municipality or paid to a private hauler,

ii.Tipping fees paid to a materials recycling facility,

iii.Costs incurred through operation of a municipal transfer station.

d)Each municipality in the Commonwealth shall be entitled to a reimbursement for any costs related to recycling, provided they meet the requirements of subsection (e):

i.60 percent if recycling contamination is above 10 percent overall, as decided by the material recycling facility, or

ii.80 percent if recycling contamination is below 10 percent overall, as decided by the material recycling facility.

e)Each municipality in the Commonwealth must develop and submit a Zero Waste Plan to the Department, outlining how the municipality intends to reduce their waste. The municipality may only receive a reimbursement from the producer responsibility organization through the Sustainable Packaging Trust, once that Zero Waste Plan is approved by the department.

SECTION 3. The department shall, on or before July 1, 2021, promulgate regulations to set a timeline for the types of packaging to be covered by the plans set forth in section 1, with priority materials being those that are most costly to manage based on aggregate disposed weight and aggregate contamination volume at material recovery facilities. All packaging types as defined in section 1 shall be included by 5 years from initial promulgation.