Tennessee Senate Bill 573 (2023) - (Failed)

Covered products include packaging materials regardless of recyclability that are a 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 this state. Specifically, this is primary, secondary, and tertiary packaging intended for the consumer market and service packaging designed and intended to be filled at the point of sale, including carry-out bags, bulk goods bags, and take-out and home delivery food service packaging.

Packaging does not include:

1. Packaging materials intended to be used for the long-term storage or protection of a durable product and that are intended to transport, protect, or store the product for at least five years
2. Packaging material used exclusively in industrial or manufacturing processes
3. Packaging material used to contain a product that is regulated as a drug, medical device, or dietary supplement by the federal food and drug administration
4. Packaging material used to contain a product that is regulated under the Virus-Serum-Toxin Act
5. Packaging material used to contain a product that is required to be sold in packaging material that meets the requirements of the Poison Prevention Packaging Act
6. Any other material that the department, after consultation with the advisory board, determines by rule to not be a covered material

Producer is defined as a person who uses covered materials for the sale or distribution of a product in this state under the person's own name or brand.

A producer can also be the person who is a licensee of a trademark under which a covered material is sold, offered for sale, distributed, or otherwise used in a commercial enterprise in this state, regardless of whether the trademark is registered.

Lastly, a producer can be the person who imports into this state a product that includes a covered material and that is sold, offered for sale, distributed, or otherwise used in a commercial enterprise in this state.

Excluded from the definition of producer is a person with less than one million dollars ($1,000,000) in realized gross total revenue during the immediately preceding calendar year or a person who used less than one (1) ton of covered materials for products sold or distributed within or into this state during the immediately preceding calendar year.

Government entities are excluded from the definition of producer.

Nonprofit organizations are excluded from the definition of producer.

Producers must form a PRO to implement a producer responsibility plan.

A producer may comply individually and submit a program plan proposal to the advisory board and department.

A producer responsibility organization must be a non-profit organization.

The producer responsibility organization will work with recycling services to utilize and expand on existing recycling services and infrastructure. They also may work with recycling services that request reimbursement for costs associated with transporting, collecting, and processing covered materials that are identified in the producer responsibility plan.

The plan must cover costs related to recycling services, meaning the services provided for the recovery and recycling of covered materials by local governments and other providers, including the collection, transportation, processing of covered materials from the consumer to the end market, curbside services, and drop-off centers.

The plan must cover costs related to public outreach, education, and communication concerning the recycling of covered materials.

The plan must cover administrative costs of the PRO and the administration, review, oversight, and enforcement of the producer responsibility plan by the department.

The plan must cover costs related to material litter remediation and prevention.

The plan must cover costs related to market development investments that improve reuse, contamination reduction, and recycling infrastructure.

The PRO must establish a fee structure that varies based on the quantity of covered materials a producer sells, distributes, or imports in this state.

The fee structure must also be modulated based on recyclability and other eco-modulation factors.

The dues will be lower for producers who use covered materials that contain higher amounts of recycled content.

The lowest dues will apply to producers who use covered materials that are reusable.

There will be higher dues for producers who use covered materials that contain higher levels of high concern chemicals.

The highest dues must apply to producers who use covered materials that are not readily recyclable.

The PRO shall establish performance goals for each covered material type at five-, ten-, and fifteen-year rolling intervals. The goals must include post-consumer recycled content goals, recyclability and recycling rate goals, reuse goals, packaging reduction goals, contamination reduction rate goals, and any other goals required by the advisory board or the department. The goals must set a minimum that aims to exceed the national average.

By July 1, 2024, a producer shall establish a producer responsibility organization.

By July 1, 2026, the producer responsibility organization shall submit a producer responsibility plan proposal to the department and the advisory board. When approved by the department, the PRO shall begin implementation of the producer responsibility plan within six (6) months of approval.

On or after January 1, 2027, a producer shall not sell or distribute any products packaged in covered materials in this state unless the producer is participating in the PRO producer responsibility plan or an individual producer responsibility plan.

The department will review the plan and may approval for a PRO producer responsibility plan or individual producer responsibility program plan at any time for good cause. If the department rescinds a plan, the PRO or individual producer may amend and resubmit the plan for approval.

The PRO shall annually report to the department and the advisory board the progress toward meeting producer responsibility plan requirements and goals for the immediately preceding year

A producer or PRO that with any violations will be subject to civil penalties starting at $5,000 for the first violation, an additional $1,5000 for each day the violation continues. For a second violation, a civil penalty of $10,000 for the first day that the violation occurs and $3,000 for each additional day the violation continues. For a third or subsequent violation, a civil penalty of $20,000 for the first day that the violation occurs and $6,000 for each additional day the violation continues.

The PRO plan must describe the actions taken or that will be taken for public outreach, education, and communication concerning the recycling of covered materials.

The advisory board shall advise the PRO throughout the needs assessment, plan proposals, and the annual reports.

An advisory board of 13 members will be formed and be appointed by the commissioner of environment and conservation.

The membership of the advisory board must represent all geographic regions of this state, including urban and rural counties and municipalities. The board will have the following members:

1. Three voting members representing local governments in this state
2. One voting member representing a materials recovery facility
3. One voting member representing a hauler of recyclables
4. One voting member representing an environmental nonprofit organization
5. One voting member representing a community-based nonprofit organization working in the area of solid waste
6. One voting member representing a trade association or chamber of commerce, or other business advocacy organization representing businesses that are headquartered in this state
7. One voting member representing a packaging material supplier that is not a producer, with the member rotating to a packaging supplier of a different type of packaging material each term
8. One voting member who has experience representing underserved communities
9. One voting member representing a solid waste landfill
10. The commissioner of environment and conservation, or the commissioner's designee, shall serve as a non-voting member
11. One non-voting member representing a PRO

Recyclable means a covered material that can technically and safely be recycled.

Recycling means the process by which recovered materials are transformed into new products, including the collection, separation, processing, and reuse of recovered materials either directly or as raw materials for the manufacture of new products.

Recycling does not include energy recovery or energy generation by means of combustion, use of covered materials as or in production of a fuel, or landfill disposal of discarded covered materials.

On or after July 1, 2028, it is a violation for a person to sell or distribute in this state any packaging designed to include ortho-phthalates, bisphenols, per and polyfluoroalkyl substances (PFAS), styrene, lead and lead compounds, cadmium, mercury, hexavalent chromium and hexavalent chromium compounds, perchlorate, benzophenone and its derivatives, formaldehyde, halogenated flame retardants, toluene, and other chemicals of high concern as determined by rule of the department.

The PRO is responsible for facilitating at least one needs assessment every 10 years with the advisory board and the department.

The department shall review and annually update a minimum recyclables list.