Bill H.893

HOUSE DOCKET, NO. 3944 FILED ON: 1/20/2023

HOUSE . . . . . . . . . . . . . . . No. 893

By Representative Roy of Franklin, a petition (accompanied by bill, House, No. 893) of Jeffrey N. Roy relative to enhancing circularity in recycling. Environment and Natural Resources.

The Commonwealth of Massachusetts

_______________

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

_______________

An Act relative to enhancing circularity in recycling.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

The General Laws are hereby amended by inserting after Chapter 94I the following chapter:-

CHAPTER 94J.

ENHANCING CIRCULARITY IN RECYCLING.

Section 1. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:-

"Beverage", any ready to drink liquid for human consumption. Beverage shall not include infant formula, medical food, fortified oral nutritional supplements used for persons who require supplemental or sole source nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes or other medical conditions as determined by the department.

"Covered product", an item in 1 of the following categories subject to minimum post-consumer recycled content requirements: (i) plastic trash bags; (ii) plastic carry-out bags; (iii) plastic beverage containers; (iv) rigid plastic containers, including food containers and household cleaning and personal care product packaging. Covered product shall not include any type of container or bag for which the commonwealth is preempted from regulating content of the container material or bag material under federal law.

"Department", department of environmental protection.

"Food", articles used for food or drink for consumption by humans or other animals, and articles used for components of any such article.

"Glass container", a container made of glass that is filled with a food or beverage.

"Hot fill process", a process to sterilize both a food product and its container during the food packaging process, in which the food product is heated to a temperature between 194 and 203 degrees Fahrenheit and then injected into the container.

"Paper carryout bag", a bag made of paper that is sold or provided by a store to a customer for the purpose of containing, carrying, and transporting food, beverages or retail goods.

"Person", an individual, corporation, company, association, society, firm, partnership or joint stock company.

"Plastic", a synthetic material made from linking monomers through a chemical reaction to create an organic polymer chain that can be molded or extruded at high heat into various solid forms retaining their defined shapes during the life cycle and after disposal. Plastic shall not include material that is designed to be composted in a municipal or industrial aerobic composting facility and that is certified by a recognized third-party independent verification body as meeting the standards therefor established by the American Society for Testing and Materials in ASTM D6400 or ASTM D6868.

"Plastic beverage container", an individual, sealable, separate bottle, can, jar, carton or other container made of plastic that is intended to contain a beverage up to 2 gallons in capacity. Plastic beverage container does not include: (i) refillable beverage containers, such as containers that are sufficiently durable for multiple rotations of their original or similar purpose and are intended to function in a system of reuse; (ii) rigid plastic containers or plastic bottles that are or are used for medical devices, medical products that are required to be sterile, nonprescription and prescription drugs or dietary supplements; (iii) liners, bladders, caps, corks, closures, labels and other items added but otherwise separate from the structure of the bottle or container; and (iv) containers certified as industrial compostable pursuant to ASTM D6400 or D6868.

"Plastic carryout bag", a bag made of plastic, of any thickness, whether woven or nonwoven, that is sold or provided by a store to a customer for the purpose of containing, carrying and transporting food, beverages or retail goods.

"Plastic trash bag", a bag that is made of plastic, is at least 0.70 mils thick, and is designed and manufactured for use as a container to hold, store, or transport materials to be discarded, composted or recycled, and includes, but is not limited to, a garbage bag, lawn or leaf bag, can-liner bag, kitchen bag or compactor bag.

"Postconsumer material", a material or product that has completed its intended end use and product life cycle, and which has been separated from the solid waste stream for the purposes of collection and recycling. Postconsumer material shall not include pre-consumer or post-industrial secondary waste material or materials and by-products generated from, and commonly used within, an original manufacturing and fabrication process.

"Producer". the following person responsible, including a manufacturer, for compliance with minimum post-consumer recycled content requirements for a covered product sold, offered for sale or distributed in or into the commonwealth: (i) ff the covered product is sold under the producer’s own brand or lacks identification of a brand, the producer is the person who manufactures the covered product; (ii) if the covered product is manufactured by a person other than the brand owner, the producer is the person who is the licensee of a brand or trademark under which a covered product is sold, offered for sale or distributed in or into the commonwealth, whether or not the trademark is registered in the commonwealth, unless the manufacturer or brand owner of the covered product has agreed to accept responsibility under this chapter; or (iii) if there is no person described in this chapter over whom the commonwealth can constitutionally exercise jurisdiction, the producer is the person who imports or distributes the covered product in or into the commonwealth. Producer shall not include: (a) government agencies, municipalities or other political subdivisions of the commonwealth; (b) registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations.

"Rigid plastic container", a container made of plastic that has a relatively inflexible finite shape or form, has a minimum capacity of 8 fluid ounces or its equivalent volume and a maximum capacity of 5 fluid gallons or its equivalent volume, and is capable of maintaining its shape while empty or while holding other products.

Section 2. (1) Rigid plastic containers sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this chapter, all rigid plastic containers sold, offered for sale, or used in association with the sale or offer for sale of a product in the commonwealth by a producer shall contain, on average and in aggregate, at least 10 per cent postconsumer recycled content.

(3) Beginning 5 years after the effective date of this chapter, and every 3 years thereafter, the percentage of postconsumer recycled content required on average and in aggregate for rigid plastic containers pursuant to this section shall increase by 10 per cent, until reaching 50 per cent.

(4) A rigid plastic container shall be exempt from the postconsumer recycled content requirements of this section if it: (i) is associated with a product produced in or brought into the commonwealth that is destined for shipment to a destination outside the commonwealth, and that remains with the product upon shipment; (ii) contains drugs, dietary supplements, medical devices, or cosmetics as those terms are defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec.301 et seq.; (iii) contains toxic or hazardous products regulated under the "Federal Insecticide, Fungicide, and Rodenticide Act," 7 U.S.C. sec.136 et seq.; (iv) is manufactured for use in the shipment of hazardous materials and is: (a) prohibited from being manufactured with used material by federal packaging material specifications set forth in 49 C.F.R. sec.178.509 and 49 C.F.R. sec.178.522, (b) is subject to the testing standards set forth in 49 C.F.R. sec.178.600 through 49 C.F.R. sec.178.609, or (c) is subject to the recommendations of the United Nations on the transport of dangerous goods; or (iv) is a refillable container or a reusable container. For the purposes of this paragraph, "refillable container" means a rigid plastic container that is routinely returned to and refilled by the producer with the same product packaged by the container; and "reusable container" means a rigid plastic container that is routinely reused by consumers to store the original product packaged by the container.

Section 3. (1) Plastic beverage containers sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this chapter, all plastic beverage containers shall contain, on average and in aggregate, at least 15 per cent post-consumer recycled content.

(3) Beginning 5 years after the effective date of this chapter, and every 3 years thereafter, the amount of postconsumer recycled content required on average and in aggregate for plastic beverage containers pursuant to this section shall increase by 5 per cent, until reaching 50 per cent; except the postconsumer recycled content requirement for producers who utilize a hot fill process shall not exceed 30 per cent.

(4) The provisions of this section shall not apply to a refillable beverage container. For the purposes of this section, "refillable beverage container" shall mean a beverage container that holds 150 fluid ounces or less of beverage, and which is routinely returned to the producer to be refilled and resold.

Section 4. (1) Glass containers sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this chapter, all glass containers shall contain, on average, and in aggregate, at least 35 per cent postconsumer recycled content; except that, if a producer certifies to the department that its use of postconsumer recycled content is made up of at least 50 per cent mixed-color cullet, then the glass containers shall only be required to contain, on average, at least 25 per cent postconsumer recycled content. As used in this section, "mixed-color cullet" means cullet that does not meet the American Society for Testing and Materials (ASTM) standard specifications for the color mix of color-sorted, post-filled glass as a raw material for the manufacture of glass containers.

Section 5. (1) Paper carryout bags sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this section, all paper carryout bags shall contain, on average and in aggregate, at least 40 per cent postconsumer recycled content; except that a paper carryout bag that holds 8 pounds or less shall only be required to contain, on average, at least 20 per cent postconsumer recycled content.

Section 6. (1) Plastic carryout bags sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this chapter, plastic carryout bags shall contain, on average and in aggregate, at least 20 per cent postconsumer recycled content.

(3) Beginning 5 years after the effective date of this chapter, plastic carryout bags shall contain, on average and in aggregate, at least 40 per cent postconsumer recycled content.

Section 7. (1) Plastic trash bags sold or offered for sale in the commonwealth shall comply with the minimum post-consumer recycled content requirements under this section.

(2) Beginning 2 years after the effective date of this chapter,plastic trash bags shall contain on average and in aggregate the following proportion of postconsumer recycled content: (i) for plastic trash bags greater than 0.70 mils thick but less than 0.80 mils thick, at least five percent; (ii) for plastic trash bags greater than 0.80 mils thick but less than 1.00 mils thick, at least 10 percent; and (iii) for plastic trash bags equal to or greater than 1.00 mils thick, at least 20 per cent.

(3) Beginning 5 years after the effective date of this chapter, plastic trash bags shall contain on average and in aggregate the following proportion of postconsumer recycled content: (i) for plastic trash bags greater than 0.70 mils thick but less than 0.80 mils thick, at least 10 per cent; (ii) for plastic trash bags greater than 0.80 mils thick but less than 1.00 mils thick, at least 20 per cent; and (iii) for plastic trash bags equal to or greater than 1.00 mils thick, at least 40 per cent.

(4) This section shall not apply to a plastic trash bag that is designed and manufactured to hold, store or transport hazardous waste or regulated medical waste. For the purposes of this paragraph, "hazardous waste" and "regulated medical waste" shall meet the definition established by the department; provided however, that producers are encouraged to utilize post consumer recycled content (PCR) unless expressly prohibited.

Section 8. (1) A package or container that contains milk products, plant-based products with names that include the names of dairy foods such as "milk," medical food, food for special dietary use, or infant formula shall be exempt from the postconsumer recycled content requirements of this chapter.

(2) As used in this section the following terms shall, unless the context clearly requires otherwise, have the following meanings:

"Food for special dietary use", means the same as the term is defined in 21 U.S.C. sec. 350. "Medical food" and

"Infant formula", means the same as that term is defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec. 301 et seq.

"Medical food", means the same as that term is defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec. 301 et seq.

"Milk product", means the same as that term is defined by the United States Food and Drug Administration.

Section 9. (1) A package or container that contains food shall be exempt from the postconsumer recycled content requirements of this chapter for a period of 5 years beginning on the effective date of this chapter, except that the exemption provided in this subsection shall not apply to a plastic beverage container or a glass container filled with a beverage.

(2) The department may, in its discretion, extend the 5-year exemption. Upon expiration of the exemption, a producer shall be subject to the applicable postconsumer recycled content requirements in effect at the time of the expiration.

Section 10. (1) Products or materials sold or offered for sale in the commonwealth may be waived from the minimum post-consumer recycled content requirements as follows: (i) in order to qualify, a producer shall submit to the department documentation from a federal or state agency or certified third-party expert, demonstrating that the producer cannot comply with the postconsumer recycled content requirements for the following reason: that the producer cannot maintain compliance with applicable rules and regulations adopted by the United States Food and Drug Administration, or other applicable state or federal law, rule, or regulation and comply with the postconsumer recycled content requirements.

(2) The department may grant a waiver for a period of up to 2 years. The department shall publish any determinations to grant waivers on its website.

Section 11. (1) For the purposes of determining a producer’s compliance with the post-consumer recycled content requirement, the producer may: (i) determine compliance for the total quantity of each category of covered materials, by weight, that are sold in the commonwealth. Compliance shall be determined for each category on average and in aggregate across the category and shall not be construed as requiring compliance with the requirements for each individual covered product sold; and (ii) rely on state-specific data regarding covered product sales and material use, if available, or may alternatively rely on the same type of regional or national data.

(2) If a producer elects to rely on data derived from applicable data that is regional or national rather than state-specific as provided in clause (ii) of paragraph (1), they shall: (i) prorate the regional or national data to determine the state-specific figures based on market share or population in a manner that ensures that the percentage of post-consumer recycled plastic calculated for covered products sold in the commonwealth is the same percentage as calculated for that larger region or territory; and (ii) document the methodology used to determine those state-specific figures calculated under said clause (ii) of said paragraph (1) in the annual report.

Section 12. The department shall establish and maintain regulations allowing for a producer to discharge its obligations under this chapter by making an alternative compliance payment in an amount established by the department; provided however, that the department shall set post-consumer recycled content requirement alternative compliance payment rates at levels that shall stimulate the development of a post-consumer recycled content market. The department shall establish and maintain regulations outlining procedures by which each producer, shall annually submit for the department's review a filing illustrating the producer’s compliance with the requirements of this section and the producer’s efforts made toward achieving compliance where commercially feasible.

Section 13. (a) The department shall impose penalties on a producer that is in violation of this chapter. The department may enforce the provisions of this chapter by any of the following:

(i) issue an order requiring the person to comply;

(ii) bring a civil action;

(iii) levy a civil administrative penalty, which the department shall set at an amount that is higher than the alternative compliance payment that the producer would have paid in carrying out its obligations under this chapter;

(iv) bring an action for a civil penalty;

(v) require a producer to submit a corrective action plan; or

(vi) notify the public of a producer which, at any time during a reporting period, was not in compliance with the requirements of this chapter.

(b) The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.

(c) All penalties shall be placed into a special, non-lapsing account to be known as the Recycling Enhancement Fund. which shall be credited with all penalties collected. Moneys in the account may be utilized by the department for administrative expenses incurred in connection with this chapter for recycling public education and to stimulate the development of a post-consumer recycled content market.

Section 14. (a) Annually, on April 1, following 2 years after the effective date of this chapter, a producer that offers for sale, sells or distributes covered products into the commonwealth shall register with the department individually or through a third-party representativeve registering on behalf of a group of producers, in a form and manner as prescribed by the department, and pay an annual registration fee of $5,000. A producer that fails to register with the department pursuant to this section shall first receive a written warning. A producer that receives a written warning shall register with the department no later than 90 days after receipt of the warning. A producer that receives a written warning and that fails to register with the department within 90 days of receipt of the warning shall be subject to the penalties set forth in section 13 of this chapter.

(b) All registration fees shall be placed into a special, non-lapsing account to be known as the Recycling Enhancement Fund. Moneys in the account may be utilized by the department for administrative expenses incurred in connection with this chapter, for recycling public education and to stimulate the development of a post-consumer recycled content market.

Section 15. (1) Annually, on October 1, following 3 years and 6 months after the effective date of this chapter, each producer shall submit a report certifying, in writing, to the department the extent to which it is incompliance with the postconsumer recycled content requirements of this chapter, are otherwise exempt or have been approved for a waiver from the requirements.

(2) The producer shall set forth the specific basis for any exemptions that are claimed, and submit such proof as the Department determines necessary.

(3) The certification shall be signed by an authorized representative of the producer. A producer shall submit the certification, in the form and manner determined by the department, under penalty of perjury. The certification shall include: (i) the amount, in pounds, of not post-consumer, glass or paper; and (ii) the amount, in pounds, of post-consumer recycled material used by the producer for any products subject to the requirements of this chapter, and any other information as the department deems necessary.

(4) The department may allow independent, third-party verification organizations to verify producers’ compliance with the requirements of this chapter.

Section 16. Each producer shall maintain records, in a form prescribed by the department, that demonstrate whether, how and to what extent the producer has complied with the postconsumer recycled content requirements, or whether the producer qualifies for an exemption or waiver from the postconsumer recycled content requirements. The department may adopt specific requirements for the records required to be maintained pursuant to this section and may request the records from a producer at any time. A producer shall submit records to the department no later than 30 days after receipt of a request, unless the department extends that timeframe.

Section 17. The department may audit or investigate a producer, at any time, to assess the producer’s compliance with the requirements of this chapter. Each year, the department may audit, or cause to be audited, a random sample of producers in order to determine compliance with this chapter. A producer shall cooperate fully with any audit or investigation conducted pursuant to this section. The department may require a producer to pay the costs of an audit conducted pursuant to this section.

Section 18. The department shall annually publish a list of registered producers, their compliance status and other information the department deems appropriate on the department’s website.

Section 19. Not later than 2 years after the effective date of this chapter, the department shall adopt rules and regulations necessary for the implementation of this chapter. Prior to the adoption of rules and regulations, and as necessary thereafter, the department may develop guidance as necessary for the implementation of this chapter. The department shall publish any such guidance on its website.

Section 20. Not later than 5 years after the effective date of this chapter, the department shall prepare and submit an assessment to the governor and the general court evaluating this chapter’s effectiveness in stimulating the recycling markets in the commonwealth and making any recommendations for legislative or administrative actions necessary to further the purposes of this chapter, including recommendations for whether and how the commonwealth should encourage, require or support other uses of recycled material.

Section 21. Any proprietary information or trade secrets included in any registration, certification, alternative compliance plan, corrective action plan, or any other record submitted to the department shall not be made available to the general public.

Name:	District/Address:	Date Added:
Jeffrey N. Roy	10th Norfolk	1/20/2023