Bill H.3676

HOUSE DOCKET, NO. 3912 FILED ON: 1/20/2023

HOUSE . . . . . . . . . . . . . . . No. 3676

By Representative Ciccolo of Lexington, a petition (accompanied by bill, House, No. 3676) of Michelle L. Ciccolo and others relative to the provisions of the bottle bill, so-called. Telecommunications, Utilities and Energy.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act to update the bottle bill.

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 94 of the General Laws is hereby amended by striking out sections 321 to 323, inclusive, and inserting in place thereof the following 3 sections:-

Section 321. In sections 321 to 327A, inclusive, the following definitions shall, unless the context clearly requires otherwise, have the following meaning:

“Beverage”, any drinkable liquid intended for human oral consumption. The term beverage does not include:

(1) a drug regulated under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq.;

(2) infant formula;

(3) a meal replacement liquid; and

(4) dairy products derived from animal milk.

“Beverage container”, a prepackaged container designed to hold a beverage that is made of any material, including glass, plastic and metal, and has a volume which is not less than 50 milliliters, nor greater than 3 liters. The term beverage container shall not include:

(1) cartons;

(2) pouches; or

(3) aseptic packaging, such as a drink box.

“Consumer”, any person who purchases a beverage in a beverage container for use or consumption with no intent to resell such beverage.

“Dealer”, any person, including any operator of a vending machine, who engages in the sale of beverages in beverage containers to consumers in the commonwealth.

“Department”, the department of environmental protection.

“Distributor”, any person who engages in the sale of beverages in beverage containers to dealers in the commonwealth including any bottler who engages in such sales.

“Label”, a molded imprint or raised symbol on or near the bottom of a plastic product.

“Plastic”, any material made of polymeric organic compounds and additives that can be shaped by flow.

“Processing payment”, the amount of money that a distributor shall pay a curbside recycling entity as determined by the department.

“Producer”, with respect to a beverage sold in a beverage container:

(1) a person that engages in the manufacturing or bottling, canning or otherwise fills containers for import or sale to distributors, dealers or consumers, or, in the case of private label brands, the owner of the private label trademark in the United States, including any importer that engages in that sale or distribution;

(2) if paragraph (1) does not apply, a person that engages in the sale of a beverage in a beverage container directly to a consumer in the United States; or

(3) if paragraphs (1) and (2) do not apply, a person that imports the beverage sold in a beverage container into the United States for use in a commercial enterprise, sale, offer for sale or distribution in the United States.

“Producer responsibility organization”, the non-profit organization that a group of distributors may elect to create or appoint to fulfill its obligations under sections 321 to 327A, inclusive.

“Recyclable”, a beverage container that:

(1) can be recycled in current United States market conditions;

(2) does not require a consumer to remove an attached component, such as a shrink sleeve, label or filter, before the it can be recycled; and

(3) effective beginning 1 year after the start date, does not contain a toxic substance.

“Recycle”, the series of activities by which a covered product is: (i) collected, sorted and processed; (ii) converted into a raw material with minimal loss of material quality; and (iii) used in the production of a new product, including the original product.

The term “recycle” shall not include:

(i) downcycling, the method of sorting, processing and aggregating materials from solid waste that does not preserve the original material quality, and, as a result, the aggregated material is no longer usable for its initial purpose or a substantially similar product and can only be used for inferior purposes or products;

(ii) the use of waste: as a fuel or fuel substitute; for energy production; for repurposing into infrastructure, including pavement for streets or sidewalks, building materials and other infrastructure projects, as determined by the department; for alternative operating cover; or within the footprint of a landfill;

(iii) the conversion of waste into alternative products, such as chemicals, feedstocks, fuels and energy, through: incineration; pyrolysis; methanolysis; gasification; solvolysis; chemical, molecular or advanced recycling; or a similar technology, as determined by the department.

“Rigid plastic container”, any formed or molded container, other than a bottle, intended for single use, composed predominantly of plastic resin and having a relatively inflexible finite shape or form with a capacity of 8 ounces or more but less than 5 gallons.

“Reusable beverage container”, any beverage container so constructed and designed that it is structurally capable of being refilled and resold by a bottler at least 50 times after its initial use.

Section 322. (a) Every beverage container sold or offered for sale in the commonwealth shall have a refund value of not less than 10 cents. The provisions of this section shall not apply to such containers sold by a distributor for use by a common carrier in the conduct of interstate passenger service.

(b) Beginning three years after the start date, the department shall increase the minimum refund value set in paragraph (1) to match inflation; provided, that, the minimum refund value shall be increased by an additional 5 cents in the case of failure to meet redemption targets described in section 323I

(c) The department may require a refund value that is greater than the minimum refund value set in paragraph (1) if the redemption target is not achieved.

Section 323. (a) Every consumer shall deposit with the dealer the refund value of each beverage container purchased from that dealer.

(b) Except as provided in paragraph (f), a dealer shall accept from any person during their business hours any empty beverage container of the type sold by the dealer, provided that the beverage container is made of the same type of material as beverage containers sold by the dealer, and shall pay that person the refund value of each beverage container returned. This subsection shall not apply if the dealer is: (i) an establishment providing on premises consumption such as a hotel, restaurant or bar; or (ii) an establishment of less than 2,000 square feet.

(c) Except as provided in paragraph (e), a distributor shall accept from any dealer any empty beverage container and shall pay the dealer the refund value of the beverage container plus a handling fee if the empty beverage container is presented at the time of and at the location at which the dealer obtains filled beverage containers from the distributor. The department shall set a handling fee that covers the cost of operating the infrastructure necessary to collect and transport the empty beverage containers to be recycled or refilled and that covers the cost of administering and enforcing sections 321 to 327A, inclusive. The department shall monitor and track the location of points of redemption throughout the commonwealth. Beginning two years after the Start Date, The department shall increase the handling fee by 1 cent if:

(i) there is less than 1 point of redemption for every 3,000 persons in the commonwealth, including dealers and redemption centers; or

(ii) there is less than 1 point of redemption for every 3,000 persons within an environmental justice community, as defined by the executive office of energy and environmental affairs.

(d) Any person may establish a redemption center that shall accept clean beverage containers in good condition. Except as provided in paragraph (e), a distributor shall take from any redemption center any

empty beverage container of the type, size and brand sold by the distributor within the past 60 days and shall pay the redemption center the refund value of the container plus a handling fee of at least 1 cent per container. The department may approve procedures and specifications to pay an entity that collects curbside recycling a processing payment and commodity value for beverage containers sorted and delivered to producers for audit and accounting. Such containers may not be added to the redemption rate calculation.

(e) A dealer, distributor, redemption center or bottler may refuse to accept any beverage container that contains material foreign to the normal contents of the container.

(f) Any bottler or distributor who receives deposits or handling charges under this chapter shall segregate said deposits or handling charges in a fund which shall be maintained separately from all other revenues. Said bottler or distributor shall report on a monthly basis to the alcoholic beverage control commission, in a manner prescribed by said commission, the amount of said deposits or handling charges received and the amount refunded.

(g) Any bottler or distributor who is subject to the provisions of paragraphs (c) or (d) shall maintain a separate account to be known as the Deposit Transaction Fund. Said fund shall be kept separate from all other revenues and accounts. Each bottler or distributor shall place in said fund the refund value for all non-reusable beverage containers it sells subject to the provisions of this chapter. Except as specified in section 323G, amounts in such fund may only be expended to pay refund values paid after December 31, 1989 for returned non-reusable beverage containers pursuant to paragraphs (c) and (d). Amounts in such fund shall not be used to pay the handling fees required by paragraphs (c) and (d). Each such fund shall be maintained by said bottlers and distributors on behalf of consumers who have purchased beverage containers and on behalf of the commonwealth; except as specified in section 323C, for no purpose are amounts in such fund to be regarded as income of said bottlers or distributors.

(h) The obligations to accept or take empty beverage containers and to pay the refund value and handling fees for such containers as described in paragraphs (b) and (c) shall apply only to containers originally sold in the commonwealth as filled beverage containers. Any person who tenders to a dealer, distributor, redemption center or bottler more than 10 cases of 24 empty beverage containers each, which they know or have reason to know were not originally sold in the commonwealth as filled beverage containers, for the purpose of obtaining a refund value or handling fee, shall be subject to the enforcement action and civil penalties set forth in section 327. For the purpose of this section and section 327, the term person shall include any individual, partnership, corporation or other combination or entity.

SECTION 2. Section 323A of said chapter 94, as appearing in the 2020 Official Edition, is hereby amended by adding the following paragraph:-

Any manufacturer, importer or distributor of a beverage in a beverage container that is sold in the commonwealth shall include on the label of the beverage container:

(1) a standardized description of the applicable refund value in such a manner that the description is clearly visible; and

(2) a UPC barcode to identify and validate participation in the redemption program.

SECTION 3. Section 323B of said chapter 94, as so appearing, is hereby amended by striking out, in lines 5 and 6, the words “non reusable” each time they appear.

SECTION 4. Section 323C of said chapter 94, as so appearing, is hereby amended by striking out, in line 5, the words “non reusable”.

SECTION 5. Section 323D of said chapter 94, as so appearing, is hereby further amended by striking out, in line 4, the words “section three hundred and twenty-three F” and inserting in place thereof the following words:- section 323G.

SECTION 6. Said chapter 94, as so appearing, is hereby further amended by inserting after section 323E the following 4 sections:-

Section 323G. (a) There shall be established on the books of the commonwealth a separate fund to be known as the Clean Environment Fund. Amounts deposited in said fund shall be used, subject to appropriation, solely for programs and projects in the management of solid waste, environmental protection, and climate change mitigation; provided, however, that no funds shall be used for costs associated with incineration.

(b) Not less than f40 per cent of amounts deposited in the Fund shall be used for recycling, composting and solid waste source reduction projects and programs.

(c) Not less than an additional 20 per cent of amounts deposited in the Fund shall be used for recycling and other solid waste projects and programs.

(d) Not more than 40 per cent of amounts deposited in the fund shall be used for other environmental programs consistent with the purposes of the “bottle bill”, so-called.

Section 323H. If the redemption and recycling targets set in section 323I and the refill targets set in Section 323J are met, the monies in the Clean Environment Fund established in section 323G shall be used for projects and programs in line with the parameters set out in section 323G. If the redemption and recycling targets set in Section 323I or the refill targets set in Section 323J are not met, the monies shall be reinvested into the deposit return system at the discretion of the department until such time as the targets are met.

Section 323I. (a) Beginning 2 years after the start date at least 60 per cent of all beverage containers shall be redeemed and recycled;

(b) beginning 3 years after the start date, at least 75 per cent of all beverage containers shall be redeemed and recycled;

(c) beginning 5 years after the start date, at least 85 per cent of all beverage containers shall be redeemed and recycled; and

(D) beginning 8 years after the start date, at least 95 per cent of all beverage containers shall be redeemed and recycled.

Section 323J. The department shall require each producer of beverage containers to plan for and invest in refillable container systems so that:

(1) 2 years after the start date, 10 per cent of beverage containers are returned and refilled;

(2) 5 years after the start date, 20 per cent of beverage containers are returned and refilled;

(3) 8years after the start date, 50 per cent of beverage containers are returned and refilled;

(4) 10 years after the start date, 70 per cent of beverage containers are returned and refilled; and

(5) 15 years after the start date, 90 per cent of beverage containers are returned and refilled.

SECTION 7. Said chapter 94 is hereby further amended by striking out section 325 and inserting in place thereof the following section:-

Section 325. (a) Beginning 2 years after the start date, no person or entity may sell, offer for sale or distribute into the commonwealth any beverage container containing any of the following toxic substances:

(1) ortho-phthalates;

(B2 bisphenols;

(3) Per- and polyfluoroalkyl substances, or PFAS;

(4) lead and lead compounds;

(5) hexavalent chromium and compounds;

(6) cadmium and cadmium compounds;

(7) mercury and mercury compounds;

(8) benzophenone and its derivatives;

(9) halogenated flame retardants;

(10) perchlorate;

(11) formaldehyde;

(12) toluene;

(13) antimony and compounds; and

(14) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol).

(b) Beginning 2 years after the start date, no person or entity shall sell, offer for sale or distribute for use in the commonwealth any beverage container containing:

(1) polyvinyl chloride;

(2) polystyrene; or

(3) polycarbonate.

(c) Beginning 3 years after the start date, and every 3 years thereafter, the department shall designate at least 10 additional toxic substances or families of toxic substances that may no longer be used in beverage containers unless the department determines there are not 10 toxic substances or families of toxic substances that are required to be banned from use in beverage containers.

(d) Any producer that violates this section shall be subject to a fine for each violation not to exceed $50,000 per violation. For the purposes of this section, each product line that is sold, offered for sale or distributed to consumers via retail commerce in the commonwealth, including through an internet transaction, in violation of this section shall be considered a violation.

SECTION 8. Section 326 of said chapter 94, as so appearing, is hereby amended by striking out, in line 4, the words “three hundred and twenty-three F” and inserting in place thereof the following words:- section 323G.

SECTION 9. Section 327 of said chapter 94, as appearing in the 2020 Official Edition, is hereby amended by adding the following paragraph:

Any citizen of the commonwealth may bring an action in court against any person, producer or agency to enforce sections 321 through 327A, inclusive. A citizen who prevails in an action brought pursuant to

this section may recoup damages, attorney’s fees, other costs associated with bringing the action and civil penalties that the non-prevailing party shall be required to pay as fines.

SECTION 10. Said chapter 94 is hereby further amended by inserting after section 327 the following section:-

Section 327A.(a) A producer, or its designated producer responsibility organization, shall annually make available on a publicly available website a report that contains:

(1) the per container quantity of beverage containers sold or imported and the per container quantity of beverage containers that were redeemed and recycled with a manufacturer, by sub-material type, beverage category and state, for the year covered by the report and each prior year;

(2) management of the beverage containers, including redemption and recycling rates, by sub-material type and beverage category, for the year covered by the report and each prior year;

(3) data on the final destination and quantity of reclaimed beverage containers, by sub-material type, including the form of any beverage containers exported;

(4) contamination in the recycling stream of the beverage containers;

(5) collection service vendors and collection locations, including: (i) the geographic distribution of collection; (ii) distance to population centers; (iii) hours of operation; (iv) actions taken to reduce barriers to collection by expanding dealer or redemption center locations; and (v) frequency of collection availability;

(6) efforts to reduce environmental impacts at each stage of the lifecycle of the beverage containers;

(7) expenses of producers related to the deposit return system;

(8) outreach and education efforts, including the results of those efforts;

(9) customer service efforts and results;

(10) performance relative to the redemption and recycling targets;

(11) the status of packaging innovation and design characteristics to prevent littering, make beverage containers reusable or refillable or reduce overall beverage container waste; and

(12) any other information that the department determines to be appropriate.

(b) Producers, or their designated producer responsibility organizations, shall make efforts to coordinate reporting under subsection (a) to provide for consistency of information across a category of beverage containers.

(1) collection and recycling to provide an accounting of the collection and recycling of beverage containers that are not produced by producers; and

(2) beverage containers of brand names found in litter to provide for an accounting of litter that continues to create pollution.

(d) Not later than 1 year after the start date, and annually thereafter, the department shall prepare and make publicly available a report describing:

(1) the effect of this part on costs incurred by state and local governments for the management and cleanup of beverage containers; and

(2) any reductions in state and local taxes as a result of any reductions of costs described in paragraph (1).

(e) A producer, or its designated producer responsibility organization, shall not govern the terms of this deposit return system, shall not receive any unclaimed deposits unless all the targets detailed herein are met, and shall act at all times in good faith so as to optimize recycling and reuse and decrease toxicity, as defined herein.

SECTION 11.For the purposes of this act the term “start date” shall mean the effective date of this act.

SECTION 12. This act shall take effect 180 days after its passage.

Name:	District/Address:	Date Added:
Michelle L. Ciccolo	15th Middlesex	1/20/2023
David M. Rogers	24th Middlesex	2/13/2023
Jack Patrick Lewis	7th Middlesex	2/13/2023
Edward R. Philips	8th Norfolk	3/1/2023
Jason M. Lewis	Fifth Middlesex	3/1/2023
Joanne M. Comerford	Hampshire, Franklin and Worcester	3/1/2023
Lindsay N. Sabadosa	1st Hampshire	3/8/2023
Brian W. Murray	10th Worcester	3/8/2023
Natalie M. Higgins	4th Worcester	3/28/2023
Tommy Vitolo	15th Norfolk	4/10/2023
Kristin E. Kassner	2nd Essex	4/10/2023
Margaret R. Scarsdale	1st Middlesex	6/27/2023
Samantha Montaño	15th Suffolk	6/28/2023
Erika Uyterhoeven	27th Middlesex	8/16/2023
Kate Donaghue	19th Worcester	2/8/2024