Illinois Senate Bill 3795 (2024) - (Failed)

Packaging is defined as materials used for the containment or protection of products. It includes paper, plastic, glass or metal, or a mixture. Single-use bags are included but not limited to shopping bags. Nondurable materials used in storage, shipping, or moving, such as packing materials, moving boxes, file boxes, and folders are also included. However, specialty packaging items only used in industrial or manufacturing processes are excluded.

Food serviceware includes paper or plastic plates, wraps, cups, bowls, pizza boxes, cutlery, straws, lids, bags, aluminum foil, or clamshells or similar containers that are generally intended for single-use and sold to a retailer or a dine-in food establishment or a take-out food establishment, regardless of whether the item is used to pre-package food for resale, is filled on-site for food ordered by a customer or is resold as is.

Printing and writing paper includes newspapers, magazines, flyers, brochures, booklets, catalogs, telephone directories, and paper used for copying, writing, or other general use.

Exclusions include:

1. Beverage containers covered under existing bottle legislation.
2. Bound books.
3. Napkins, paper towels, or other paper intended to be used for cleaning or the absorption of liquids.

Other exclusions include:
Rigid pallets, specialty packaging items only used in industrial or manufacturing processes, pallet wrap, refillable propane tanks, packaging related to containers for architectural paint, agricultural items, items used by a nursery, packaging for medical drugs, infant formula, wine and spirit containers subject to existing deposit legislation, and toxic or hazardous materials labeled to be disposed of in a manner other than recycling.

For items sold in packaging at a physical retail location in this state: If the item is sold in packaging under the manufacturer’s own brand then the brand is the producer. If it is sold in packaging that lacks brand identification the producer of the packaging is the person that manufactures the packaged item.

For printing and writing paper that is a magazine, newspaper, catalog, telephone directory, or similar
publication, the producer is the publisher. For all other printing and writing paper, the producer is the person who manufactures the printing and writing paper under the manufacturer's own brand.

For items sold or distributed in packaging in or into this State via remote sale or distribution, the producer of packaging used to directly protect or contain the item is the producer or the producer of packaging used to ship the item to a consumer is the person who packages and ships the item to the consumer.

If the item is manufactured by a person other than the brand owner, the producer of the packaging is the person that is the licensee of a brand or trademark under which a packaged item is used in a commercial enterprise, sold, offered for sale, or distributed in or into this state, whether or not the trademark is registered in this state.

If the printing and writing paper is manufactured by a person other than the brand owner, the person whom the owner or licensee of a brand or trademark under which the printing and writing paper is used in a commercial enterprise, sold, offered for sale, or distributed in or into this State, whether or not the trademark is registered in this State.

If there is no brand or licensee, the producer of the packaging is the person that imports the packaged item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in the state.

If there is no brand of licensee, the producer is the person who imports the printing and writing paper into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the printing and writing paper in this State.

The producer of food serviceware is the person who first sells the food serviceware in or into this State.

For all other packaging that is a covered product, the producer of the packaging is the person who first distributes the packaged item in or into this State.

A small business qualifies for exclusion if it has a gross revenue of less than $5 million for the organization’s most recent fiscal year or sold less than one metric ton of covered products in or into the state in the most recent calendar year.

Restaurant, food cart, or similar business that sells food to be immediately consumed and is not a producer of food serviceware is excluded.

A manufacturer of a beverage sold in a beverage container that sold in or into Illinois less than 5 metric
tons of covered products, including, but not limited to, secondary and tertiary packaging for beverage containers, for use in this State in the most recent calendar year is excluded.

Public bodies are excluded.

Nonprofit organizations are excluded.

Retailers that operate a single retail sales establishment, have no online sales, and are not supplied or operated as part of a franchise or a chain are excluded.

Each producer must register with and be a member of a PRO that administers a producer responsibility program.

If the Agency approves more than one producer responsibility program, the producer responsibility organizations with approved programs shall establish a producer responsibility organization coordinating body and submit a coordination plan to the Agency for approval.

A PRO must have members with a combined market share that is at least 10% of the total combined market share of all producers of covered products.

Producer responsibility organization means a nonprofit organization.

A PRO must provide for the collection and responsible recycling of a specified list of covered products identified by the state that are not collected in municipal programs. These “producer-collected materials” are a subset of the total materials collected for recycling.

A PRO shall, upon request, fund in advance or reimburse, the eligible expenses of a local government or the local government’s service provider for eligible costs as provided in this section.

The cost coverage must support the PRO’s obligations as defined in the law, including but not limited to: collection of specified “producer-collected materials,” transportation of collected materials from locations distant from processing facilities, expansion of municipal collection programs as identified by a needs assessment, contamination removal, and commodity risk fee (paid to recycling processing facilities), and as necessary to meet the statewide plastic packaging recycling goal.

A PRO, in consultation with the Illinois Recycling System Advisory Council, shall develop educational resources and promotional campaigns to promote the uniform statewide collection list.

The cost coverage must ensure that covered products collected for recycling will be transferred to responsible end markets.

The program plan must describe how PRO fees will be distributed to processors to improve infrastructure.

The program must establish material-specific base fee rates for all covered products sold or distributed in or into this state by members of the PRO. The PRO may propose an alternative fee structure, but must satisfy the requirements, provide incentives for environmental impact reduction, and establish uniform fees for producers with less than $10 million gross revenue in the recent fiscal year, or sold less than 5 metric tons of covered products.

In addition to the base fees, a PRO's membership fee schedule must incentivize producers to continually reduce the environmental and human health impacts of covered products by offering fee adjustments to producers that make or have made changes to the ways in which they produce, use and market covered products.

A producer responsibility organization’s membership fee schedule must consider the post-consumer content of the material (if the use of post-consumer content in the covered product is not prohibited by federal law).

A producer responsibility organization’s membership fee schedule must consider life cycle environmental impacts, as demonstrated by an evaluation (LCA).

A producer responsibility organization’s membership fee schedule must consider the product-to-package ratio. A producer responsibility organization's membership fee schedule must also consider the producer’s choice of material.

A producer responsibility organization's membership fee schedule must consider the recycling rate of the material relative to the recycling rate of other covered products.

The bill sets the following statewide recycling rate goals for plastic packaging and food serviceware:

1. At least 25% by 2028 and in each subsequent year.
2. At least 50% by 2040 and in each subsequent year.
3. At least 70% by 2050 and each subsequent year.

On or after January 1, 2038, the statewide plastic recycling goal may be adjusted after consideration of environmental, technical, and economic conditions. An adjustment may not change the goal to less than 35% or more than 70%.

The program must maximize the use of existing infrastructure.

A producer responsibility organization shall work with local governments, collection service providers, and other affected parties to provide recycling service to multifamily properties that do not receive recycling service or that do not meet standards for adequate recycling service. A PRO must also meet convenience standards and collection targets for “producer-collected materials,” to be established during a rulemaking process.

The program plan must describe how PRO fees will be distributed to processors to improve infrastructure.

No later than December 31 of each year in which an approved producer responsibility program plan is required to be operated in this State, a producer responsibility organization must have members with a combined market share that is at least 10% of the total combined market share of all producers of covered products.

The state shall approve, approve with conditions or reject a plan submitted, or an amendment to a plan, no later than 120 days after the date on which the department receives the plan or plan amendment from the PRO.

The state has the power to enter and inspect, at any reasonable time, any public or private property, premises, or place for the purpose of investigating either an actual or suspected violation of this bill. A PRO must retain records for no less than 5 years and must make them available to the department.

No later than July 1 of each year, a PRO must submit an annual report on the development, implementation, and operation of the producer responsibility program to the state for approval.

Educational resources and campaigns must be culturally responsive to diverse audiences across the state, including people who speak languages other than English and people with disabilities. The resources must be printed or produced in languages other than English and accessed easily and at no cost to local governments and users of the recycling system.

The state, local governments, and the Illinois Recycling System Advisory Council, shall conduct a study of equity in Illinois' recycling system to determine conditions and make recommendations, including goals to achieve continuous improvement. The department shall provide public involvement opportunities for underserved communities during the study. There must be an equity study every 4 years.

The agency, in consultation with the Illinois Recycling System Advisory Council, shall conduct a statewide needs assessment to determine the challenges facing residents of multifamily housing and make recommendations for improvements to allow for effective and equitable recycling opportunities for residents of multifamily housing. There must be a multifamily house needs assessment every 4 years.

The program plan requires PRO-developed resources and materials to include how to properly prepare materials for recycling, education on the importance of not placing contaminants in commingled recycling collection, and container signs or decals.

The program plan must include a communications program for responding to questions involving the uniform statewide collection list, recycling services, and outreach to local governments to ensure information is accurate and consistent across the state.

The Illinois Recycling System Advisory Council will advise the state and PRO on issues related to the implementation of the legislation like review producer responsibility program plans, plan amendments and program reports, make recommendations to state and the PRO related to the establishment and maintenance of the list of specifically identified materials.

This bill establishes a stakeholder group called The Illinois Recycling System Advisory Council. The council consists of 17 members appointed by the Governor, one member from the Senate, and one member from the House of Representatives. The two members may not be from the same political party. The Governor must appoint four representatives of local governments, two representatives of community-based organizations representing the interests of historically underserved groups, one owner or operator of a small business, two representatives of environmental nonprofit organizations, four representatives of the recycling industry, including local governments’ service providers, processors or material end users, and four representatives of producers of covered products or producer trade associations or suppliers.

Mechanical recycling means a form of recycling that does not change the basic molecular structure of the material being recycled.

The Agency shall adopt and periodically revise a contamination management fee to be paid by PRO(s) to commingled recycling processing facilities to compensate the facilities for the costs of removing and disposing of covered products that are contaminants.

The Agency shall conduct a statewide needs assessment to identify the contribution of different types of covered products to litter and marine debris in Illinois. The needs assessment may include recommendations for additional PRO responsibilities. If no recommendations are included, the Agency must include an explanation of why PRO responsibilities are not currently needed.

A producer responsibility organization shall accept the value of print and online advertising services in lieu of all or a portion of a membership fee described from members that are newspaper or magazine publishers. The producer responsibility organization may consider the in-State reach of the advertising when determining the value of the advertising.

It creates a legislative task force to study the issue of confusing and misleading labels and produce a report to the legislature by June 1, 2022.

A producer may demonstrate to the agency that a material is exempt from the requirements for a covered product if the material is collected through a recycling collection service not provided under the opportunity to recycle, does not undergo separation from other materials at a commingled recycling processing facility, and is recycled at a responsible end market. If only a portion of the material sold in or into this state by a producer meets the criteria, the portion that meets the criteria is exempt and the portion that does not meet the criteria is a covered product.

The agency shall adopt and periodically revise a processor commodity risk fee to be paid by PRO(s) to commingled recycling processing facilities to ensure that producers share in the costs of fully processing commingled recyclables that are covered products and to allow local governments to reduce the financial impacts on ratepayers. The processor commodity risk fee shall be based on the eligible processing costs of facilities less the average commodity value of recyclable materials processed by facilities.