Bill S.2830

FILED ON: 6/17/2024

SENATE . . . . . . . . . . . . . . No. 2830

The Commonwealth of Massachusetts

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

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An Act to reduce plastics.

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. The General Laws are hereby amended by inserting after chapter 21O the following chapter:-

CHAPTER 21P.

MASSACHUSETTS PLASTICS REDUCTION ACT

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

“Bag”, a container made of flexible material with an opening at the top, commonly used to carry things.

“Carryout bag”, a bag provided to a customer to hold items purchased from or serviced by a business, retailer, organization or other entity; provided, however, that “carryout bag” shall not include a non-handled bag: (i) provided by a pharmacy to a customer purchasing prescription medication; (ii) used to protect items from damaging or contaminating other purchased items placed in a recycled paper bag or a reusable grocery bag; (iii) provided to contain an unwrapped food item; (iv) used to protect articles of clothing on a hanger; (v) used to prevent frozen food items from thawing; (vi) provided or made available to a customer purchasing raw meat, uncooked seafood or other similar products; or (vii) used to protect small items from loss.

“Customer”, a person who purchases or otherwise receives goods, services or materials from a business, organization, corporation or other entity.

“Department”, the department of environmental protection.

“Disposable”, designed to be discarded after a single or limited number of uses and not designed or manufactured for long-term multiple reuse.

“Food service ware”, disposable products used for serving or transporting foods or beverages for human consumption, including, but not limited to, plates, bowls, trays, cups, cartons, hinged or lidded containers, straws, stirrers, cup spill plugs, cup sleeves, condiments containers, utensils, cocktail sticks or picks, toothpicks, film wrap and napkins; provided, however, that “food service ware” shall not include detachable lids for beverage cups or food containers, coolers or ice chests.

“Plastic”, any synthetic or semi-synthetic material made partially or entirely from fossil fuel-based petrochemical polymers that retains its shape during its lifecycle, including, but not limited to, polystyrene, polyethylene, polypropylene and polycarbonate.

“Postconsumer recycled material”, material used in a recycled paper bag that would otherwise be destined for solid waste disposal, having completed its intended end use and product life cycle, and that does not comprise any material or byproduct generated from, and commonly reused within, an original manufacturing and fabrication process.

“Recycle”, to separate, dismantle or process the materials, components or commodities in materials for the purpose of preparation for use or reuse in new products or components; provided, however, that “recycle” shall not include energy recovery or energy generation by means of combustion, such as pyrolysis, gasification or other heat chemical conversion processes, or landfill disposal.

“Recycled paper bag”, a paper bag that is 100 per cent recyclable and contains not less than 50 per cent postconsumer recycled material.

“Reusable bag”, a bag that: (i) is made of machine-washable cloth, fabric, hemp or other woven or non-woven fibers; (ii) has handles that are stitched with thread and not heat-fused; and (iii) is designed and manufactured for multiple uses; provided, however, that a “reusable bag” shall not include a bag made of plastic film of any thickness.

“Serviced” or “Servicing”, the past or present act of cleaning, repairing, improving, refinishing or altering an item owned by a customer by a person engaged in a retail business of customarily providing such services, including, but not limited to, dry cleaning and tailoring articles of clothing, jewelry repair and shoe and leather repair.

Section 2. (a) A retailer or charging entity shall not provide a customer with a carryout bag unless such carryout bag is a recycled paper bag or a reusable bag; provided, however, that a customer shall be charged not less than 10 cents per recycled paper bag; and provided further, that a recycled paper bag purchased under this section shall not be subject to taxation pursuant to chapter 64H or 64I.

(b) Five cents per recycled paper bag sold shall be remitted by the retailer or charging entity to the department of revenue at the same time and in the same manner as sales taxes are due to the commonwealth. The department of revenue shall deposit such amounts into the Plastics Environmental Protection Fund established under section 2EEEEEE of chapter 29. The department of revenue may promulgate regulations to facilitate the collection of the fee set forth in this paragraph. The retailer or charging entity shall retain the remainder of the amount charged to customers.

(c) Nothing in this section shall prohibit the sale or offering for sale of packages containing several bags, products or goods with a protective or other bag received from a manufacturer or distributor or bags offered for sale as a product or merchandise that are not carryout bags.

(d) This section shall not apply to: (i) bags otherwise required to be used under state or federal law; or (ii) a nonprofit organization, charity or religious institution in the provision or distribution of food, clothing or other items at no cost or substantially reduced cost.

(e) A business with only 1 store location of not more than 4,000 square feet of retail selling space and not more than 10 employees, and which provided not more than 10,000 carryout bags in total during the previous calendar year, shall not be required to collect or remit bag fees as otherwise set forth in this section.

Section 3. (a) Except as provided in subsection (b), a retailer or charging entity shall not provide a customer with disposable food service ware unless requested by the customer.

(b) A retailer or charging entity may make disposable food service ware available to a consumer for self-service to allow for non-bundled, single-use food service ware to be obtained.

Section 4. (a) For the purposes of this section, “state agency” shall mean any department of state government including the executive, legislative and judicial branches, and any independent state authority, quasi-public authority, board, district, commission, instrumentality or agency.

(b) State agencies shall not expend state funds to procure single-use plastic bottles that have a capacity of not more than 21 fluid ounces; provided, however, that state agencies shall be exempt from this requirement if such exemption is required to provide for disability or accessibility related accommodations.

(c) Subsection (b) shall not apply: (i) when no alternative is available or practicable; (ii) when necessary to protect health, safety and welfare; (iii) when compliance with this section would conflict with contract requirements or labor agreements in existence as of the effective date of this section or agreements solicited before the effective date of this section; and (iv) to prepare for or respond to an emergency.

Section 5. The department shall establish a statewide program to provide for the recycling of bulk plastic materials, including, but not limited to child passenger restraints as defined in section 1 of chapter 90, and may: (i) implement local or regional bulk plastic recycling programs; (ii) accept applications from municipalities for grants and to award grants to assist in the development or establishment of local and regional bulk plastic recycling projects; and (iii) partner or contract with private organizations to assist in the development or establishment of a bulk plastic recycling program.

Section 6. A municipality shall not pass, adopt, promulgate or otherwise effectuate an ordinance, by-law or other rule or regulation inconsistent with this chapter.

Section 7. Except as otherwise provided, the department shall promulgate regulations to implement and enforce this chapter. The department may promulgate regulations to increase the minimum postconsumer recycled material required for recycled paper bags.

Section 8. The department shall establish and assess civil administrative penalties pursuant to section 16 of chapter 21A for violations of this chapter.

The superior court department of the trial court may assess civil penalties as set forth in this section and enjoin violations of, and grant such additional relief as it deems necessary or appropriate to secure compliance with, the provisions of this chapter, or any regulation, rule or other order or action adopted or issued pursuant to this section. The attorney general and district attorneys may bring enforcement actions under this section in the superior court department of the trial court or any other court of competent jurisdiction.

SECTION 2. Chapter 29 of the General Laws is hereby amended by inserting after section 2DDDDDD the following section:-

Section 2EEEEEE. (a) There shall be a Plastics Environmental Protection Fund to be expended, without prior appropriation, by the department of environmental protection. The fund shall consist of: (i) revenue from appropriations or other money authorized by the general court and specifically designated to be credited to the fund; (ii) interest earned on such revenues; (iii) funds from public and private sources, including, but not limited to, gifts, grants, donations and settlements received by the commonwealth that are designated to be credited to the fund; (iv) federal funds paid to the commonwealth designated to be credited to the fund; and (v) monies paid to the commonwealth pursuant to chapter 21P, including all funds collected by the department of revenue pursuant to section 2 of said chapter 21P. The fund shall be expended to: (i) improve the air, water, soil or other environmental conditions for low and moderate income communities; (ii) provide reusable bags at no-cost to low and moderate income communities and individuals receiving benefits administered by the department of transitional assistance at no cost; (iii) issue grants to small businesses that are incorporated and have principal places of business in the commonwealth to assist in the reduction of plastic use within each business, including, but not limited to, small businesses in the food service and production industries; and (iv) provide multilingual, culturally competent educational materials and programming, including, but not limited to, experiential education regarding bag reuse and recycling and other aspects of environmental protection. Any bond proceeds deposited into the fund shall be kept separate from any and all other funds deposited into the fund. No expenditure from the fund shall cause the fund to be in deficiency at the close of a fiscal year. Monies deposited into the fund that are unexpended at the end of a fiscal year shall not revert to the General Fund and shall be available for expenditure in the subsequent fiscal year.

(b) The department of environmental protection shall administer the fund. Annually, not later than March 1, the department shall report on the activities of the fund from the previous calendar year to the senate and house committees on ways and means and the joint committee on environment and natural resources. The department may promulgate regulations or issue other guidance to implement this section. The department shall consult with the department of transitional assistance to equitably implement the provision of no-cost reusable bags as set forth in subsection (a). The department shall consult with the Massachusetts Growth Capital Corporation to equitably implement the provision of grants to small businesses to assist in the reduction of plastic use.

SECTION 3. Chapter 94 of the General Laws is hereby amended by inserting after section 329 the following section:-

Section 330. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Covered entity”, a person, corporation, business or other entity that manufactures, produces or packages a covered product and shall include, but not be limited to, a wholesaler, supplier or retailer that is responsible for labeling a covered product.

“Covered product”, a premoistened, nonwoven disposable wipe composed in part or entirely of petrochemical-derived fibers that is reasonably likely to be flushed down a toilet or otherwise caused to enter a plumbing, septic or sewer system; provided, however, that a “covered product” shall include, but not be limited to, baby wipes, disinfecting wipes and facial wipes; provided further, that a “covered product” shall not include wipes composed entirely of wood pulp fibers and engineered to lose strength and degrade after disposal.

(b) A covered entity shall clearly label a covered product that the entity produces, manufactures, packages, offers for sale or sells in the commonwealth with the phrase “Do Not Flush”.

(c) Whoever violates this section, or any regulation, rule or other order or action adopted or issued pursuant to this section, shall be subject to a fine, civil penalty or, notwithstanding the limitations set forth in section 16 of chapter 21A, civil administrative penalty of not more than $2,500 per violation. Producing, manufacturing, packaging, offering for sale or selling 1 or more units of the same covered product in violation of this section shall constitute a single violation for each day such violation occurs. This shall be in addition to any other penalty or remedy prescribed by law.

The attorney general and district attorneys shall enforce this section. The office of consumer affairs and business regulation may refer violations of this section to a district attorney or the attorney general for enforcement, including, but not limited to, for actions assess monetary penalties and enjoinment. The superior court department of the trial court shall have jurisdiction to assess civil penalties as set forth in this section and to enjoin violations of, and grant such additional relief as it deems necessary or appropriate to secure compliance with, this section, or any regulation, rule or other order or action adopted or issued pursuant to this section.

(d) The office of consumer affairs and business regulation may promulgate regulations to implement and enforce this section.

SECTION 4. The department of environmental protection shall conduct a culturally competent and linguistically diverse outreach and education program regarding non-flushable wipes consistent with section 330 of chapter 94 of the General Laws. In preparing and delivering the outreach and education program, the department shall consult with the Massachusetts Water Resources Authority, the Greater Lawrence Sanitary District, Upper Blackstone Clean Water, the city of Springfield water and sewer commission, the city of Pittsfield wastewater treatment plant division, the city of New Bedford department of public infrastructure wastewater division, the city of Fall River sewer commission, the city of Brockton department of public works sewer division, the town of Franklin water and sewer division, the city of Attleboro wastewater department and the Barnstable county Alternative Septic System Tracking program.

SECTION 5. Not later than December 31, 2024, the department of environmental protection shall publish on its website and submit to the senate and house committees on ways and means and the joint committee on environment and natural resources a report stating its progress on implementing the composting and other components of the department’s Organics Action Plan of November 2023. The report shall clearly indicate any legislative changes or resources necessary to increase the rate at which food and organic waste is composted and reduce the contamination of waste and recycling streams by compostable materials.

SECTION 6. There shall be a special legislative commission for the purpose of recommending to the general court an extended producer responsibility plan for the commonwealth. The commission shall include: the commissioner of environmental protection or a designee, who shall serve as chair; the commissioner of agricultural resources or a designee; the director of the Massachusetts office of business development or a designee; 1 person to be appointed by the attorney general, who shall have expertise in consumer protection; 1 person to be appointed by the senate chair of the joint committee on environment and natural resources; 1 person to be appointed by the minority leader of the senate; 1 person to be appointed by the house chair of the joint committee on environment and natural resources; 1 person to be appointed by the minority leader of the house of representatives; 1 person to be appointed by the Massachusetts Association of Regional Planning Agencies; and 11 additional persons to be appointed by the chair, 1 of whom shall be a packaging producer or retailer, 1 of whom shall be a waste hauler or material recovery facility operator, 1 of whom shall be a municipal official or employee, 1 of whom shall be a food producer or farmer, 1 of whom shall represent a statewide environmental protection organization, 1 of whom shall represent a statewide or community environmental justice organization, 1 of whom shall represent a regional or community environmental protection organization, 1 of whom shall represent a freshwater or marine litter program, 1 of whom shall represent a regional wastewater management entity, 1 of whom shall be an environmental health scientist and 1 of whom shall be a human health scientist. The chair shall consider geographic diversity in making appointments to the commission. The chair may select a third-party facilitator for the commission. The extended producer responsibility plan shall include: (i) recommendations on specific extended producer responsibility goals and strategies for product categories including, but not limited to, paint, mattresses, electronics and packaging; (ii) recommendations on a material cost differentiation system; (iii) a proposed structure for producer payments and collector reimbursements; (iv) information on net costs of residential curbside collection or transfer station operations, on-site processing costs for each readily recyclable material type, management costs of non-readily recyclable materials and other cost factors; and (v) methods for incentivizing packaging production and waste stream contamination reduction, which may include reuse and lifespan extensions. Not later than March 1, 2026, the commission shall submit its recommendations and related factual findings to the senate and house committees on ways and means and the joint committee on environment and natural resources and the department of environmental protection shall publish said recommendations and related factual findings on its website.

SECTION 7. Except as otherwise provided herein, this act shall take effect on January 1, 2025.

SECTION 8. Section 3 shall take effect on January 1, 2026.