Massachusetts House Bill 4851 (2022) - (Amended)

Covered materials include any part of a package or container, including material that is used for the containment, protection, handling, delivery, and presentation of a product that is sold, offered for sale, imported, or distributed in the state, including through internet transactions, regardless of recyclability or compostability.

Covered materials include any part of a package or container, including material that is used for the containment, protection, handling, delivery, and presentation of a product that is sold, offered for sale, imported, or distributed in the state, including through internet transactions, regardless of recyclability or compostability.

Beverage containers are excluded from covered products.

Excluded from the definition of packaging material are items used in long term storage or protection for a 5 year minimum, beverage containers subject to existing bottle deposit legislation, literary text or other bound books, newspaper, and paper that becomes unsafe or unsanitary to recycle.

Covered entities include all residential units.

Covered entities include schools.

Overall, "Producer", with respect to a covered material, means a party that has legal ownership of the brand of a product for sale, use, or distribution in the state, including online retailers who sell into the state, that utilizes covered material. The term producer is defined by a tiered list based on priority of responsibility for covered products. The highest priority is the person who manufactures a product under the manufacturer’s own brand that uses covered material.

If the brand definition does not apply, the producer is the owner or licensee of a trademark under which a covered material is used in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not the trademark is registered.

If brand and licensee definitions do not apply, the producer is the person who imports the product that uses the covered material into the state for use in a commercial enterprise, sale, offer for sale or distribution. The definition of “producer” includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

Producers with an annual revenue of less than $1 million or producers who produce less than one metric ton of covered products are excluded from the definition of producer.

Nonprofits are exempt from the definition of producer.

All producers that fall under the producer definition must register with and be a member of a Producer Responsibility Organization. If more than 1 PRO is established, the PROs may establish a coordinating body to manage the relationship between the PROS, collectors, and the department.

PROs are required to be a nonprofit organization.

The producers or PRO are responsible for all financial costs of the program. The PRO will reimburse municipalities that choose to continue providing service, either directly or through providers. If a municipality does not choose to provide service, the PRO is responsible for contracting private service providers to fulfill program requirements.

The cost coverage must include funds to reimburse participating collectors and to fund operating costs, like collection, processing, transportation and recycling or disposal of covered materials.

The cost coverage must include funds to make investments in education, public outreach, and communication. The PRO shall ensure that not less than 2 percent is used for education.

The cost coverage must include funds to administer the program including costs incurred by the department in the administration of the packaging and paper products program, including oversight, issuance of any regulations, conducting the needs assessment, any third-party facilitators hired for the advisory committee, planning, plan review, including proposed modifications to the plan, compliance, enforcement, and sufficient staff positions to administer the program.

The cost coverage must include funds to make investments in infrastructure.

The fee structure includes a base fee rate for all covered products sold or distributed in this state. The base fee paid by each producer is for producers generating between one and 15 tons of covered materials annually.

The fee structure takes into consideration different materials and the costs associated with readily-recyclable and non-readily-recyclable covered materials.

The fee structure must incentivize operational efficiency and contamination reduction.

In establishing the criteria for a fee adjustment, a stewardship organization must consider factors that include increased use of post-consumer recycled content material.

In establishing criteria for the fee adjustment, a stewardship organization must consider factors that include reuse and lifespan extension of packaging.

In establishing criteria for the fee adjustment, a stewardship organization must consider factors that include the minimum quantity of packaging necessary.

In establishing the criteria for a fee adjustment, a stewardship organization must consider factors that include covered material waste reduction, use of readily-recyclable materials to manufacture covered materials, and domestic processing of covered materials.

The stewardship organization must include in their program plan how they intend to achieve and assist collectors and facilities in achieving a combined reduction and recycling rate of no less than 65% by weight by July 1, 2027, no less than 80% by weight by July 1, 2031, and no less than 100% by weight by July 1, 2035 of covered materials managed by the organization.

The stewardship organization must include in their program plan how they intend to meet the proposed minimum post-consumer recycled material content rates.

The stewardship organization plan must ensure that no less than 8% of their budget is used for infrastructure.

Producers of covered materials sold or distributed into the state shall establish a producer responsibility organization(s) within 6 months following the enactment of this legislation.

The PRO must submit a program plan to the state within 8 months of the effective regulation.

The state will review the PRO plan and any amendments to the plan. The state will approve or deny the plan within 90 days of receipt.

If the state determines the PRO's plan is not operating within the conditions set within the plan, the state can require amendments or corrective actions.

No later than 180 days after the approval of a PRO's plan a producer must report the total tons of each type of packaging material sold or distributed in the state to a PRO including, the methodology for calculation, the packaging material characteristics relevant to fee adjustment criteria, and a list of all brands associated with said packaging material. The PRO is required to submit an annual report to the state. The schedule will be determined by the state.

The PRO must include consistent statewide, easy to understand, and accessible recycling instructions in the public outreach, education, and communications.

The PRO must include promotion of the proper end-of-life management in the public outreach, education, and communications.

The PRO must include promotion of how to prevent litter in the public outreach, education, and communications.

Education programs must coordinate across programs or regions to avoid confusion for consumers and be developed in consultation with local governments and other stakeholders.

The advisory committee may request additional data and information from the producer and recommend amendments to the annual reporting requirements for producers.

The department shall establish an advisory committee that represents a range of interested and engaged persons relevant to the category of covered materials of the applicable program, including the commissioner of the department of environmental protection or a designee, one member who shall be appointed by the attorney general and who shall have expertise in consumer protection, and individuals representing producers, retailers, waste haulers, material recovery facility operators, municipalities, environmental and community organizations, freshwater and marine litter programs, regional end-of-life management of covered materials, and environmental and human health scientists.

Each individual serving on an advisory committee may represent only one (1) member of each category listed and the organization or coordinating body shall ensure that no category has a disproportionate representation on an advisory committee.

The department may select a third-party facilitator for the advisory committee. The department shall hold an advisory meeting at least quarterly; request and consider comments from the advisory committee prior to the submission to the department of the plan or any modifications to the plan; and include a summary of advisory committee engagement and input in the report.

Recycling is defined as to separate, dismantle or process the materials, components or commodities in covered materials for the purpose of preparing the materials, components or commodities for use or reuse in new products or components.

Recycling does not include energy recovery or energy generation by means of combustion, pyrolysis, gasification, and any other high-heat chemical conversion processes, or landfill disposal of discarded covered products or discarded product component materials.

The state will establish a toxic substance list and update the list every 3 years. Covered material categories or types shall not be considered readily-recyclable, recyclable, compostable, or reusable if they contain toxic substances.

The department shall conduct an initial needs assessment within six months of the enactment of this legislation. The needs assessment shall include an assessment of the impact of the newspaper industry on recycling infrastructure and the environment in the state. The initial needs assessment may also include recommendations for a producer responsibility organization plan. The needs assessment shall be published and publicly accessible on the department’s website. The department shall conduct a needs assessment every 4 years with the advisory committee.

The department shall regularly publish a list of readily recyclable materials, developed through coordination with the producer responsibility organization and material recovery facilities or other entities managing covered materials. The department shall provide for a transitional period between the time that a type of covered material is determined to be readily recyclable or to not be readily recyclable and the time that such determinations will be effective for the purposes of determining producer payments and collector reimbursements.

A producer (or group of producers) may develop and operate an alternative collection program to collect and manage a type or types of covered material sold, offered for sale or distributed for sale in or into the commonwealth by the producer or producers. A producer that manages a type of covered material under an approved alternative collection program through reduction, reuse, recycling may wholly or partially offset the producer's payment obligations under the packaging and paper product program with respect to that same type of covered material only.