Bill H.4852

FILED ON: 6/3/2022

HOUSE . . . . . . . . . . . . . . . No. 4852

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act to assess the future of mattress recycling 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. Section 2 of Chapter 21H of the General Laws is hereby amended by inserting the following definitions:

(1)"Brand" means a name, symbol, word or mark that attributes a mattress to the producer of such mattress;

(2)“Commissioner” means the Commissioner of the Department of Environmental Protection;

(3)"Covered entity" means any political subdivision of the state, mattress retailer, permitted transfer station, waste-to-energy facility, health care facility, educational facility, military base or commercial or nonprofit lodging establishment that possesses a discarded mattress that was used and discarded in this state. "Covered entity" does not include any renovator, refurbisher or any person who only transports a discarded mattress;

(4)"Department" means the Department of Environmental Protection;

(5)"Discarded mattress" means any mattress that a consumer discarded, intends to discard or abandoned in the state;

(6)"Energy recovery" means the process by which all or a portion of solid waste materials are processed or combusted in order to utilize the heat content or other forms of energy derived from such solid waste materials;

(7)"Foundation" means any ticking-covered structure that is used to support a mattress and that is composed of one or more of the following: A constructed frame, foam or a box spring, whether stationary, adjustable or foldable. "Foundation" does not include any bed frame or base made of wood, metal or other material that rests upon the floor and that serves as a brace for a mattress;

(8) “Institution” means established organizational entities including, but not limited to health care facilities, higher education facilities, military bases, public and private correctional facilities and jails, assisted living facilities, and group homes;

(9) "Mattress" means any resilient material or combination of materials that is enclosed by ticking, used alone or in combination with other products, and that is intended for or promoted for sleeping upon. "Mattress" includes any foundation and any used or renovated mattress. "Mattress" does not include any mattress pad, mattress topper, sleeping bag, pillow, car bed, carriage, basket, dressing table, stroller, playpen, infant carrier, lounge pad, crib or bassinet mattress, crib bumper, liquid or gaseous filled ticking, including any water bed and any air mattress that does not contain upholstery material between the ticking and the mattress core, and upholstered furniture, including a sleeper sofa;

(10)"Mattress core" means the principal support system that is present in a mattress, including, but not limited to, springs, foam, air bladder, water bladder or resilient filling;

(11)"Mattress stewardship fee" means the amount added to the purchase price of a mattress sold to a consumer or to an ultimate end user in this state that is necessary to cover the cost of collecting, transporting and processing discarded mattresses by the council pursuant to the mattress stewardship program;

(12)"Mattress topper" means any item that contains resilient filling, with or without ticking, that is intended to be used with or on top of a mattress;

(13) “Non-profit social enterprise organization” means an organization that sells goods and services and enhances economic development and environmental justice through work opportunities in mattress recycling for individuals facing significant barriers to employment;

(14)"Performance goal" means a metric proposed by the council and approved by the department to measure, on an annual basis, the performance of the mattress stewardship program, taking into consideration technical and economic feasibilities, in achieving continuous, meaningful improvement in improving the rate of mattress recycling in the state and any other specified goal of the program. At a minimum, goals must include collection and recycling rates and public awareness;

(15)"Producer" means any person, irrespective of the selling technique used, including that of remote sale, who manufactures or renovates a mattress that is sold, offered for sale or distributed in the state under the producer's own name or brand. "Producer" includes (A) the owner of a trademark or brand under which a mattress is sold, offered for sale or distributed in this state, whether or not such trademark or brand is registered in this state, and (B) any person who imports a mattress into the United States that is sold or offered for sale in this state and that is manufactured or renovated by a person who does not have a presence in the United States;

(16)"Renovate" or "renovation" means altering a mattress for the purpose of resale including any one, or a combination of, the following: Replacing the ticking or filling, adding additional filling, or replacing components with new or recycled materials. "Renovate" or "renovation" does not include (A) the stripping of a mattress of its ticking or filling without adding new material, (B) the sanitization or sterilization of a mattress without otherwise altering the mattress, or (C) the altering of a mattress by a renovator when a person retains the altered mattress for personal use, in accordance with regulations of the Department of Consumer and Business Services;

(17)"Renovator" means any person who renovates discarded mattresses for the purpose of reselling such mattresses to consumers;

(18)"Retailer" means any person who sells mattresses to a consumer or to an ultimate end user in this state or offers mattresses to a consumer in this state through any means, including but not limited to remote offerings such as sales outlets, catalogs or the Internet.

(19)"Sanitization" means the direct application of chemicals to a mattress to kill human disease-causing pathogens;

(20)"Sale" means the transfer of title of a mattress for consideration, including, but not limited to, the use of a sales outlet, catalog, Internet web site or similar electronic means to a consumer or to an ultimate end user in the state;

(21)"Sterilization" means the mitigation of any deleterious substances or organisms, including human disease-causing pathogens, fungi and insects from a mattress or filling material using a chemical or heat process;

(22)"Ticking" means the outermost layer of fabric or material of a mattress. "Ticking" does not include any layer of fabric or material quilted together with, or otherwise attached to, the outermost layer of fabric or material of a mattress; and

(23)"Upholstery material" means all material, loose or attached, between the ticking and the core of a mattress.

(24) “Waste hauler” means any person who provides commercial, institutional, and residential solid waste removal services, including the removal and end-of-use management of discarded mattresses, in the state under the waste hauler’s own name and brand.

SECTION 2. Chapter 21H of the General Laws is hereby amended by inserting after Section 7 the following section:- Mattress Stewardship Program

Sec. 8. (a) Within 90 days following enactment of this act, each producer, or such producer's designee, shall join the mattress recycling council and by said date such council shall submit a plan, for approval by the Commissioner, to establish a state-wide mattress stewardship program, as described in this subsection. Retailers may participate in said council. Such mattress stewardship program shall, to the extent it is technologically feasible and economically practical: (1) provide for free, convenient and accessible state-wide opportunities for the receipt of discarded mattresses from any person in the state with a discarded mattress that was used and discarded in the state, including, but not limited to, participating covered entities that accumulate and segregate a minimum of one hundred discarded mattresses for collection at one time; (2) provide for free collection of discarded mattresses from transfer stations that accumulate and segregate fewer than fifty mattresses, provided the transfer stations require such collection due to space or permit requirements; (3) provide suitable storage containers at, or make other mutually agreeable storage and transport arrangements for, permitted transfer stations for segregated, discarded mattresses, at no cost to such municipality, provided such transfer station makes space available for such purpose and imposes no fee for placement of such storage container on the transfer station's premises; (4) provide that the organization will conduct research, as needed, related to improving used mattress collection, dismantling, and recycling operations, including pilot programs to test new processes, methods, or equipment on a local, regional, or otherwise limited basis; and (5) include a mattress stewardship fee that is sufficient to cover the costs of operating and administering the program.

(b) The plan submitted pursuant to subsection (a) of this section shall: (1) identify each producer participating in the program; (2) describe the fee structure for the program and include a proposed budget; (3) establish performance goals for the program that clearly outline the maximum feasible level of recovery and recycling of used mattresses in support of the Commonwealth’s overall waste diversion goals as outlined in the department’s solid waste master plan; (4) identify proposed facilities to be used by the program; (5) Offer organizations that recycle or renovate discarded mattresses the opportunity to participate as collection sites; (6) meet minimum convenience goals approved by the department that provide communities, including but not limited, to small towns, rural towns, residents of multifamily housing structures, and environmental justice populations equitable access to collection sites and a timeline for implementing and achieving convenient access to the program; (7) detail how the program will promote the recycling of discarded mattresses consistent with the state’s solid waste management hierarchy; (8) include a description of the public education program; (9) propose a mechanism to mitigate the costs associated with collection of discarded mattresses that are illegally dumped, which may include but need not be limited to proposals for funding of clean-up activities, for education and outreach or for studies to evaluate the causes of illegal dumping.

(c)The council shall establish and implement a fee structure that covers, but does not exceed, the costs of developing the plan described in subsection (b) of this section, operating and administering the program described in subsection (a) of this section and shall not maintain total reserves exceeding 60 percent of its annual operating expenses, consistent with the requirements of the Financial Accounting Standards Board’s Accounting Standards Update 2016-14, Not-for-Profit Entities (Topic 958), and any future updates to that standard. If the council’s reserves exceed the amount specified, the department may require the organization to increase spending on implementing the requirements of this chapter in order to reduce the excess amount of reserves. The council may not use any moneys collected through a mattress stewardship fee to pay penalties assessed against the council. The council may initially set the fee as a flat rate and not as a percentage of the purchase price. During the third year of implementing a mattress stewardship program under a plan or initial plan, the council shall fund a study conducted by the department that examines (i) how the mattress stewardship fee can be differentiated to: 1) incentivize the reduction of toxics and resources (e.g., energy and water) associated with mattress production; 2) incentivize the use of post-consumer recycled content in mattress; and 3) discourage the use of mattress materials that pose challenges for the recycling of discarded mattresses; and (ii) the scope of discarded mattresses in this state that are not being collected as part of the council’s mattress stewardship program and recommendations on how to direct the discarded mattresses to, and include them, in the council’s program. The results of the study will be used to establish a system of differential fees within one year of completion of the study. The council shall maintain all records relating to the program for a period of not less than three years.

(d)The council shall include in its plan the establishment of a new Employment Social Enterprise Impact Program based on written recommendations provided by the Commissioner. The goal of the program will be to foster the sustainability of nonprofit employment social enterprise organizations that sell goods and services and enhance economic development and environmental justice through the provision of work opportunities in mattress recycling for individuals facing significant barriers to employment. The program will be effective 30 days after the approval of a plan. Based on the submission of an eligible nonprofit application, the council shall select at least one nonprofit employment social enterprise and award a contract as a vendor for the collection, transportation and recycling of mattresses during the four-year period of the initial plan. Eligible applicants will be 501c3 nonprofit employment social enterprise organizations that have a demonstrated history of providing mattress recycling services in Massachusetts as an approved vendor by the department while providing employment and professional skills training opportunities for individuals facing significant barriers to employment. In addition to the council’s funding for the collection, transportation, and recycling of mattresses, the selected nonprofit will be provided a contract that includes an additional social impact payment to support the offering of wraparound and work readiness services, including but not limited to training, transitional employment services, and case management as long as fifty percent of individuals in the work crew face barriers to employment. The social impact payment will equal no less than $18 per mattress recycled or reused by the nonprofit, not to exceed $500,000 per year. Subsequent to the first four-year period of the plan, the council will evaluate the opportunity to expand the Employment Social Enterprise Impact Program, and will continue to provide all program offerings included in the initial plan, with no interruption of the program, to at least one eligible nonprofit with a minimum of five years of mattress recycling experience as an approved vendor in Massachusetts. Additionally, nonprofit employment social enterprises will receive priority consideration in any bid or grant application through the council or department that supports mattress recycling, and will be eligible to receive awards on a continual annual basis to best support their sustainability.

(e)Pursuant to the program, recycling shall be preferred over any other disposal method for mattresses, to the extent that recycling is technologically feasible and economically practical.

(f) If the mattress stewardship fee established by the council is less than the social impact payment, the department shall, monthly, reimburse participating nonprofit employment social enterprises for the difference between the fee and the social impact payment, per mattress collected and recycled. The nonprofit employment social enterprise shall, monthly. submit to the department a request for reimbursement that includes (i) the total number of mattresses collected and recycled by the nonprofit employment social enterprise; and (ii) transportation costs incurred by the nonprofit employment social enterprise related to mattress collection and recycling. The department may (i) increase the minimum social impact payment, (ii) increase the annual cap on social impact payments, and (iii) adjust the reimbursement schedule.

(g)The Commissioner shall approve the plan for the establishment of the mattress stewardship program, provided such plan meets the requirements of subsections (a) to (c), inclusive, of this section. Not later than ninety days after submission of the plan pursuant to this section, the Commissioner shall make a determination whether to approve the plan. Prior to making such determination, the Commissioner shall post the plan on the department's Internet web site and solicit public comments on the plan for not less than thirty days. In the event that the Commissioner disapproves the plan because it does not meet the requirements of subsections (a) to (d), inclusive, of this section, the Commissioner shall describe the reasons for the disapproval in a notice of determination that the Commissioner shall provide to the council. The council shall revise and resubmit the plan to the Commissioner not later than forty-five days after receipt of notice of the Commissioner’s disapproval notice. Not later than forty-five days after receipt of the revised plan, the Commissioner shall review and approve or disapprove the revised plan and provide a notice of determination to the council. The council may resubmit a revised plan to the Commissioner for approval on not more than two occasions. If the council fails to submit a plan that is acceptable to the Commissioner because it does not meet the requirements of subsections (a) to (c), inclusive, of this section, the Commissioner shall modify a submitted plan to make it conform to the requirements of subsections (a) to (c), inclusive, of this section, and approve it. Not later than one hundred eighty days after the approval of a plan pursuant to this section, or one hundred eighty days, in the case of a plan modified by the Commissioner, the council shall implement the mattress stewardship program. The initial plan submitted by a council and approved by the department shall be valid for five years. At least 180 days before the expiration of a plan or initial plan, the council shall submit the plan to the department to be reapproved for an additional five years.

(h)(1) The council shall submit any proposed substantial change to the program to the Commissioner for approval. For the purposes of this subdivision, "substantial change" means: (A) A change in the processing facilities to be used for discarded mattresses collected pursuant to the program, (B) a material change to the system for collecting mattresses, (C) a change to the fee structure, (D) a change in the composition of the committee. If the Commissioner does not disapprove a proposed substantial change within ninety days of receipt of notification of such proposed substantial change, such proposed substantial change shall be deemed approved.

(2) Within 90 days following the end of the program’s second fiscal year, the council shall submit updated performance goals to the Commissioner that are based on the experience of the program during the first two years of the program and to ensure continued alignment with the department’s solid waste diversion goals.

(i)The council shall notify the Commissioner of other material changes to the program on an ongoing basis, without resubmission of the plan to the Commissioner for approval. The department may promulgate regulations regarding permissible changes without resubmission of the plan.

(j) Within 90 days following the end of the program’s second fiscal year and every two years thereafter, the council shall propose a mattress stewardship fee for all mattresses sold in this state except those products excluded from the definition of “Mattress” in Section 1. (k) On and after the implementation of the mattress stewardship program, each manufacturer, renovator, retailer, or distributor that sells a mattress to a consumer or to an ultimate end user in the state shall add the mattress stewardship fee, established pursuant to subsection (a) of this section and described in subsection (h) of this section, to the purchase price for such mattress and shall remit the fee collected to the council. In each transaction described above, the fee shall appear on the invoice and shall be accompanied by a brief description of the fee. The council shall determine the rules and procedures that are necessary and proper to implement the collection of the fee in a fair, efficient, and lawful manner. Any producer or retailer who fails to participate in such program shall not sell mattresses in this state.

(k)Not later than October fifteenth of each year, the council shall submit an annual report to the Commissioner of the for the most recently completed fiscal year. The Commissioner shall post such annual report on the department's Internet web site. The Commissioner shall review and approve the yearly annual report. Such report shall include: (1) Information on the number and tonnage of discarded mattresses collected pursuant to the mattress stewardship program from: (A) transfer stations, (B) retailers, (C) collection events, (D) employment social enterprise organizations and (E) all other covered entities during the previous calendar year at a sufficient level of disaggregation to determine how the program is performing in different regions of the state; (2) Information on the number and tonnage of program mattresses collected pursuant to the mattress stewardship program for renovation during the previous calendar year at a sufficient level of disaggregation to determine how the program is performing in different regions of the state; (3) the tonnage of mattresses diverted for recycling; (4) the weight of mattress materials recycled, as indicated by the weight of each of the commodities sold to secondary markets; (5) the weight of mattress materials sent for disposal at each of the following: (A) Waste-to-energy facilities, (B) landfills, and (C) any other facilities; (6) a summary of the public education that supports the program; (7) an evaluation of the effectiveness of methods and processes used to achieve performance goals of the program, information on progress made toward achieving the goals, an explanation of why any goals were not met during the previous calendar year and any efforts that will be taken to improve progress toward meeting the goals in the future, if applicable; (8) recommendations for any changes to the program; (9) the total sales of mattresses sold to consumers in this state in the previous calendar year by producers, renovators and retailers registered with the council; (10) the number of discarded mattresses received through collection that were not included in the program, the number of discarded mattresses that were illegally dumped as reported to the department, an analysis of how the data required by this paragraph has changed over time and strategies the council will take to address discarded mattresses that are not included in the program and discarded mattresses that are illegally dumped; and (11) the mattress recycling organization’s costs and revenues for the previous calendar year.

(l)The Commissioner of the Department of Environmental Protection shall appoint a mattress stewardship program advisory committee. The advisory committee shall be comprised with membership representation from the Commissioner of the Massachusetts Department of Environmental Protection, or his/her designee, who shall serve as chair of the special commission; a representative from MassRecycle; two representatives from two different covered entities; a representative from a Massachusetts-based mattress recycling organization; a representative of an environmental nongovernmental organization; a representative of a social enterprise nonprofit organization involved in mattress recycling; and a representative of the International Sleep Products Association. The commissioner shall place great emphasis on selecting a diverse group of advisory committee members. The attorney general shall appoint one member to the advisory committee with expertise in consumer protection. The advisory committee shall meet not less than once every quarter and shall consult with the council and advise the department, including delivering written recommendations regarding: (1) The review of any plan for the development and implementation of a mattress stewardship program submitted to the department; (2) The review of any amendment to a plan; (3) The review of annual reports submitted by a council. The department may select and hire a third-party facilitator for the Advisory Committee, which shall be included among the administrative costs of the program, to be paid by producers or producer responsibility organizations.

(m)The council shall conduct during the third year of implementing a mattress stewardship program, and in consultation with the mattress stewardship program advisory committee and a minimum of three other community organizations invited by the advisory committee, a study evaluating the most effective methods of providing discarded mattress collection services to low-income individuals, environmental justice populations, municipalities with populations of less than 5,000 residents, and multifamily housing structures.

(n)Two years after the implementation of the program and every three years thereafter, or upon the request of the Commissioner but not more frequently than once a year, the council shall cause an audit of the program to be conducted by an auditor as described in subsection (h) of this section. Such audit shall review the accuracy of the council's data concerning the program and provide any other information requested by the Commissioner, consistent with the requirements of this section, provided such request does not require the disclosure of any proprietary information or trade or business secrets. Such audit shall be paid for by the council. The council shall maintain all records relating to the program for not less than three years.

(o) Upon implementation of the mattress stewardship program described in section 2 of this act, any covered entity that participates in such program shall not charge for the receipt of discarded mattresses that are discarded in this state provided covered entities may charge a fee for providing the service of collecting mattresses.

(p) Each producer and the council shall be immune from liability for any claim of a violation of antitrust law or unfair trade practice, if such conduct is a violation of antitrust law, to the extent such producer or council is exercising authority pursuant to the provisions of sections 1 to 6, inclusive, of this act.

(q) (1) The Commissioner may seek civil enforcement of the provisions of sections 2 and 3 of this act.

(2)Whenever, in the judgment of the Commissioner, any person has engaged in or is about to engage in any act, practice or omission that constitutes, or will constitute, a violation of any provision of section 2 or 3 of this act, the Attorney General may, at the request of the Commissioner, bring an action for an order enjoining such act, practice or omission. Such order may require any producer or renovator that violates the provisions of this Act to incur a civil penalty not to exceed $1,000 per day for each day of the violation and any retailer that violates the provisions of this Act incurs a civil penalty not to exceed $100 per day for each day of the violation. Upon a showing by the Commissioner that such person has engaged in or is about to engage in any such act, practice or omission, the court may issue a permanent or temporary injunction, restraining order or other order, as appropriate.

(3)Any action brought by the Attorney General pursuant to this section shall have precedence in the order of trial.

(r) In the event that another state implements a mattress recycling program, the council may collaborate with such state to conserve efforts and resources used in carrying out the mattress stewardship program, provided such collaboration is consistent with the requirements of sections 1 to 6, inclusive, of this act.

(s) Nothing in this section shall prohibit the department from administering existing mattress recycling programs.

(t) The department shall establish an annual fee to be paid by the council that is reasonably calculated to cover the costs to the department to administer, implement and enforce this Act. The department shall provide notice to the council no later than June 1 of each year of the annual fee for the upcoming calendar year.

SECTION 3. Chapter 21H of the General Laws is hereby amended by inserting after Section 7 the following section:- “Section 9: Mattress Recycling Needs Assessment”

Section 9. Mattress Recycling Needs Assessment

(a) The department shall conduct a needs assessment, a copy of which is to be published on the department’s Internet website, and filed with the clerks of the house of representatives and the senate and the chairs of the joint committee on environment, natural resources and agriculture not later than October 5, 2023. This needs assessment and final report shall include:

(1) both a two-year and five-to-ten-year analysis of the state’s projected mattress recycling demand, volume, mattress recycling capacity, associated costs, resource and budgetary needs following the effective date of the updated regulations pursuant to 310 CMR 19.000, including: (A) a recommendation on the continuation of the state’s current role in mattress recycling and the possible expansion of its mattress recycling infrastructure, (B) an environmental impact analysis of the state’s current mattress recycling infrastructure, (C) recommendations and best practices for supporting municipalities with mattress collection, mattress transportation, and associated mattress recycling costs, (D) recommendations for continued social enterprise involvement with the statewide mattress recycling program, including a review of opportunities to increase additional community impacts through preferred partnerships with local non-profit social enterprises and organizations that recycle mattresses, and policy recommendations to reduce potential barriers to entry in the statewide mattress recycling program for social enterprise organizations, and (E) an analysis of the interests and concerns of various stakeholders, including, but not limited to (i) producers, (ii) online and out-of-state retailers, (iii) in-state retailers, (iv) municipalities, (v) commercial and non-profit social enterprise mattress recyclers, (vi) commercial waste haulers, (vii) institutions, (viii) the department, and (ix) consumers;

(2) both a two-year and five-to-ten-year analysis of (A) the future capacity of social enterprise engagement in the statewide mattress recycling program, (B) capacity to address recycling needs and coverage gaps across all regions in the commonwealth using a variety of strategies, including but not limited to commercial, non-profit or social enterprise vendors, regional or municipal mattress recycling services, retailer mattress take-back programs, producer responsibility programs, or waste hauler mattress collection services, and (C a determination of the necessity and feasibility of providing ongoing recycling-related logistical support for municipalities that host institutions of higher education with large off-campus student populations;

(3) policy recommendations for establishing proper end-of-use management standards for mattresses, including, but not limited to: (A) ensuring proper in-state disposal of discarded mattresses, including incentives to promote use of in-state mattress recycling infrastructure, (B) support for non-profit social enterprise mattress recycling entities, (C) monetary fines for improper or illegal disposal of mattresses, and (D) the feasibility of implementing a waste tracking system that ensures effective and legal end-of-use management of mattresses;

(4) policy recommendations for the continuation and improvement of a statewide mattress stewardship program; and

(5) recommendations for best practices to ensure broad and comprehensive public access to accurate online information about the availability of statewide mattress recycling options, access to such options, and proper mattress end-of-use management.

(b) As part of the needs assessment, the department shall solicit public input regarding end-of-use mattress recycling needs, gaps in departmental resource allocation and opportunities for increased programmatic support for municipalities with populations of less than 5,000 throughout the Commonwealth. Not later than September 5, 2023, the department shall (i) hold not less than 4 public hearings in geographically-diverse municipalities across the commonwealth, 2 of which shall be held in rural municipalities, to receive public testimony on the end-of-use mattress management needs of small and rural municipalities, and shall provide for remote participation; and (ii) solicit and accept written and electronic testimony submissions from the public. The department shall solicit public comment for at least 30 days and shall summarize the public input it receives in the needs assessment.

SECTION 4. Sections 1 and 2 of this act shall take effect upon its passage.

SECTION 5. Section 3 of this act shall take effect on January 5, 2023.